Joint Committee On Human Rights Minutes of Evidence

Examination of Witnesses (Questions 100-119)


31 OCTOBER 2005

  Q100  Chairman: We asked about this last week.

  Ms Marks: Indeed; I saw.

  Mr Crossman: May I make one small final observation on the clause 1 offence, which is that the Home Secretary, when giving evidence, certainly in front of the Home Affairs Committee, was quite adamant about what he believed would and would not form an offence under the new clause if and when passed. It seems that the definition of terrorism under the 2000 Act, when applied to a speech offence, actually goes further than what the Home Secretary had in mind as being the appropriate definition of terrorism. One area where it was particularly noticeable was when he was talking about the overthrow of the Ceaucescu regime in Romania, where he was saying that it was not his intention that anyone encouraging that would fall within the definition of somebody committing an offence under clause 1. My reading of the Terrorism Act 2000, section 1, is quite clear, that that would fall within the definition. In that case it might be appropriate, if there is a discrepancy between what the definition of terrorism is for a speech offence and what the definition of terrorism is elsewhere, to revisit the definition of terrorism and give a more narrow definition in this Act specifically to the speech offences.

  Q101  Dr Harris: Coming back to the issue of Article 5 of the Convention against Terrorism of the Council of Europe which, Dr Metcalfe, you mentioned in your answer, there are broadly two differences I detect beyond the restriction to intention which you have mentioned. One is the fact that that uses the language of "incite" and not "encourage", which you have not commented on, and, secondly, it talks specifically in its article and explains in its appendix the need for the sub-clause that it should cause a danger that one or more such terrorist offences may be committed. Do you believe, in furtherance to Lord Lester's question, that clause 1 could be improved along those lines or is it beyond hope?

  Dr Metcalfe: I always believe that it is possible to improve these things, but I agree with you that it is another requirement that was made in the Johannesburg Principles. There has to be a causal nexus, a likelihood that the statement itself will incite or encourage further violence. Mainly that is to prevent people from making statements in the context of perhaps a play or a novel which are unlikely, given the literary context, to give rise to further violence even if on the face of it they disclose an intention to incite such violence. You also asked in relation to "encourage" and "incite". I cannot be too clear on this. I would simply say that "incite" discloses a clearer intention than "encourage".

  Q102  Dr Harris: Does encouragement equal indirect incitement? Are they congruent or would you say one was wider?

  Dr Metcalfe: I would say that "encouragement" is wider than "incitement", but then again I have trouble with the idea of indirect incitement. It was a distinction made by the Home Secretary, and also found in the language of Article 5 itself that there is a distinction between direct and indirect incitement. If you look at our own criminal law, our own criminal law makes no such distinction. It is perfectly possible to be guilty of incitement in an indirect fashion under the criminal law that I have talked about. This is an important point that I want to highlight. The Home Secretary appeared to suggest in his evidence to the Home Affairs Committee that there was a problem with people inciting acts in general as opposed to specific acts, that is to say, you could only be guilty of incitement if you said to someone to blow up a particular bus at a particular time on a particular date, not acts of terrorism in general. If it were the case that our criminal law does not allow people to be prosecuted where they disclose an intention to incite acts of violence in general, then perhaps I might agree that there is a need for an amendment to make that clear, but I do not in fact think that is true and so for that reason we have not argued for it.

  Q103  Dan Norris: I suspect that you may have different answers to the question I am going to ask, which relates to acts preparatory to terrorism. Do you accept that there is a gap in the present law which makes it difficult to prosecute where there is clear evidence of an intention to commit a terrorist act, but there is no evidence of the precise details of any planned terrorist act? In other words, it is the intention but not the other aspects.

  Mr Crossman: This obviously, as we all know, has been going around as an idea for some time. It was said at the time that there might be a gap in the criminal law but it had not been identified. Terrorism by its nature is likely to involve more than one person but the element of conspiracy is the need to show the common intention between several people. It may well be that if you charge several individuals with an offence of "acts preparatory" that might get around, and suitably might get around, the need to show that common intention, but the element of intention is there within the offence of "acts preparatory". The only major concern I have about the offence as it is currently drafted is the breadth of the definition of "any conduct". When, God forbid, say, you are looking at a future terrorist attack and you know who might have been involved or who is supposed to have committed the attack and you start retracing their course of conduct over a period of time, and you have anyone who might have come into contact with them suddenly falling under suspicion when you have such an incredibly broad concept as "any conduct", what I felt was that it might be good for the legislation to at least give an indication of the sorts of activity that might be thought of as being appropriate for charging. It would have to be non-exhaustive, and legislation often will contain non-exhaustive lists as an indication of a type of behaviour, but in principle the element of intent is there and therefore I do not think there is a fundamental problem with this offence.

  Q104  Dan Norris: Let me be clear: do you feel there is a gap or not really?

  Mr Crossman: Yes, I think there was a gap in that the existing conspiracy laws required a need for a common intention between the various people who were going to be charged. Because there is not that need, even though it may well be that there are several people and it might be possible to prove a common intention, it is not a requirement and I think that is fair enough.

  Q105  Dan Norris: Is that a view shared by all of you, that there is a gap?

  Dr Metcalfe: I take the point that Gareth made just now about the requirement to conspiracy. I would say that there have been other existing terrorist offences which would be used. For instance, section 57 of the Terrorism Act 2000 makes it an offence to possess an article for a purpose connected with the commission, preparation and instigation of an act of terrorism. It seems to me very difficult to think of any kind of preparatory act which might not involve, say, the possession of an article or, under section 58, making a record of information. That said, we do not oppose the creation of this clause. What we do agree with in relation to what Gareth said is that we are concerned with its breadth. It seems to me that "any preparatory conduct" is so broad that there is a danger that it lacks legal certainty. It is simply unclear how a person might avoid the criminal law. We agree with what Liberty has suggested, that you should have a non-exhaustive list of kinds of activities, things like purchasing, procuring or otherwise obtaining any article, material, ingredient or substance. That is the kind of thing that you want to be looking for—and this is hypothetical, of course—so that for the purposes of the rule of law people can know in advance when they are likely to be breaking it. Otherwise, if you have too broad statements there is a risk that people will inadvertently break the law.

  Q106  Mr Shepherd: Let me just come in on that, Dr Metcalfe. You do not see a gap that you could concede because you see other instruments of law that could be used to meet the charge. On the other hand, Mr Crossman thinks that there is possibly a gap, but what you are united on is that, whether there is a gap or is not a gap, it is too wide. Is that a fair summary so far?

  Dr Metcalfe: Yes, that is correct.

  Q107  Mr Shepherd: I have a difficulty here and maybe you can help me with it. I am very nervous of the huge extension of law, and you have cited it and we have had briefs to this effect, covering everything, and so I am much more nervous in saying that if there is not a gap why are we creating additional law that is on the statute book that may be used in ways that we have not quite understood?

  Dr Metcalfe: As Mr Crossman made clear, so long as an ingredient of this offence is that you must have the intent to commit an act of terrorism.

  Q108  Mr Shepherd: That goes without saying.

  Dr Metcalfe: I think that is the strongest safeguard that you can have in legislation of this kind. Where that ingredient is absent we are completely opposed to the creation of this offence.

  Q109  Lord Lester of Herne Hill: It is fair to say, is it not, that the Newton Committee and Lord Carlile of Berriew both recommended some such extension in their reports?

  Dr Metcalfe: To be clear on this, the Newton Committee said that they could not see that there was a gap, but Lord Lloyd in his review of anti-terrorism legislation in 1996 recommended it, and yes, Lord Carlile has recommended it more recently. We agree with the creation of this offence only for the avoidance of doubt, because we do not think that it would be unreasonable to create a law of this kind even if we do not in practice think there is a shortage of criminal offences. It does not make anything illegal that should not already be illegal, if you fathom my drift.

  Q110  Mr Shepherd: So you still do not see a gap yourselves?

  Dr Metcalfe: In practical terms I do not think, as the Director of Public Prosecutions told this committee last year, there is a shortage of existing powers but for the avoidance of doubt we are happy for this offence to go forward.

  Q111  Dan Norris: Can I draw you out a little on this? Most of us are politicians here and I am still confused by that. What about a situation where there is evidence that an individual has made unsuccessful attempts to obtain chemicals or other substances, all of which are legally available but which in combination can be used to make deadly poisons, say, ricin? With what under the current law could such a person be charged in the absence of any evidence of the precise use which is planned for the poison? To put another alternative to you so that I can perhaps understand whether there is a gap or not and how you see it, if you are not opposed in principle to the creaton of such an offence, are there any drafting amendments you would want to see which would meet whatever concerns you do have?

  Dr Metcalfe: To answer the second part of your question first, we have suggested an amendment which I can read to you in terms but probably is a wee bit long-winded. It provides a non-exhaustive list of the kind that Mr Crossman has already talked about, simply saying things like, "`Preparatory conduct' may include making or constructing any article, device or item, obtaining any good or service, creating, manufacturing or preparing any substance". In relation to the first part, this is an unsatisfactory answer but this is the nature of the reality of criminal law and there is no getting round this problem: the problem identified by the Newton Committee is not that you cannot tell that a person has gone out and bought all these deadly substances. The problem is satisfying a jury beyond reasonable doubt that that person had the intent of committing a terrorist offence. Buying household items that may be used in combination to create a deadly substance should not be illegal. It should only be illegal if you are doing those things with the intent of committing a terrorist offence. Creating new offences will not get you round the difficulty of proving that the person had the intention in the first place. That is what the Newton Committee said. It said that the problem is not with the availability of criminal offences. The problem is simply the evidential one: how do you show that the person was engaged in terrorist activity as opposed to just getting a bunch of household chemicals together?

  Q112  Dan Norris: Is there anyone else who wants to comment on this?

  Mr Zilli: I would just like to make one point which I think underscores a lot of what has been said and that also underscores the concerns that were expressed by some members of the committee in the questioning of the Home Secretary. That is that we already have a whole panoply of criminal offences—aiding, abetting, procuring, inciting and so on—and so in relation to this proposed offence it has to be looked at in the context of the definition of terrorism that has already been provided, which is extremely vague, over-broad and gives certainly Amnesty cause for concern. Secondly, there are the concerns expressed by members of the committee in relation to the necessary requirements of the criminal law, that is, precision and clarity and the need for intent to be proved.

  Q113  Lord Judd: It is true to say, is it, that all of you without exception are unhappy about the proposed powers to extend the ability of the Home Secretary to proscribe organisations?

  Mr Crossman: Extremely unhappy.

  Q114  Lord Judd: No-one dissents from that unhappiness?

  Mr Crossman: No.

  Q115 Lord Judd: If that is the case it would be helpful to the committee if you could succinctly and clearly put the basis of your anxiety.

  Mr Crossman: We had a draft Bill published which had an offence of glorification of terrorism. The Home Secretary accepted and the Government accepted that this offence went too far. It was effectively a strict liability offence that would criminalise speech with no requirement even for negligence. If you are going to extend proscription you are saying, "We accept that this is going too far to make a criminal offence of glorification but we are going to extend the grounds of proscription so that if a non-terrorist organisation, a political organisation, which satisfies that criterion of the extension of glorification is proscribed it will be a criminal offence not for you to go and glorify terrorism but for you to support or do anything to further the activities of an organisation that has been proscribed because it glorifies terrorism". If you accept, as the Government has said, that it is going too far to criminalise glorification then you cannot at the same time justify the extension to proscription so that organisations that glorify can be proscribed.

  Q116  Lord Judd: But you would agree, would you, that, whatever one's personal views about it, if the law stipulated that certain behaviour is not acceptable and is an offence, it is logical that such conduct should be a ground for proscribing an organisation?

  Mr Crossman: I am sorry. I am confused.

  Q117  Lord Judd: If the law states that certain activity is an offence, even if you personally do not think the law should say that, would you agree that it is logical for that offence to be taken into account when deciding whether or not to proscribe an organisation?

  Mr Crossman: Yes. If the law has decided that behaviour of a type is criminal, but what I am saying is that if the Home Secretary has already turned round and said that that is going too far, then you have to apply consistency and say that it is going too far in relation to the proscription. I would not be coming out with that argument if the existing offence of glorification was still in the Bill. I am saying you need consistency.

  Q118  Lord Judd: Could I therefore ask another question about this whole issue? Do you think it is possible to approach this in a sound way in legal terms without examining more fully the context in which such things can happen? For example, as far as I am aware the proposed legislation nowhere deals with the issue (why should it, some might argue) of state terrorism. If people are discussing a response to state terrorism does that not possibly put a different complexion on a discussion that might take place if there were no state terrorism in the situation in which action was being discussed?

  Dr Metcalfe: As I understand your question you are pointing out the problem with the breadth of the provision, which is that if you extend proscription to include discussions of terrorism you are referring, of course, to the definition of terrorism as defined in section 1(1) of the Terrorism Act 2000, and that, of course, applies to all political violence of any kind. We may feel that in our own liberal democratic society political violence is unacceptable but there are other countries and other situations around the world in which it is very easy to talk about political violence as being in some circumstances as justified. You have had numerous examples, such as the ANC. I found particularly interesting the mention you made of state-sponsored terrorism because, coming from New Zealand, I am, of course, familiar with the Rainbow Warrior affair which was an instance of the French Government blowing up a ship and killing a Portuguese civilian in Auckland harbour. Yes, these are difficult and complicated issues, but the issue that you raise goes further, deeper if you like, back to the definition of terrorism itself.

  Q119  Lord Lester of Herne Hill: None of you has made the point, as I thought you would, that proscribing an organisation is a more serious restraint on free speech, than having a criminal penalty. As Sir William Blackstone reminds us, it is a prior restraint which is more draconian than a threat of prosecution. None of you has made that point. Is that right or wrong?

  Dr Metcalfe: We have made it in our written evidence. We have not made it so far in the session but I would agree completely with that point because it triggers so many other powers in addition to that.

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