Examination of Witnesses (Questions 100-119)
MR LIVIO
ZILLI, DR
ERIC METCALFE,
MR GARETH
CROSSMAN, MR
JAMES WELCH
AND MS
ALEXANDRA MARKS
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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