14. Submission from Human Rights Watch
on the Draft Terrorism Bill
"But let us be clear about this: while the
State has the right to employ to the full its arsenal of legal
weapons to repress and prevent terrorist activities, it may not
use indiscriminate measures which would only undermine the fundamental
values they seek to protect."Walter Schwimmer, Secretary
General, Council of Europe[92]
INTRODUCTION
Human Rights Watch condemns all acts of terrorism
as a direct assault on the fundamental values of human rights,
democracy and the rule of law.[93]
However it is precisely in the aftermath of such atrocities as
the London bombings in July that the strength of these values
is tested, and the greatest vigilance is required. In order to
preserve those values, it is vital that any new measures proposed
in the legitimate fight against terrorism must fully respect international
human rights standards.
This briefing considers the draft Terrorism
Bill published on 15 September 2005. It is a preliminary briefing
to assist members of those parliamentary Committees considering
the measures prior to a final Bill being formally introduced.
As it is only a preliminary briefing we concentrate on offences
criminalizing free expression (clauses 1 and 2) and the proposal
for extending pre-charge detention (clauses 19 and 20).
These far-reaching provisions are to be introduced
in the fifth major piece of anti-terrorist legislation in five
years. The offences of "provocation" (cl.1) and "glorification"
(cl.2) criminalize speech-related conduct that is only peripherally
connected to acts of terrorism. Human Rights Watch is of the opinion
that these offences are neither necessary nor adequately defined,
thereby posing a significant breach of the fundamental right of
freedom of expression under Article 10 of the European Convention
on Human Rights (ECHR). At the same time we consider that the
extended detention period before charge of up to three-months
is wholly arbitrary and disproportionate, not justified on the
evidence and is likely to be as counter-productive as internment
was in Northern Ireland.
Human Rights Watch takes the view that the full
integration of all citizens and residents into society is an important
long-term prophylactic against radicalization. That depends upon
an open debate, tolerance and full respect for universal human
rights and the rule of law. Measures that breach human rights
norms may deliver short-term security, but in the long-term, they
are likely to erode confidence among minority communities, undermining
their willingness to cooperate with the police and security service,
and creating a fertile ground for messages of hate.In making these
submissions we have taken account of a number of international
instruments relating to human rights and anti-terrorist measures.
These include the 1995 Johannesburg Principles on National Security,
Freedom of Expression and Access to Information,[94]
the 2002 Council of Europe's Guidelines on human rights and the
fight "against terrorism,[95]
and United Nations Security Council resolution 1456, which emphasizes
that
States must ensure that any measure taken to
combat terrorism comply with all their obligations under international
law, and should adopt such measures in accordance with international
law, in particular international human rights, refugee, and humanitarian
law.[96]
Our analysis reflects the United Kingdom's obligations
under international human rights law, as enumerated in the European
Convention for the Protection of Human Rights and Fundamental
Freedoms (ECHR) and the International Covenant on Civil and Political
Rights (ICCPR). It also takes into account the four guiding principles
set out by Lord Lloyd in his review of anti-terrorism legislation
published in 1996, which remain highly relevant when assessing
new legal measures in this area.[97]
CLAUSE 1ENCOURAGEMENT
OF TERRORISM
Human Rights Watch has serious concerns about
the proposed new criminal offence contained in clause 1 of the
bill. Clause 1 makes it an offence for a person to publish a statement
when he or she "knows or believes, or has reasonable grounds
for believing" that members of the public to whom the statement
is published are likely to understand it as a "direct or
indirect" encouragement or other inducement to commit a terrorist
act. It carries a sentence of imprisonment of up to seven years
on conviction.
This clause is intended to implement article
5 ("public provocation to commit a terrorist offence")
of the Council of Europe's Convention on the Prevention of Terrorism
adopted on 3 May 2005 and signed by the UK on 16 May 2005 and
signed by the UK on May 16 2005.[98]
The Convention requires states parties to "adopt such measures
as may be necessary to establish public provocation to commit
a terrorist offence. . . when committed unlawfully and intentionally,
as a criminal offence under its domestic law."[99]
Under the Convention, the offence is committed when a public message
"with the intent to incite the commission of a terrorist
act" causes a danger that such an offence may be committed.[100]
The message may either directly or indirectly advocate terrorist
offences.
In so far as this covers an offence of direct
incitement the UK laws are already sufficiently in place as we
show below. In terms of an offence of indirect incitement the
real difficulty lies in assessing where the boundary lies between
this and the legitimate voicing criticism as is acknowledged in
the Explanatory Report to the Convention.[101]
In assessing this fine line, it is important
to recognize the special status enjoyed by freedom of expression
under the ECHR, particularly as it is seen as a prerequisite for
the enjoyment of many of the other rights and freedoms. As the
European Court of Human Rights (ECtHR) has said
Freedom of expression constitutes one of the
essential foundations of a democratic society and one of the basic
conditions for its progress and for each individual's self-fulfillment.[102]
As a consequence, any proposed restrictions
must be subjected to very close scrutiny as to whether the measure
is both "necessary" and "proportionate" so
as to comply with the grounds on which this right may be limited
under article 10(2).
The ICCPR also requires that restrictions on
free expression be shown to be "necessary."[103]
In considering the limitations of free expression under the ICCPR,
it is important to take note of the analysis of the United Nations
Human Rights Committee, the body which supervises state compliance
with the treaty. In its General Comment on freedom of expression,
the Committee emphasized that "when a State party imposes
certain restrictions on the exercise of freedom of expression,
these may not put in jeopardy the right itself."[104]
Not shown to be necessary
According to the ECtHR the question of whether
a restriction on free speech is "necessary" must be
convincingly established as a matter of general principle.[105]
The situation is that there are a plethora of existing offences
available in the context of incitement in the UK. Some are terrorist-specific
such as the offence of incitement of terrorist violence made illegal
under section 59 of the Terrorism Act 2000. Others are to be found
in the ordinary criminal law where the offence of incitement is
commonranging from a general offence of incitement to commit
an indictable offence to the offence of incitement to murder.
Making linguistic changes by using "encouragement" and
"inducement" rather than "incitement" does
not show that the proposed new offence is necessary. Indeed, both
a commonsense understanding of these words and the way in which
they were variously used in the discussions preceding the Convention
on the Prevention of Terrorism, suggests that they cover the same
or sufficiently similar behavior so as to come within the existing
offence of incitement under the 2000 Act. This is certainly so
in relation to a direct offence of incitement.
The government has yet to explain why existing
criminal offences are not sufficient to meet the threat posed
by speech which incites violence or other criminal acts. They
have also not produced evidence showing how existing offences
are operating in practice. In this context it is worth noting
that a minister of Islam known as "Sheikh Faisal" was
recently convicted of offences of soliciting murder under section
4 Offences against the Person Act 1861 and the public order offence
of racial hatred. He was accused of creating a number of inflammatory
audio tapes urging Muslims to fight and kill, among others, Jews,
Christians, Americans, Hindus and other "unbelievers".[106]
Sheikh Abu Hamza has been charged with similar offences, including
solicitation to murder of non-Muslims, incitement to racial hatred.[107]
Both prosecutions suggest that the law is sufficient to cover
speech that incites violence.
As the Newton Committee of Privy Counsellors
noted in their review of the Anti-Terrorism, Crime and Security
Act 2001, the difficulties with sustaining prosecutions for terrorism
offences in the United Kingdom are primarily related to matters
of evidence rather than the gaps in the criminal law.[108]
The Newton Committee did not identify any of the proposed new
"speech" offences as being necessary. In 2004, the Joint
Committee on Human Rights (ICHR) reached a similar view, arguing
that the evidential see above problem in terrorism prosecutions
"is unlikely to be helped by the creation of still more criminal
offences."[109]
In evidence to the JCHR, the Director of Public Prosecutions said
that there is already "an amount of legislation that can
be used in the fight against terrorism" and that the existing
criminal law "covers a huge swathe of activity that could
be described as terrorist". It is also notable that the Home
Office February 2004 consultation paper, Counter-terrorism Powers:
Reconciling Security and Liberty in an Open Society, did not itself
identify a need for these new offences.
Offence lacks legal certainty
It is a well-established principle that laws
must be of such certainty and legal precision that people are
able to regulate their conduct to avoid infringement. This principle
of legality under article 7 ECHR is confirmed by the Commissioner
for Human Rights, Alvaro Gil-Robles, in commenting on the draft
article 5 [then article 4] of the Convention on the Prevention
of Terrorism. He said that "if the Article were incorporated
as it stands in the States Parties' domestic law, it would be
particularly difficult to predict the circumstances in which a
message would be considered as public provocation to commit an
act of terrorism and those in which it would represent the legitimate
exercise of the right to express and idea or voice criticism freely."[110]
As a line of cases before the ECtHR confirms, this is even more
important in the area of free expression where it is essential
for any democracy to ensure that controversial or shocking ideas,
including criticisms and points of view be neither inhibited nor
prohibited.[111]
We believe that this is exactly what has happened in the drafting
of the offence of encouraging terrorist acts. It lacks sufficient
clarity to know what behavior constitutes the offence, and thus
violates the principle of legality under the ECHR.
Overly broad
The new offence is overly broad. The breadth
of the proposed offences is closely related to the definition
of "terrorism" as it is this that triggers the offence
in the first place. As newly defined in the Terrorism Act 2000,
"terrorism" includes the use or threat of action including
"serious damage to property" that is "designed
to influence the government or to intimidate the public or a section
of the public," and "made for the purpose of advancing
a political, religious or ideological cause."[112]
As written, the definition encompasses far more than obvious terrorist
conduct such as participating in bombing and hijacking and could
be read to apply to certain sorts of industrial action or unauthorized
public demonstrations which cause significant economic loss.[113]
Indeed it is so wide that on its margins it dispenses with the
need for violence and focuses on such matters as creating "a
serious risk to the health and safety of the public" and
"actions designed seriously to interfere with or seriously
to disrupt an electronic system." It has therefore the potential
to reach many forms of non-violent direct action as well.
No intention required
As presently drafted it is only necessary to
show that a person "knows or believes" or "has
reasonable grounds for believing" that a statement is likely
to be taken as an encouragement to an act of terrorism. Even putting
aside the unusual, if not curious, mix of a subjective ("knows
or believes") and an objective test ("has reasonable
grounds for believing"), it is clear that the question of
a person's specific intention is irrelevant.
The absence of an intent requirement is contrary
to article 5 of the Convention for the Prevention of Terrorism,
where it is a condition that the offence of provocation be committed
"intentionally" in order for criminal liability to apply.[114]
It is also contrary to the ordinary requirements of criminal law
that specific intent is an essential ingredient to the commission
of offences considered so serious as to warrant a maximum prison
sentence of seven years or more. It is incumbent on the government
therefore to show why this offence is any different. Human Rights
Watch considers that it is against the fundamental principles
of criminal responsibility that people are at risk of losing their
liberty for a substantial period not because of what they intend
as to the effect that their words may have but solely because
of what they believe others may make of those words. This is further
emphasized by the fact that "members of the public"
is defined in the Bill as including anyone in the world.[115]
Without the requirement of intent, editorialists who discuss the
phenomenon of terrorism in controversial terms, without having
any intent of endorsing it or inducing others to engage in it,
might find themselves liable because of the actions of their readers
thousands of miles.
The lack of a specific intent requirement is
directly contrary to assurances from the UK government that the
new offence would require intent. On 20 July 2005, the Home Secretary,
Charles Clarke, told Parliament: "So direct incitement, when
it is done with the intention of inciting others to commit acts
of terrorismthat is an important qualificationwill
become a criminal offence." Similarly, the Lord Chancellor,
Lord Falconer, in dismissing concerns in a BBC News interview
that the new offence of indirect incitement could prevent honest
discussion said: "The proposal is that indirect incitement
should consist of statements made with the intention of encouraging
other people to commit terrorist acts."[116]
No causal link to violence required
The other requirement for the offence of provocation
in article 5 of the Convention is that the result of the statement
must be to cause a danger that a terrorist act might be committed.
This establishes the importance of a causal link between a statement
deemed to be provocative and the act that is to be prevented.
Although it is recognized that in most circumstances the prospect
of violent crime is fairly remote from the act of provocation
or encouragement complained of, the danger that it might be caused
is the factor that ultimately justifies its criminalization.
As presently drafted this causal link is only
that "members of the public" to whom the statement is
published "are likely to understand" it as an encouragement
to a terrorist act. There is no need to show that any person is
in fact so "encouraged" by the statement. Causality
is further attenuated in that "members of the public"
can include anyone in the world depending on how the statement
is published.In particular the causal link in the new offence
fails the imminence test as set down in the Johannesburg Principlesprinciples
that have been endorsed and followed by many international institutions
including the UN's Human Rights Committee. Principle 6 requires
that there is a direct and immediate connection between the expression
and the likelihood of such violence occurring.
CLAUSE 2: GLORIFICATION
OF TERRORISM[117]
Clause 2 provides that it is an offence for
a person to make a statement that "glorifies, exalts or celebrates"
the commission of any terrorist act (whether in the past, in the
future or generally) in circumstances where "it would be
reasonable for members of the public. . . to assume that the statement
expresses the views of that person". It carries a maximum
term of five years imprisonment on conviction.
This proposed offence attracts the same objections
as clause 1 and, in some respects, with more force. It is again
incumbent on the government to show that the offence is necessary
given existing offences. These include not only the offence of
incitement to terrorism (see above) but also the offence of displaying
support in public for a proscribed organization under section
13 of the 2000 Actwhich, in contrast to the five-year maximum
prison sentence proposed for the clause 2 offence, carries a maximum
sentence of six-months imprisonment.
In its terminology this offence falls within
the category of an apologie du terrorisme offence. This
category of offence is addressed in a study by a working party
of the Council of Europe, the ad hoc Committee of Experts on Terrorism
(CODEXTER).[118]
The Committee set out to examine the incidence and experience
of national provisions criminalizing the public expression of
praise, support, and justification of terrorist crimes in order
to analyze the potential risk of a restriction of fundamental
freedoms. The results show that the majority of states have so
far been able to do without a specific apologie du terrorisme
offence, with only three countries (Denmark, France and Spain)
having such a provision but arising from a general apologie
to crime offence that is already integrated into their domestic
law.While the subsequent Convention on the Prevention of Terrorism
indudes an offence of "public provocation to commit a terrorist
offence" to cover direct and indirect incitement to terrorism,
it is clear from the explanatory report to the Convention that
the aim of article 5 is to "make indirect incitement a criminal
offence."[119]
The Convention does not use the phraseology to be found in a typical
apologie du terrorisme offence. There is no evidence to
suggest that it requires an "apologie du terrorisme"
offence. Indeed, some states parties to the Convention have explicitly
understood it not to do so. The UK cannot therefore seek to rely
on the Convention to justify the introduction such an offence.
While the drafting is similarly imprecise to
that of the clause 1 offence, the consequences are likely to be
more serious given the difficulties with separating this kind
of apologie speech and acceptable free speech. This is
confirmed in responses to the CODEXTER survey mentioned above
when a number of countries acknowledged that making "apologie
du terrorisme" a specific crime is the more problematic
because of the possibility of infringing human rights. For example,
the Netherlands in its reply explicitly states that in its country
"apologie du terrorisme" is not a specific criminal
offence at this moment, nor is the creation of such an offence
envisaged since that would seriously infringe the constitutional
freedom of expression".
Despite these problems and the qualification
of the proposed offence as a serious crime by the length of the
prison sentence, there is no requirement of specific intent on
the part of the statement-maker. Not only is this contrary to
article 5 of the Convention on the Prevention of Terrorism but
it is also out of line with the "apologie du terrorisme"
laws in most of the few countries where it is already an offence.
For example, in Spain the crime of apologie is only a crime
of provocation when, by its nature and circumstances, it amounts
to intended "indirect incitement", that is, a statement
that is specifically intended to cause its audience to take unlawful
action. The statement is considered the exercise of free expression
when these conditions are not fulfilled. In Denmark the public
expression of approval (including appreciation and recognition)
of terrorist acts is an offence but only where it can be shown
that the person intended to contribute to the execution of a concrete
terrorist offence.
Unlike clause 1, in the Government's proposal
there is no attempt to create a nexus between the glorifying statement
and the actual risk that an offence is likely to be committed.
Those objections mentioned above therefore apply with even more
force. It is highly questionable whether creating such a serious
offence can ever be justified in the absence of a causal link
to the act that is being sought to be prevented.
Human Rights Watch also considers that the new
offence is likely to violate the freedom of expression under the
ECHR. In a series of cases, the ECtHR has held that speech criticizing
democracy and calling for the imposition of Sharia law[120]
or containing separatist propaganda[121]
cannot legitimately be subject to restriction provided that it
does not incite violence.
LIKELY IMPACT
OF PROPOSED
CRIMINAL OFFENCES
On the media
Both new speech offences are likely to have
an impact on the media, whether through self-censorship, or the
prosecution of journalists or editors. To put it at its most obvious,
it is questioned, for example, whether transmitting a statement
of a terrorist as happened with one of the London bombers could
fall within the offence of "encouraging or inducing"
a terrorist act. This is particularly so in the absence of a specific
intent requirement and with no provisions for a media defense.
It could therefore mean that material that may be freely transmitted
in other European countries or anywhere else in the world may
be banned on UK-based broadcasting services. This was effectively
the case with the Sinn Fein ban introduced in 1988 forbidding
the broadcasting of statements made by members of Sinn Fein. Not
only did the media render it something of a farce by using actors
to speak the words instead, it also reflected extremely badly
on the UK internationally. John Simpson, a journalist with the
BBC, complained in 1991 that the Iraqi government was using the
example of the ban to justify its own censorship.
Whilst such an impact on the media may not be
intended, it is essential that this is clarified and assurances
are given both by the government and in the drafting of the offences
that media reporting on terrorism will not fall foul of any of
the new measures.
Chilling effect on free expression generally
Even in the absence of any direct media restriction,
the other obvious danger is that such laws have a chilling effect
on free expression generally, creating self-censorship and inhibiting
political discourse, including criticism of the government. Universities,
schools, mosques and other places of worship are all likely to
be affected by the measures. This runs directly contrary to the
fact that public debates based on free and unhindered dissemination
of ideas and opinions are an important way of promoting understanding
and tolerance in the overall aim of preventing terrorism. And
while there is little or no evidence that criminalizing such speech
will deter terrorism, there is very strong evidence that it will
deter free expression.
Counter productive
In all these measures, unless it is convincingly
shown that they are necessary and fair, there is a danger that
the very communities whose support is needed in the fight against
terrorism will be alienated. This is particularly the case for
the Muslim community in the UK where previous counter-terrorism
measures, including indefinite detention of foreign terrorism
suspects, are regarded as having had a manifestly disproportionate
impact. For example, apart from organizations related to Ireland,
the majority of the groups proscribed under the 2000 Act are of
Islamic origin[122]
At the same time the new stop and search powers introduced by
the same Act have resulted in reports of disproportionate stop
and search of young Muslims. This includes a recent report from
the Metropolitan Police Authority which says that current practice
has created deeper racial tensions and severed valuable sources
of community information and criminal intelligence.[123]
CLAUSES 19 AND
20: EXTENSION OF
DETENTION PERIOD
The bill proposes that pre-trial detention without
charge in terrorist cases may be extended up to three months with
judicial supervision. Human Rights Watch is concerned that such
an extended period of detention without even sufficient evidence
to warrant a criminal charge may amount to a criminal punishment
without trial, in violation of the right to a fair trial and the
presumption of innocence. It is unclear whether the arrested person
will be informed promptly of the reasons for his arrest, as the
ECHR requires.
The current maximum period permitted in terrorism
cases in the UK is 14 days. Originally the period was for seven
days but this was extended to14 days with effect from January
2004.[124]
This period was set after 30 years of UK anti-terrorism legislation,
after a series of cases in the ECtHR, and after extensive parliamentary
debate. Since the 14-day period came into effect, the statistics
show that between 20 January 2004 and 4 September 2005, 357 people
have been arrested under the relevant detention provision, of
whom only 36 have been held in excess of seven days and only 11
of these being held for the full 14 days.[125]
Despite such statistics showing that the present 14-day period
is only rarely resorted to by the police, the current proposal
is that detention can be extended to 90 days which is a six fold
increase on the current period and is 30 times longer than that
allowed for any other crime, including murder and drug trafficking,
for example. As Human Rights Watch pointed out when the measures
were first announced, this period is equivalent to the average
time served for during a six-month prison sentence. As a point
of comparison, one of the recently-announced measures in Australia
that has been most criticized is the proposal to extend their
detention period from seven to 14 days so as to bring it in line
with the UK.
The police and the Crown Prosecution Service
(CPS) have sought to justify the extension by arguing that the
current limits are insufficient to investigate possible offences.
It is claimed that the extension would avoid charges being amended
as a result of ongoing investigations. In fact, it is common practice
for charges to be reviewed based upon an assessment of the evidence
and then amended.
It is also claimed that this extra time is needed
to review complex material. However the examples given of the
quantity of material that has had to be investigated in certain
terrorist cases including the 80,000 CCTV videos reviewed after
the July attacks, could not on a simple calculation have been
completed even within a three-months period. In addition to this
the police cite problems of encryption, complex international
networks, and possible hazardous materials. Whilst it is not doubted
that these investigations take considerable time and expertise,
this must be the same for major white collar fraud, drug importation
offences and other organized crime especially as there is usually
a similar international dimension to these crimes. No explanation
has been given why an extended period of detention is necessary
in order to facilitate the prosecution of terrorism offences when
it is not deemed necessary for other complex investigations.
Counter productive
The third advisory paper published with the
Bill explains that the government is committed "to better
understanding the process of radicalization and recruitment and
tackling the focal points at which young men and women are tempted
into violence." Since the majority of those held for extended
periods will be Muslims, extended preventive detention has the
potential to further antagonize a community who already feel that
they are disproportionately affected by counter-terrorism measures.
This concern will be exacerbated if the majority of those arrested
are subsequently released without charged.
A report from the Institute of Race relations
indicates that hundreds of Muslims have been arrested under terrorist
powers since the introduction of the 2000 Act before being released
without charge. The Home Office's official statistics give further
cause for concern. They show that of the 756 people arrested under
the 2000 Act between 11 September 2001 and 30 June 2005, only
122 were charged with a terrorist-specific offence under the 2000
Act, 141 with other criminal offences. A total of 22 people were
convicted. The measure therefore poses the very real danger of
mirroring the disastrous policy of preventive detention ("internment")
in Northern Ireland in the 1970s, which is now widely regarded
as having served as a strong motivation for the recruitment of
new members of the Irish Republican Army.
7 October 2005
92 Preface to the Guidelines on human rights and
the fight against terrorism adopted by the Committee of Ministers
on 11 July 2002 at the 804th meeting of the Ministers' Deputies,
Directorate General of Human Rights, December 2002. Back
93
See, for example, Human Rights Watch, UK: Nothing Can Justify
London Bombings, 7 July 2005 [online], http://hrw.org/english/docs/2005/07/07/uk11294.htm Back
94
Adopted on 1 October 1995 by a group of experts in international
law, national security, and human rights. Back
95
Adopted by the Committee of Ministers on 11 July 2002 at the
804th meeting of the Ministers' Deputies. Back
96
UN Security Resolution 1456 (2003). Back
97
Inquiry into Legislation against Terrorism (Cm:3420, London
1996), para 3.1: "(i) Legislation against terrorism should
approximate as closely as possible to ordinary criminal law and
procedure; (ii) Additional statutory offences and powers may be
justified, but only if they are necessary to meet the anticipated
threat. They must then strike the tight balance between the needs
of security and the rights and liberties of the individual; (iii)
The need for additional safeguards should be considered alongside
any additional powers; (iv) The law should comply with the UK's
obligations under international human rights law." Back
98
The treaty has yet to enter into force. As of 6 October 2005,
the treaty had 20 signatories, but no state had ratified the treaty.
(Six ratifications are required for it to enter into force). Back
99
Council of Europe Convention on the Preyention of Terrorism,
Article 5(2). Back
100
Council of Europe Convention on the Prevention of Terrorism,
Article 5(1). Back
101
see para 92 [Online] http://conventions.coe.int?Treaty/EN/Reports/Html/196.htm Back
102
Ceylan v. Turkey 1999, para 2. Back
103
ICCPR, article 19(3). Back
104
UN Human Rights Committee, General Comment 10-Freedom of expression
(Art 19), 29 June 1983. Back
105
Sunday Times v UK (No 2) 1992 14 EHRR 123. Back
106
R v El-Faisal [2004]EWCA Crim 456 Back
107
Stewart Tendler, "Abu Hamza accused of inciting hate and
murder," The Times (London), October 20, 2004;online], http:/Iwww.timesonline.co.uk/article/O,,2-1319188,00.html Back
108
Report (2003-04) HC 100) Back
109
Review of Counter-terrorism Powers, 18th Report of Session 2003-04. Back
110
Opinion of the Commissioner for Human, Rights, Alvaro Gil-Robles,
on the draft Convention on the Prevention of Terrorism, Strasbourg,
2 February 2005, BCommDH(2005)1, para 28. Back
111
See, for example, Lingens v Austria, 8 July 1986, HUDOC Ref.000000108. Back
112
Terrorism Act 2000, section I. Back
113
It is notable that protestors at the recent Labour Party conference
were detained under the Terrorism Act 2000. Back
114
See also paras 80 and 99 of the Explanatory Report confirming
the need for "intention". Back
115
See cl.16(3) of the Bill. Back
116
BBC News interview, 17 July 2005. Back
117
This analysis was being finalized at the time of the Home Office
announcement on 6 October that the offence of "glorification"
is now to be incorporated into clause 1 as a form of "indirect
encouragement." This change does not, in our view, overcome
the objections detailed in this section of the briefing. It has
still not been shown why it is necessary to introduce an "apologie
du terrorisme" offence in UK law and, contrary to some
media statements, "intention" is still not required
for an offence to be committed. The absence of an intent requirement
means that the offence remains incompatible with the requirements
of the Council on Europe Convention on the Prevention of Terrorism. Back
118
"Apologie du terrorisme" and "incitement
to terrorism"-Situation in member and observer states to
the Council of Europe. Back
119
Council of Europe Convention on the Prevention of Terrorism,
Explanatory Report, Article 5, paragraph 98. Back
120
Muslum Gunduz v Turkey (No.1) (2003). Back
121
EKIN Association v France (2001); Okcuoglu v. Turkey (1999). Back
122
See, The Terrorism Act 2000 (Proscribed Organisations) (Amendment)
Orders 2001 (SI 2001/1261) and 2002 (SIU 2002,2724). Back
123
Report of the Metropolitan Police Authority, "Scrutiny
on MPS Stop and Search Practice", May 2004. Back
124
Criminal Justice Act 2003. Back
125
Statistics on arrests under the Terrorism Act 2000, Home Office
[unpublished]. Back
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