Examination of Witnesses (Questions 153-159)
PROFESSOR CLIVE
WALKER
31 OCTOBER 2005
Q153 Chairman: We are now joined by Professor
Clive Walker of Leeds University for the second part of this evidence
session. I think you were here earlier on for the previous evidence
session. A lot of the questions are going to be along similar
lines, I suspect. Perhaps I could start off by asking you about
the lacuna which the Home Secretary has identified in relation
to the law of general incitement which the proposed offence of
provocation to commit a terrorist offence is designed to plug.
Do you accept that there is such a lacuna in the law?
Professor Walker: I start from
the premise, taking the Home Secretary's word on the point, that
he is trying to enforce Article 5 of the European Convention on
Prevention of Terrorism. If we stick with that formulation in
Article 5, then you could say that there are perhaps two areas
that amount to a lacuna, although that does raise issues about
freedom of expression and I am not sure I accept the premise of
the question. But in terms of those lacunas they would be related
to the fact that the existing law is primarily directed either
against forms of encouragement in relation to proscribed organisations,
first of all, or, secondly, relate to forms of incitement or encouragement
of acts of terrorism abroad rather than acts of terrorism at home.
I would point to those two differences, but I would also point
to the fact that Article 5 is somewhat different in a number of
crucial respects from the way in which clause one is actually
worded, and some of those we heard about earlier. They relate
in particular to the fact that Article 5 requires specific intent,
whereas clause one does not, and also clause five talks about
an intended outcome in terms of the commission of a terrorist
offence, and it does not mention words like "preparation",
"instigation" or, indeed, "acts of terrorism, "acts
of terrorism" not per se being an offence in British
law.
Q154 Chairman: What laws do you say
already cover this then?
Professor Walker: I would probably
endorse a lot of what was said in the earlier session, and I am
going over some of their ground, but the ones that I think are
of a special relevance here: I mention broadly laws to do with
proscribed organisations, and laws to do with incitement abroad—they
fall into those two categories. The laws relating to proscribed
organisations are set out in section 12 and they cover, for example:
"inviting support for a proscribed organisation"—that
is in section 12(1); section 12(2) is about "arranging, managing,
assisting a meeting to support a proscribed organisation";
section 12(3) is actually "addressing a meeting"; and
section 13(1) is "wearing any item or displaying any article
which supports a proscribed organisation". Of course "proscribed
organisation" includes groups like al-Qaeda which I am not
sure is an organisation. It is very wide organisation if it is
an organisation. It is more like a concept than an organisation.
So it is very easy to support a proscribed organisation. You certainly
do not have to have a membership card to support it. That is one
area. The other area I said was incitement abroad, and that is
covered by section 59 of the Terrorism Act. Any form of incitement
of terrorism abroad is an offence under section 59. That was passed
not too long ago, particularly with internet sites in mind. Again,
as was mentioned earlier, these incitements can be very general
in their nature; they may not be aimed at specific people or specific
acts. Aside from all of those there are lot of other offences.
Dr Metcalfe mentioned some. I would also mention public order
offences. I can remember as along ago as before the Prevention
of Terrorism Act 1974, which is when anti-terrorism laws in Britain
started, and it was not the case that people escaped prosecution
for supporting the IRA; they were prosecuted under various public
order offences for supporting the IRA and no doubt still could
be.
Q155 Dan Norris: I am a sure you will
correct me if I am wrong, Professor, because I want to talk a
little bit about some of the written evidence that you have put
down in relation to the training of terrorism and acts in preparation
for it. I notice that you base some of your criticisms of the
Bill in those areas on the expression based offences in the Bill,
you reference the principle that "only speech which causes
harm not offence should be criminalised"—I hope I have
got that right—and your criticism of the new offences of
training for terrorism and acts preparatory to terrorism appear
to be based on the same principle, that the conduct in question
is not sufficiently related to harm. Why then does the harm principle
apply to non-expression based offences?
Professor Walker: As a liberal
democrat in one sense of that term at least I would say that the
harm principle applies to all offences, and, indeed, all forms
of state coercion; it is not just relevant to forms of offences
which relate to expression; and it might be, I think, a good principle
to apply across the board. It is why, for example, we penalise,
let us say, murder and theft but we have some hesitations about
penalising forms of activity which we may find disgusting or outrageous,
which was one of the words used earlier, or reprehensible, all
of which are part and parcel of the liberal democracy. We all
outrage, disgust each other from time to time, but that is living
in a free society for you. Seeking to put it in terms of a common
phrase, there are those words that are like sticks and stones
and do hurt your bones and words that do not; and so we are looking
for some sort of link to actual activity which causes harm. The
difficulty with preparatory acts, if we look to that, or training,
indeed, is that at that stage of the process it is very equivocal
what people are actually doing, what they have in mind, and there
is a great danger we catch the wrong people. I came from Leeds
today with a train ticket and a holdall. It does not make me a
terrorist, does it? Although some people with train tickets from
Leeds were terrorists. It is a question of the link to the activity
and at what point we intervene and prove a crime has been committed,
which is why, for example, the Criminal Attempts Act 1981, which
currently sets the limit on the extent of the criminal law, uses
the phrase that "an attempt is an act which is more than
merely preparatory towards the commission of an offence".
That is the actual phrase in section one of the Criminal Attempts
Act. The reason why the law draws the line at that point is because
it wants to be sure that people we are putting in prison really
are bad people and that we are not making mistakes; we are not
intervening at a point when their actions are equivocal and their
intentions are equivocal.
Q156 Dan Norris: Could I follow that
up a little? Though you are critical of the width of the new offences
that concern training and preparation, do you accept there is
some scope, nonetheless, for new offences which would cover conduct
not currently caught by existing offences and comply with human
rights obligations as well? What amendments, if you do feel that
way, would you be proposing?
Professor Walker: Here we probably
should look at least at two clauses, may be three. If I can take
clauses 5, 6 and 8 together as all are dealing with forms of preparation
for terrorism, the case of 6 and 8 dealing with training. In the
case of clause 5, my difficulty with clause 5 is I find it very
difficult to imagine factual situations which do not fall under
section 57 of the Terrorism Act, which again was mentioned earlier.
Section 57 is the provision which criminalises the possession
of an article in circumstances which give rise to a reasonable
suspicion that the possession is for terrorist purposes. If I
have an article, I can see at least there is something tangible
there. If do not have an article, what is it? This preparation
which is not an article seems to me to be very vague. So, to answer
your question, yes, I can see in logic there is a gap there—that
there may be forms of preparation which do not involve materials
or the possession of something which is for the preparation of
terrorism, but I am saying it is dangerous to extend the criminal
law in that way because, if I do not have something material there,
then I am not sure whether the action can be sufficiently linked
to terrorism. Indeed, I mentioned in my submission that the explanatory
memorandum which tries to give an example, in a way which I find
it very difficult to do, does actually give an example of the
possession of materials which is exactly covered by section 57,
and there you do not need clause five. That is clause 5. Clause
6, yes, again in logic there is a gap. The existing offences of
relevance include section 54 of the Terrorism Act, which talks
about training in weapons, munitions training, training where
you have to shoot an AK47, or make a bomb, or whatever it might
be, and that covers, I think, a broad field, but clearly not as
broad as clauses 6 or clause 8, particularly clause eight which
is a passive clause of "attendance at a training camp".
Yes, I can see again in logic there is an extension of the law
here. My question is do we want to extend the law that far because
the actions are very equivocal? We are casting suspicions very
wide here—for example, if people go off to, let us say,
Madrassas in Pakistan, does that immediately cast suspicion on
them in all cases? If they access combat-related materials on
the Internet, does that immediately cast them as potential suspect
terrorists liable to three months detention? Potentially yes,
I think is the answer under this legislation. I hope you catch
my drift that it is becoming a very wide net that we are casting.
In terms of what I would think would be justifiable, I should
come back to the European Convention again which the Government
says it is trying to enforce. If you look at Articles 6 and 7
of the Convention on the Prevention of Terrorism, it talks about
"active recruitment" rather than being recruited, it
talks about the "provision of training" rather than
being trained, and I would suggest also the tightening of the
mens rea in clause five and six would also be helpful:
that you intend that the training or the preparation does result
in terrorist acts, that that is an element of the offence.
Q157 Lord Judd: Professor Walker,
you have obviously thought about these issues in some depth and
perspective. In your evidence you make the point that clause 17
of the Bill, extending the jurisdiction of UK courts over acts
committed abroad, may result in the UK Government being asked
"to do the dirty work of dubious foreign governments".
Can you tell us a bit more about how you believe the clause gives
rise to this risk?
Professor Walker: It is a combination
of the impact of clause 17 and the breadth of the offences that
we have just been through, clause one, clause 5, clause 6 and
clause 8. Let me give you an example, as it might be the best
way of doing this. If we imagine that this Bill was enforced 10
years ago, let us say, or even five years ago, and I am the head
of, let us call it, the Movement for a Democratic Iraq, and I
plot against the Government of Iraq. I encourage those who are
daft enough to listen to me by means of publication to engage
in forms of terrorism and engage in training to commit forms of
terrorism. The forms of terrorism I have in mind might include
some of the following: to commit serious violence against a person.
That is terrorism under section one of the Terrorism Act if committed
with certain motivations. In this case I encourage other people
to kill Saddam Hussein's torturer in chief, whoever he was. Serious
damage to property: I encourage people to blow up the headquarters
of the secret police in Baghdad, or destruction to the electronic
systems of the Government, which is also part of the definition
of terrorism in section one, I encourage my followers to disrupt
electronic systems in a way which stops the wiring of assets to
a Geneva bank account or to the subversion of Food for Oil programme,
let us say. All of those, are now covered by clause 1, and clause
17 then says that actions under cause one committed abroad are
also covered.
Q158 Lord Judd: You make an interesting
case. Could I just pursue this for a moment? I do not want to
put words into your mouth, but the Home Secretary has been very
strong in saying that he does not believe there is any situation
anywhere in the world today that can in any way exonerate terrorism.
You made the point that there are different forms of terrorism,
and we have terrorism against the innocent, you can have terrorism
against state institutions, but basically do you think that that
concept that there is nowhere which justifies it is valid?
Professor Walker: Where I would
agree with the Home Secretary is in terms of the forms of terrorism
which are defined by universal offences, and there are quite a
few universal offences relating to terrorism. For example, we
have offences of hijacking; we have offences of killing diplomats,
taking hostages, committing torture. All of these are universal
offences based on UN conventions. We have offences of terrorist
bombings, a convention related to terrorist bombings, bombings
directed against civilians. Here, I am with the Home Secretary,
I would agree that in all circumstances those are forms of activity,
no matter how bad the regime, whether it is Saddam Hussein or
whoever, they are not permissible. They are a bit like war crimes
except there is not a war. It is an analogy that I think is useful
in that case. My difficulty is this though, that our own definitions
of terrorism in section one of the Terrorism Act go well beyond
those universal offences, but whilst I can argue that it might
be justifiable to apply those wider concepts in the context of
a liberal democracy called the United Kingdom, I might have some
doubts whether it is justifiable to employ the same restraints
on resistance, if I can call it that, in all societies, in the
society of Saddam Hussein to give one example.
Q159 Lord Judd: You are basically
making the point that state terrorism has to be taken as seriously
as any other form terrorism?
Professor Walker: There are some
governments in the world we would rather see deposed and resisted,
yes.
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