Joint Committee On Human Rights Written Evidence


9.  Submission from British Irish Rights Watch on the Terrorism Bill

1.  INTRODUCTION

  1.1  British Irish Rights Watch (BIRW) is an independent non-governmental organisation that has been monitoring the human rights dimension of the conflict, and the peace process, in Northern Ireland since 1990. Our services are available, free of charge, to anyone whose human rights have been violated because of the conflict, regardless of religious, political or community affiliations. We take no position on the eventual constitutional outcome of the conflict.

  1.2  We welcome this opportunity to make a submission to the Joint Committee on Human Rights' call for evidence on the Terrorism Bill.

  1.3  Although BIRW's remit does not include international terrorism, our experience in Northern Ireland is relevant to some of the provisions of the Terrorism Bill, which we therefore comment upon in this submission.

  1.4  As a general comment, BIRW is concerned at the deluge of legislation aimed at combating terrorism which has been produced since 9/11. Terrorism is not overcome by outlawing it. Those who have launched the series of terrorist attacks around the world are not deterred by anti-terrorism laws. The more we react to terrorism by passing repressive laws, the more we bring about the very reactions the terrorists are seeking. There is a very real danger of manufacturing martyrs to the cause if people are convicted of ill-defined offences, or wrongfully convicted, or sent back to countries that practise torture. The July 2005 attacks on London by "home grown" terrorists showed that people can be recruited who are not themselves direct victims of repressive laws or actions, but who identify with those victims or fear that they may become such victims. Governments tend to legislate to prove that they are "doing something" about a problem, but such knee-jerk reactions have no real impact on terrorism—if anything, they fan the flames. The government would be better advised to study the causes of terrorism, especially of the home grown variety, and to come up with positive rather than negative measures that will make the United Kingdom more inclusive and thus less likely to spawn terrorists.

  1.5  Furthermore, many of the offences created by the Bill already exist, so much of it is redundant.

2.  ENCOURAGEMENT OF TERRORISM [CLAUSE 1]

  2.1  This proposed offence is so vague as to be meaningless. It is virtually impossible to prove that someone "knows or believes", still less "has reasonable grounds for believing" anything. It is harder still to prove that someone publishing a statement knows or believes what the general public's understanding of that statement will be, especially when that understanding can encompass indirect threats. The proposal dissolves into thin air when it posits the idea that no-one need in fact have been encouraged or induced to commit any offence [Clause 1(3)].

  2.2  Moreover, this Clause makes unacceptable inroads into the right to freedom of expression. It seems to us that, if this law were to be passed, it would become illegal for someone to say, for example, that the invasion of Iraq was wrong and the Iraqi people are justified in resisting the invasion. While BIRW naturally takes no position on the war in Iraq, we do believe strongly in the right of people in a democracy to speak their minds. Stifling freedom of expression merely ensures that we do not understand our enemies or what we are up against. We agree with Voltaire's maxim that, however much we may disagree with what someone says, we would die for their right to say it. Once that principle is abandoned, democracy is dead.

  2.3  In any case, this Clause is unnecessary. The following offences already exist:

    —  to invite support for a proscribed terrorist organisation[57];

    —  to "encourage, persuade or endeavour to persuade any person to murder any other person";[58]

    —  to "counsel or procure" any other person to commit any indictable offence;[59]

    —  to "solicit or incite" another person to commit any indictable offence;[60]

    —  to incite another person to commit an act of terrorism wholly or partly outside the UK;[61] and

    —  to conspire with others to commit offences outside the UK.[62]

3.  GLORIFICATION OF TERRORISM [CLAUSE 2]

  3.1  One person's terrorist is another person's freedom-fighter. Many people around the world, including the British during the Second World War, have used identical tactics to those adopted by terrorists in the legitimate defiance of tyranny. Successive United Kingdom governments sanctioned collusion by the security forces with both republican and loyalist paramilitaries in Northern Ireland which resulted in the loss of many lives which might otherwise have been saved. Whether an act is an act of terrorism depends on who is defining it; no objective definition exists. The difficulty with defining terrorism is that, instead of describing an act, it describes the motivation of a person carrying out any of a range of acts, many of which, absent the terrorist motive, are perfectly harmless and legal. To give an example from Northern Ireland, a woman who buys a pair of rubber gloves to protect her hands while doing the washing up is behaving perfectly legally. If, on the other hand, she buys them to protect her hands while making a bomb, she commits an offence. The problem for the police and the courts, is how to prove that the mere act of purchasing the gloves was illegal.

  3.2  Under this Clause, any Irish person who expresses support for any act of republican or loyalist terrorism in the past 20 years would be committing an offence and could face up to five years in jail. Such a situation would scarcely assist the still-fragile peace process. Indeed, we suspect and fear that no such prosecution would ever be made in relation to the conflict in Northern Ireland, but that this Clause would be used against the Muslim community, raising the spectre of racism and creating an atmosphere of mistrust and resentment which plays straight into the hands of the terrorists.

  3.3  This Clause also offends against the right to freedom of expression. Of course the glorification of acts of violence is offensive, but banning it does more harm than good.

4.  DISSEMINATION OF TERRORIST PUBLICATIONS [CLAUSE 3]

  4.1  One of the commonest mistakes made by governments seeking to legislate against terrorism is to assume that governments are always benign. In reality, most human rights abuses are perpetrated by governments, as report after report by the United Nations testify. Were a tyrannical government ever to gain power in the UK, would those who believe in democracy find themselves on the receiving end of this Clause? In the hopes that that is an unlikely hypothesis, do we really want to step onto the slippery slope of banning books?

  4.2  Banning the publication of terrorist publications is in any case futile, given the existence of the internet.

  4.3  While it may be possible to make a case for banning literature that describes how to kill and maim people, the interaction of this Clause with those on the encouragement and glorification of terrorism could lead to draconian consequences, and would again violate the right to freedom of expression.

  4.4  The definition of a publication is so wide that a map of the street plan of Belfast, or the London telephone directory, could in theory be described as a terrorist publication for the purposes of this Clause.

  4.5  Clause 3 (4) (b) refers to information that is "likely to be understood" as being useful for terrorist purposes. We doubt that the courts will find it easy to develop any sensible way of interpreting such a vague concept.

5.  TRAINING FOR TERRORISM [CLAUSE 5]

  Once again, the difficulty of defining terrorism objectively rears its head.

  Under this Clause, a chemistry professor who suspects one of his or her students may be studying chemistry because the student wants to become a terrorist commits an offence. Do we really want to live in a society where teachers feel obliged to vet their pupils, or where teachers go to jail for up to 10 years because a court decides they must have harboured suspicions about a pupil?

6.  ATTENDANCE AT A PLACE USED FOR TERRORIST TRAINING [CLAUSE 6]

  6.1  The test of someone "not reasonably failing to understand" that a place is being used to train terrorists is another subjective, unworkable test. With such a law on the statute books, might not any sensible person avoid setting foot in premises where martial arts were taught? Or pharmacy? Or civil engineering?

  6.2  This Clause demonstrates at its most obvious the difficulties of legislating against terrorism. It took years before anyone realised that GP Harold Shipman was a mass murderer, yet he killed his victims under the noses of relatives and medical and other staff. It is one thing to target those who set out to learn the dark arts of terrorism, but prosecuting innocent people who happen to have attended a building where other people where trained in terrorism, on an assumption about what they must have understood, is oppressive.

7.  RADIOACTIVE AND NUCLEAR DEVICES AND OFFENCES [CLAUSES 7-10]

  7.1  We understand that the Nuclear Material (Offences) Act 1983 already covers the offences set out in Clauses 7 to 9.

  7.2  While we recognise that threatening to explode a nuclear device [Clause 9] is a potentially serious crime, we are aware of a case where an Irishman who threatened to assassinate the American President during a visit to Japan was sectioned under the Mental Health Act and prosecuted, despite the fact that he was suffering from a severe personality disorder and had no means of visiting Japan, let alone carrying out an assassination. In a democracy, courts should be able to take account of the likelihood of a defendant being able to carry out the threat in determining how serious the crime may have been.

  7.3  So far as trespass is concerned, we would be concerned to see an extension of the scope of the already wide-ranging provisions on criminal trespass. We fear that people wanting to protest against the building of a civil nuclear reactor in their area might fall foul of Clause 10.

8.  PENALTIES [CLAUSES 11 AND 12]

  8.1  An increase in the maximum penalty for possession for terrorist purposes to 15 years [Clause 11] is draconian. In Northern Ireland, we know of many cases where people who have been found to be in possession of weapons or explosives were either innocently looking after items for friends, not realising what those items were nor that the friend was involved in terrorism, or had no idea that such items had been hidden on their premises. Proving such a negative is very difficult, especially when others are unwilling to incriminate themselves in order to prove the other person's innocence.

  8.2  A maximum sentence of life imprisonment for threatening a nuclear attack [Clause 12] is objectionable unless it is modified to take account of the person's capacity to actually carry out that threat.

9.  INTERPRETATION OF PART 1 OF THE BILL [CLAUSE 16]

  9.1  The definition of terrorism, borrowed from s.1 of the Terrorism Act 2000, is too wide. That definition reads, in part:

    "1.—(1) In this Act "terrorism" means the use or threat of action where—

      (a)  the action falls within subsection (2),

      (b)  the use or threat is designed to influence the government or to intimidate the public or a section of the public, and

      (c)  the use or threat is made for the purpose of advancing a political, religious or ideological cause.

    (2) Action falls within this subsection if it—

      (a)  involves serious violence against a person,

      (b)  involves serious damage to property,

      (c)  endangers a person's life, other than that of the person committing the action,

      (d)  creates a serious risk to the health or safety of the public or a section of the public, or

      (e)  is designed seriously to interfere with or seriously to disrupt an electronic system.

    (3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1) (b) is satisfied."

  9.2  First, the term "serious violence" is problematic. It is not, of course, a scientific description or a term of art, and there is a danger that one judge's or jury's act of serious violence would be another's minor misdemeanour. Is an act which could have potentially very serious consequences, such as planting a bomb, an act of serious violence if the bomb does not detonate and no-one is hurt? Or would that qualify as a "threat" of serious violence, although it is in fact an act? The definition of serious violence is made extremely elastic by incorporating "serious disruption of an electronic system". This could elevate a hoax telephone call that brings traffic to a standstill into an act of terrorism. Children in Northern Ireland have been known to commit such acts frequently.

  9.3  We are particularly concerned about the inclusion of crimes against property within the definition. This broadens the concept of terrorism way beyond the previous definition in the Prevention of Terrorism Act (Temporary Provisions) Act 1989, which was:

    "the use of violence for political ends, [including] any use of violence for the purpose of putting the public or any section of the public in fear".

  9.4  The inclusion of threats within the definition is also of concern. Before anyone is convicted on the basis of a threat they have made, a careful assessment is needed of a number of factors, including:

    (a) whether s/he intended to carry out the threat;

    (b) whether the recipient of the threat was put in any real fear;

    (c) whether the maker of the threat was capable of carrying it out; and

    (d) whether s/he would in fact have done so.

There is, in our submission, a great distance between an actual act of terrorism that is easily recognisable as such whatever the definition and the vague notion of threatening such an act.

  9.5  Similarly, the concept of intimidation is vague and open to many interpretations. We have special difficulty with the idea of intimidating the public, and even greater problems with the intimidation of a section of the public. If some group uses violence—or merely threatens violence—with the object of intimidating the public, it is surely the use or threat of violence which matters, since measuring the group's capacity to intimidate the public or the public's susceptibility to being intimidated is highly problematic. As for a section of the public, how large or small does a portion of "the public" have to be to qualify as a "section"? Is a group of mothers who threaten a paedophile who moves into their area committing an act of terrorism? These objections also apply to the definition of "the public" in Clause 16.

  9.6  Finally, the phrase "political, religious or ideological cause" is very broad indeed. If serious violence includes disruption, is a group of animal welfare supporters who sit down in front of a lorry full of veal crates therefore terrorists?

  9.7  The objective of most actual terrorism is usually the overthrow of the state, or at least the status quo, although loyalist violence in Northern Ireland has been considered, by its supporters if no-one else, as pro-state. That being so, it is crucial that a democratic state does not over-react to terrorism or the threat of terrorism, or mistake justifiable acts of civil disobedience for terrorism, because to make any of these errors can catapult a state out of democracy and into despotism. As a lesser consequence, these errors can cause the state to react in ways that bring the law into disrepute, thus making it more difficult to uphold the rule of law. In either case, the state runs the risk of acting in such a way as to create the very situation the terrorists are seeking to achieve. It is for this reason that the definition of terrorism is so important. The definition in the Terrorism Act 2000 is so broad and diffuse that it runs the risk of creating crimes without real victims, an outcome which would bring the law into disrepute and undermine the rule of law.

10.  GROUNDS OF PROSCRIPTION [CLAUSES 17 AND 18]

  10.1  It follows from what we have said above about the proposed offence of glorifying terrorism [Clause 2] that we oppose the inclusion of glorification of terrorism as a ground for proscription.

  10.2  Proscribing organisations and prosecuting their members drives them underground and increases their allure for certain people. Membership is difficult to prove and prosecutions on such a basis are open to abuse, especially in the light of the provisions contained in ss 108 and 109 of the Terrorism Act 2000. These provide that evidence from a senior police officer will be enough to convict someone of membership of a prescribed organisation, and suspects' silence under police questioning will be taken as corroborative of that evidence. Proscription may breach the right to freedom of expression and to freedom of association.

11.  EXTENSION OF PERIOD OF DETENTION BY JUDICIAL AUTHORITY [CLAUSES 19 AND 20]

  11.1  BIRW is fundamentally opposed to the extension of detention without trial to a period of up to three months. The grounds for such detention would be:

    "(a)  to obtain relevant evidence whether by questioning him or otherwise;

    (b)  to preserve relevant evidence; or

    (c)  pending the result of an examination or analysis of any relevant evidence." [Clause 20 (3)]

  A person should not be arrested without reasonable grounds,[63] and it is not acceptable to arrest someone first and then seek the grounds which should have been established before the arrest. If proper groundwork has been done before an arrest, then there should be no need for prolonged detention before charge. It would be wholly unacceptable to question a suspect for three months. The police already have sufficient powers of search and seizure that it ought not to be necessary to imprison a person for three months in order to prevent him or her form destroying evidence. Nor is it acceptable to detain someone for so long pending the outcome of forensic or other tests.

  11.2  Detention without charge for three months is the equivalent of a six months' prison sentence with time off for good behaviour. Such a long period of detention undermines the presumption of innocence and violates Article 5 (3) of the European Convention on Human Rights, which provides that detained persons should be produced promptly before a court. A three-month detention period would require a derogation from the Convention, in our view, which could not possibly be justified, despite the bombings in London last July, as there is no state of emergency threatening the life of the nation, as proscribed in Article 15.

12.  ALL PREMISES SEARCH WARRANTS [CLAUSE 21]

    In view of the extensive search powers already contained in Schedule 5 of the Terrorism Act 2000, and the specific "all premises" warrant provisions in ss 113 and 114 of the Serious Organised Crime and Police Act 2005, the provisions in this proposed Clause seem redundant.

13.  SEARCH, SEIZURE AND FORFEITURE OF TERRORIST PUBLICATIONS [CLAUSE 22]

    In view of the extremely broad definition of a terrorist publication in Clause 3, the threshold for issuing a warrant—reasonable grounds for suspicion—seems far too low. A search for the range of materials covered by Clause 3 would be likely to be extremely disruptive to a person's office or home, and completely disproportionate to the right to privacy and family life protected by Article 8 of the European Convention on Human Rights.

14.  STOP AND SEARCH POWERS [CLAUSES 23 AND 24]

    As with so much else in this Bill, we fear that these extensions to existing powers will act as a stalking horse for other areas of the law, beyond terrorism, and will be used ultimately, for instance, against those engaged in legitimate domestic protest.

15.  CONCLUSION

    This Bill is unlikely, in our view, to do anything but make a bad situation worse. It creates vague offences which undermine fundamental human rights and freedoms, whilst contributing little or nothing to defence against terrorism. Faced with outrages like the July 2005 bombings in London, it is all too easy to over-react and to put in place repressive and devise laws that undermine the very democracy we are seeking to defend. We hope that the Joint Committee on Human Rights will advise the government not to go ahead with the Terrorism Bill, but instead to seek positive ways to reinforce our society so that it becomes a place less likely to breed terrorism or to become a target for it.

October 2005





57   Terrorism Act 2000, s 12 Back

58   Offences against the Person Act 1861, s 4. Back

59   Accessories and Abettors Act 1861, s 8. Back

60   DPP v Armstrong (Andrew) [2000] Crime LR 379 DC. Back

61   Terrorism Act 2000, s 59. Back

62   Criminal Law Act 1977, s 1A. Back

63   Police and Criminal Evidence Act 1984, s 24, as amended by the Serious. Back


 
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