Counter-Terrorism and Border Security Bill

Written evidence submitted by Hoda Hashem (CTB04)

Written Opinion submitted by Hoda Hashem, Law student at Durham University

I am a soon to be final year Law student at Durham University, and I take particular interest in Terrorism legislation, and whether they are compatible with human rights and established legal principles.

What are the proposals

Earlier this month the government set out its proposals for the new Counter-Terrorism and Border Security Bill 2018. The Home Secretary, Sajid Javid, has recently denied that the new laws would protect national security at the expense of the freedoms and rights that terrorists seek to undermine. Instead, he accepted that a balance can be struck between liberty and security, and this was something the new laws would aim to do. However, it seems that some of the proposals threaten this balance and may be in breach of human rights and established principles if they pass through Parliament unchanged.

The current laws under section 58 of the Terrorism Act 2000 make it unlawful to be in possession of material likely to be useful to a terrorist, and this includes internet downloads. Academics and journalists conducting terrorism-related research can avoid a conviction by proving that they had a ‘reasonable excuse’ for being in possession of the material. However, the government wants to extend this law to cover situations where someone has repeatedly viewed such material, without the need to show that they were doing it with a criminal intention.

The problems with the proposals

It’s important that these laws do not criminalise innocently curious behaviour, or those who view such material in shock or disgust, or even those who view it as a way of coping with terrorist attacks, as Liberty recently pointed out to the Joint Committee on Human Rights. To do so would be in breach of human rights and principle, particularly the right to freedom of expression under Article 10 of the European Convention on Human Rights, which includes within it the right to both ‘receive and impart information’. The government’s response to this is the ‘three clicks’ approach, which they say will not include people who have mistakenly or innocently clicked on such content once or twice.

However, under the ‘three clicks’ approach, anyone who views content that is likely to be useful to a terrorist three times can find themselves at risk of prosecution. We know from the case of R v G that this does not include everyday material, but it can range from bomb-making manuals to material that is available in mainstream stores such as Waterstones. Just earlier this year, a student who had returned from fighting ISIS in Syria found himself being prosecuted under section 58 for having in his possession a copy of the ‘Anarchist Cookbook’. He was unsurprisingly acquitted by the jury.

The proposals also beg the question as to why someone can be innocently curious once or even twice, but not a third time? This was a question posed by Max Hill QC, who is the Independent Reviewer of Terrorism Legislation. Sajid Javid seemed to accept that this is a problem during Parliamentary discussions of the Bill. In fact, he admitted that ‘I am not pretending there is something magical about the number three’, and he goes on to state that it would rest in the discretion of the Police and CPS to decide who to prosecute. These are concerning remarks from the Home Secretary, as the certainty and precision of laws are essential principles of our legal system. It allows ordinary people to know when their behaviour might veer into the realm of criminality, and it also means that the government and police cannot arbitrarily choose who to prosecute. In effect, it is wrong for the Home Secretary to argue that it would be down to the Police and CPS to fix a bad law. As a matter of principle, it is for Parliament to ensure that the laws it passes are clear enough to be applied consistently and, more importantly, predictably.

Alex Chalk MP, during the Second Reading of the Bill, has been keen to point out that it is currently possible to prosecute someone who downloads a bomb making manual or information on how to wreak havoc with a vehicle, but someone who streams this three times, and makes notes of this information, would fall outside of the law. Of course, however, such a case would come under existing section 58 laws, which makes it an offence to ‘make a record’ of material likely to be useful to a terrorist. Furthermore, someone who is actively seeking to ‘wreak havoc’ clearly has a criminal intention to be involved with terrorism, which is not a requirement under the new proposals. The example that some MPs seem to have in mind seems far detached from the reality of the proposed laws.

It is possible that in some cases, viewing this material can indicate what the government calls a ‘pattern of behaviour’, or in other words it can suggest that the person is interested in- if not sympathetic towards - terrorist causes. But that is all it would be, a thought, a feeling, an idea. Without evidence that the person wants to go that step further, as in Alex Chalk MPs example, and cause carnage, we are at risk of criminalising mere thoughts, or what Max Hill QC refers to as an ‘aspiration’ to terrorism. This is not to say that such behaviour should not be monitored by the Police and Security Services, but to subject such people to prosecution, and a maximum sentence of 15 years imprisonment, seems contrary to principle. Surely such behaviour is most appropriately dealt with through the government’s Prevent strategy instead.

A French Example

The difficulties in passing legislation of this kind have been explored by the French Parliament, which tried to make it a criminal offence to ‘habitually’ access websites that supported or called for acts of terrorism, unless there were "legitimate reasons," such as journalistic or academic research. This was struck down by the French Constitutional Court twice, firstly for violating free speech and the freedom to communicate ideas and opinions, but secondly because the laws were not clear or certain enough. These proposals seem strikingly similar to the ones proposed by the Home Secretary, and as a matter of fact, the French version was even more specific as it was aimed at terrorist websites, rather than anything which is likely to be useful to someone preparing or committing terrorist acts. If the French example is anything to go by, the new laws are a cause for concern.

Safeguards

If the legislation is to be passed, it’s vital that there are sufficient safeguards to protect people who are not acting with bad intentions. There is one important protection in the proposals, and this is the defence of ‘reasonable excuse’, and this is something that would probably be available for academics and journalists to use. That said, someone will have been arrested, kept in custody, interviewed under caution, and put in the dock before they can use this defence before a jury. It is an important safeguard, but one that comes into use far too late in the process.

One way of dealing with the problems posed by the new laws is to amend the legislation for it to include the requirement that the person is acting with a criminal or terrorist intent. This would include cases that Alex Chalk MP refers to, where someone is accessing such material with a view to causing carnage, but excludes those who look at it with curiosity, bad judgement, or those who click on the content mistakenly. If the government is serious about striking the right balance between liberty and security, the offence must include a criminal intent, or it must be withdrawn altogether. This position was supported by Max Hill QC in his oral evidence to the Joint Committee on Human Rights.

June 2018

 

Prepared 2nd July 2018