Joint Committee On Human Rights

Joint Committee On Human Rights Written Evidence

17. Submission from the Law Society on the Draft Terrorism Bill

INTRODUCTION

On 20 July the Home Secretary Charles Clarke set out the details of proposed anti-terrorism legislation, brought forward in the light of the 7 July bomb attacks in London.

He announced that three new offences would be created, those of acts preparatory to terrorism; indirect incitement to terrorism; and the giving and receiving of terrorist training. Indirect incitement would target those who "glorify and condone terrorist acts" with the intention of inciting terrorism.

In relation to powers to exclude extremists who sought to enter the UK, the Home Secretary noted that he already had certain powers, but stated that these needed to be applied more widely and systematically. He noted the need to "tread very carefully indeed in areas that relate to free speech". He said the Government was seeking to sign memoranda of understanding with countries to ensure that deportation was consistent with the European Convention of Human Rights, and revealed that such a memorandum had been signed with Jordan.

On 15 September, the Home Secretary published a new Terrorism Bill with a letter to David Davis MP and Mark Oaten MP explaining the Government's thinking behind the proposed new offences.

SUMMARY

The Society entirely agrees that it is vital that we have effective measures to combat terrorism and we fully recognise that it is the Government's responsibility to protect its citizens. However, we continue to believe that protection against terrorism can be achieved without serious intrusion on human rights standards.

We welcome the fact that the Government has listened to concerns about the drafting of the Bill and has removed clause 2. Whilst we are not opposed to the offence of encouragement to terrorism in principle, we remain very concerned about the impact of the provision, particularly as the drafting of the new clause is unclear and difficult to understand.

We are not opposed in principle to new offences relating to the dissemination of terrorist publications (clause 3) or acts preparatory to terrorism (clause 4). However, the proposed offences in the Bill cause us serious concern due to the broad nature of the drafting, particularly the lack of intention in clause 3. We are concerned that the drafting of these clauses is so uncertain that it may potentially breach Article 10 ECHR and if the court finds this to be the case, it will either need to strike down the provisions or interpret them extremely narrowly.

We oppose the extension of detention powers from 14 days to 3 months as being unnecessarily draconian. There are far more appropriate and proportionate ways of dealing with problems relating to pressure of time. A period of 3 months detention prior to charge is likely to be incompatible with Article 5(3) ECHR.

CLAUSE 1—ENCOURAGEMENT OF TERRORISM

We understand the Government's motivation to ensure that there are offences to cover this type of behaviour and welcome the fact that the Home Secretary has explicitly recognised that freedom of speech should not be inappropriately curtailed in relation to this offence[194]. We also welcome the fact that the Government has listened to concerns about the drafting of the Bill and has removed clause 2. However, the drafting of the new clause 1 is unclear and difficult to understand, which gives serious cause for concern.

We note that the Home Office's press release states that the amendments make it clear that for an offence of glorifying terrorism to be committed, the offender must have also "intended to incite further acts of terror"[195]. However, the requirement in clause 1 remains that the accused knew or believed or had "reasonable grounds for believing" that other members of the public were likely to understand it as a direct or indirect encouragement to commit terrorist acts (which itself is widely defined, using the Terrorism Act 2000 definition). This does not equate to intent, but instead appears to be utilising a negligence test and in so doing, is creating a negligent incitement offence. We would welcome clarification from the Home Office as to how the drafting of the new clause has introduced an intention element into the offence.

The law must be accessible, such that those affected by it can find out what the law prohibits, and must be formulated with sufficient clarity that those affected can understand it and regulate their conduct to avoid breaking the law[196]. In view of the potential for confusion surrounding the drafting in clause 1, we are concerned that it may not comply with these principles.

We remain concerned that the clause may inhibit freedom of speech. Statements which might be considered unwise, but are not intended to encourage terrorism should not be criminal. The clause as drafted runs the risk of criminalising conduct that ought not to be criminalised because of lack of intent. We are concerned that the drafting of the clause is so uncertain that it may potentially breach Article 10 ECHR which protects freedom of expression. Although a court would accept that restrictions on free expression pursue a legitimate aim of safeguarding national security, public safety and the prevention of crime, it appears to be likely that this clause will be found to fail to strike a fair balance between national security considerations and the fundamental right of free expression. If the court finds this to be the case, it will either need to strike down the provision or interpret it extremely narrowly.

CLAUSE 2—GLORIFICATION OF TERRORISM

This clause has now been removed (see above).

CLAUSE 3—DISSEMINATION OF TERRORIST PUBLICATIONS

This offence covers a publication containing material that constitutes a direct or indirect encouragement or inducement to commission acts of terrorism, or information of assistance to acts of terrorism. It will constitute a direct or indirect encouragement or inducement if it is likely to be understood as such by some or all of the persons who it is or is likely to be available to. This includes any information that is capable of being useful in the commission or preparation of such acts, and so could conceivably include maps or train timetables.

Whilst we understand the motivation behind the creation of such an offence, we are concerned at its breadth. It contains no element of intent that the dissemination should encourage terrorism, only that it will constitute an encouragement or inducement if it is likely to be understood to do so by its recipients. Neither does it contain the defence of reasonable excuse or lack of terrorist purpose, as there is in the existing and similar offences under sections 57 and 58 of the Terrorist Act 2000. Due to the broad nature of the drafting, this clause raises similar concerns in relation to Article 10 ECHR as does clause 1.

We also have practical concerns that the offence may be difficult to prosecute as it would require proof beyond reasonable doubt that a potential and perhaps hypothetical terrorist is likely to interpret the publication in a particular way.

CLAUSE 4—PREPARATION OF TERRORIST ACTS

This clause makes it an offence, with the intention of committing acts of terrorism or assisting others, to engage in any conduct in preparation for giving effect to this intention. Whilst we are not opposed in principle to this offence, we are not clear that there is a gap in the law necessitating its creation[197].

The Newton Committee said that that they had not been told that it has been impossible to prosecute a terrorist because of a lack of available offences and found that the difficulty in prosecuting terrorism offences related to evidential rather than legal problems[198]. The Joint Committee on Human Rights has considered whether new terrorism offences are necessary. It concluded that the evidential problem, highlighted by the Newton Committee, "is unlikely to be helped by the creation of still more offences"[199].

The Newton Committee also noted a reluctance to adduce sensitive intelligence- based material in open court due to concern about compromising their source or methods[200]. The Society has repeatedly called for intercept evidence to be admissible as we believe that this would help with the prosecution of alleged terrorists. Evidential tools, similar to public interest immunity certificates, could be used to deal with what evidence is actually revealed to a jury and protect sources. The majority of common law jurisdictions, including Canada, Australia, S Africa, New Zealand and the United States admit intercept evidence[201]. In the light of the use of such evidence by other common law jurisdictions, the use of foreign intercept evidence in UK courts[202] and greater EU co-operation, the introduction of intercept evidence is the logical next step. Indeed, the Society agrees with the Joint Committee on Human Rights that the case for relaxing the absolute ban on the use of intercept evidence is overwhelming[203].

The offence is drafted very broadly as it covers "any conduct in preparation for giving effect to terrorism". As with the drafting of clauses 1 and 3, we are also concerned that the broad nature of the drafting may be incompatible with Article 10 of the ECHR.

CLAUSE 17—GROUNDS FOR PROSCRIPTION

This clause allows the Secretary of State to proscribe as "involved in terrorism" any group whose activities "include the glorification, exaltation or celebration" of acts of terrorism or "are carried out in a manner which ensures that the organisation is associated" with such statements. We are concerned that the vague nature and lack of clarity of these grounds may infringe the right to freedom of association under Article 11 ECHR.

CLAUSE 19—EXTENSION OF PERIOD OF DETENTION BY JUDICIAL AUTHORITY

We do not think that the case is made out for such an extension. 14 days is a serious length of time without charge. Powers to detain are already longer in terrorism cases. The 14 day limit applicable to terrorist offences was enacted by the Criminal Justice Act 2003 which amended schedule 8 of the Terrorism Act 2000. It came into effect on 20 April 2004 and involves an application to a senior District Judge. There is an initial period of 48 hours, then an application under paragraph 29 (7 days) or paragraph 36 of schedule 8 must be made. In relation to other offences, under PACE the limit for pre-charge detention is 24 hours, extendable to 36 hours by an officer of superintendent rank or above, detention in respect of an arrestable offence[204]. A magistrate can then extend the period to 72 hours, followed by a further extension to 96 hours at most. This proposal will therefore allow suspects to be detained more than 20 times longer than the maximum period that a suspect can be detained for any serious non-terrorist offence, for example murder, rape or serious fraud.

It appears to a large extent that the call for an extension of detention powers relates to the question of resources. Speed is of the essence in these cases where there may be evidence that could lead to prosecution for such serious offences, and the preferable option is surely therefore to ensure that investigations can be carried out as quickly as possible, in case they yield further useful information. We therefore believe that the more appropriate and proportionate way to deal with these concerns would be to ensure that the police and security services are properly resourced, rather than to extend the period of detention before charge.

Furthermore, under PACE[205], the police are required to have some reasonable grounds to arrest, and so there must be evidence to ground that suspicion. We have seen no clear explanation as to why it is not sufficient to charge a suspect with a lesser offence to ensure that they do not have to be immediately released from custody whilst other matters are still being investigated. Charges can always be upgraded at a later stage and suspects questioned in relation to those further charges. Even if suspects are granted bail, courts have the power to impose strict conditions.

Three months detention prior to charge is a length of time tantamount to internment. The government has stated that any extension would be used in extremely rare circumstances and would only apply to a tiny number of people[206]. In view of the serious nature of an extension and the few cases in which it should be necessary, should any extension beyond 14 days be made possible, it should be granted and reviewed at very short intervals by a High Court, rather than a District, Judge.

The legality of detention prior to charge is governed by Article 5(3) ECHR, which provides that those arrested or detained must be brought before a judge within a reasonable time and tried or bailed. We think it very unlikely that extension of the detention period prior to charge to three months will be compatible with Article 5(3) ECHR.

October 2005