Appendix 3: Memorandum from Liberty
1. The Joint Committee on Human Rights has decided
to report on the Council of Europe Convention on the Prevention
of Terrorism, signed by the UK on 16th May 2005 (the "Convention").
The purpose of the Convention is to enhance the efforts of states
in preventing terrorism and its detrimental effects on human rights,
especially the right to life. It obliges states to establish certain
criminal offences, including public provocation to commit a terrorist
offence, and to ensure that while doing so they respect human
rights obligations, in particular the rights to freedom of expression,
association, and religion.
2. In particular, the Committee asked the following
Whether the new criminal offences in
Part 1 of the Terrorism Act 2006 ("TA 2006") (encouragement
of terrorism and dissemination of terrorist publications) have
inhibited legitimate freedom of expression, association and religion,
and if so, how?
Whether the new grounds on which organizations
can be proscribed in s. 21 TA 2006 have inhibited legitimate
freedom of association?
Whether the UK complies with the duty
to investigate and either extradite or prosecute terrorist suspects?
Whether the measures adopted by the
UK to protect and support the victims of terrorism are adequate?
3. Security and freedom are not diametrically
opposed or mutually exclusive values. The most effective way of
countering the threat from terrorism will involve laws and processes
which respect the values and rights that terrorism seeks to undermine.
The international human rights framework, left to the world by
the generation which survived the Holocaust and the Blitz, respects
questions of public safety. There is no need for this framework
to be undermined in the name of a "war against terror".
This was well-appreciated by the Council of Europe when it passed
the Convention. The preamble to the Convention recalls, for example
"the need to strengthen the fight against terrorism and reaffirming
that all measures taken to prevent or suppress terrorist offences
have to respect the rule of law and democratic values, human rights
and fundamental freedoms".
4. The Government used the Convention as a justification
for a number of the provisions of TA 2006. It argued, for example,
that new offences were needed to enable it to ratify the treaty.
Some of these offences Liberty supported, including the offence
of training for terrorism which is contained in Article 7 of the
Convention and section 6 TA 2006.
5. The Convention was, however, used as a justification
for other offences and powers which Liberty opposed as TA 2006
was passing through Parliament. These included the offences of
encouraging terrorism (commonly known as "glorification of
terrorism") and dissemination of terrorist publications as
well as widening the powers to proscribe organisations. We believe
that the breadth of these offences and the new grounds for proscription
went far beyond what the Convention required. As a result of this
these offences and powers have had a disproportionate impact on
our rights and freedoms. It is too early to make a definite assessment
of the practical effect of these provisions. Furthermore, it is
logically very difficult to assess what views people have decided
not to express and what organisations people have decided not
to join or support as a result of the provisions of TA 2006.
6. There are a number of other key concepts in
the Convention which the Government has, sadly, been less keen
to pursue. These include the obligation to investigate and to
prosecute those suspected of involvement in terrorism and the
provision of protection and support for the victims of terrorist
attacks. In particular we are concerned about the failure to provide
financial support to victims of terrorism abroad.
7. In the explanatory notes to TA 2006,
and during Parliamentary debates on the Bill, the Government drew
a clear connection between several of its provisions and the Convention.
The Explanatory Notes state, for example:
"Section 1 creates an offence of encouragement
of acts of terrorism or Convention offences. The offence has been
introduced to implement the requirements of Article 5 of the Council
of Europe Convention on the Prevention of Terrorism ("the
Convention"). This requires State parties to have an offence
of 'public provocation to commit a terrorist offence'. This new
offence supplements the existing common law offence of incitement
to commit an offence."
The following comments focus on the offence of encouragement.
Similar issues apply in relation to section 2 and the proscription
powers in section 21.
8. The offence in section 1 of TA 2006 goes
further than Article 5 of the Convention in one significant respect.
Article 5 of the Convention provides:
"1 For the purposes of this Convention, "public
provocation to commit a terrorist offence" means the distribution,
or otherwise making available, of a message to the public, with
the intent to incite the commission of a terrorist offence, where
such conduct, whether or not directly advocating terrorist offences,
causes a danger that one or more such offences may be committed.
2 Each Party shall adopt such measures as may be
necessary to establish public provocation to commit a terrorist
offence, as defined in paragraph 1, when committed unlawfully
and intentionally, as a criminal offence under its domestic law."
Unlike Article 5, section 1 does not require the
person making any statement or publishing any document to thereby
intend to incite the commission of a terrorist offence. The domestic
offence of encouragement, for example, will also be committed
if a person makes a statement or publishes a document and is reckless
as to whether it is understood, as a direct or indirect encouragement
The extension of this offence to recklessness
is a major reason for the disproportionate impact on freedom of
9. The Government pointed out that the concept
of recklessness is common in criminal law. This is true. There
are, however, two key reasons why recklessness is an inappropriate
standard for criminalisation when applied to a speech offence:
Firstly, recklessness is normally applied to actions
that are themselves within the realm of criminality. A simple
test is to look at 'recklessness' in the index of the leading
Criminal Law textbook Archbold.
The subheadings are 'battery, 'common assault' criminal damage',
drinks and drugs',
'fraudulent evasion' and 'obtaining property by deception'. There
is no reference to speech offences. The rationale for this is
that if you hit someone or deceive them then it is absolutely
appropriate for a jury to be able to convict you of an offence
even if you did not intend the consequences of your actions. The
same nexus between action and consequence should not exist for
speech offences. Speech does not naturally reside in the realm
of criminality. This is why the element of intention should always
be attached to speech offences. It is the means by which proper
criminal responsibility can be determined.
Secondly, conviction for existing offences involving
an element of recklessness is totally dependant upon the actions
of the person charged. If I have hit someone or deceived them
all the consequences derive from my action. If someone hits their
head after I have struck them, suffering severe injury, then it
is appropriate to convict if I was aware of a risk of that happening
or aware of a risk so that it would be unreasonable to take it.
The difficulty in applying this principle to the section 1 offence
is that criminality flows from another's interpretation of my
actions. If someone were actually to plan a terrorist attack as
a consequence of what I say then, as all acts of terrorism must
be unreasonable, it must have been unreasonable for me to take
the risk. When dealing with the interpretation by a third party
it is difficult to see any practical distinction between what
is negligent and what is reckless.
There is little to distinguish what might be careless
speech and what might be reckless speech. As a consequence any
distinction could well be based on the circumstances and manner
in which comments are made rather than the content. Indeed, this
is a specific requirement for consideration under section 1(5).
Those who feel most deeply about issues such as the Palestinian
conflict and who are likely to express their views most passionately
are likely to be young Muslims. It is easy to see how a person's
passion might become interpreted as recklessness.
10. The lack of any need for intent coupled with
the broad definition of "terrorism" means that the sense
of certainty essential to a fair and credible criminal justice
system are missing. Section 1 of the Terrorism Act 2000 defines
"terrorism" as (among other things) an action
that involves serious violence against a person, serious damage
to property or which endangers a person's life, and which is intended
to influence the government or intimidate the public for the purpose
of advancing a political, religious or ideological cause. It even
appeared that the Minister responsible for the Bill did not appreciate
the scope of the offences it contains.
It is possible that the restriction on freedom of expression in
section 1 TA 2006 is not sufficiently clear and accessible
to be considered "prescribed by law" as required by
Article 10(2) of the European Convention on Human Rights.
11. Given the breadth and uncertainty of the
offences in sections 1 and 2 TA 2006, we consider there to
be a significant risk that they would, in fact, violate Article
12 of the Convention which provides:
"Each Party shall ensure that the establishment,
implementation and application of the criminalisation under
this Convention are carried out while respecting human rights
obligations, in particular the right to freedom of expression,
freedom of association and freedom of religion, as set forth in,
where applicable to that Party, the Convention for the Protection
of Human Rights and Fundamental Freedoms, the International Covenant
on Civil and Political Rights, and other obligations under international
12. Liberty is concerned about the possible "chilling
effect" of the offence. We fear that people will be afraid
of the new offence of encouragement of terrorism and, knowing
generally that it criminalises speech even if they do not intend
to encourage any act of terrorism, will feel that it is simply
safer to keep quiet. The Committee specifically asks whether the
new offences in sections 1 and 2 of the Terrorism Act 2006 have
deterred legitimate freedom of expression in practice. Given that
the offence only came into force in April of this year and that
no one has yet been charged with the offence, it is probably too
early to make any such meaningful assessment. There is another
major difficulty with assessing whether the existence of the offence
has inhibited free expression. Logically there can be no record
of articles that have not been published or speeches that have
not been made. It is, therefore, impossible to know what opinions
a person has decided not to express.
13. Section 21 TA 2006 allows for the extension
of the grounds for proscription under the Terrorism Act 2000.
It now covers non-violent organizations which 'glorify' terrorism.
The Government clearly intended that this extension would allow
groups such as Hizb-ut-Tahir to be proscribed. The Prime Minister
stated his intention to do this in August 2005. There is a vast
difference between proscribing groups involved in violence and
terror and non-violent political groups. It allows for state censorship
of political views. Liberty has a number of concerns regarding
the proscription of non-violent organisations, including:
The disproportionate impact on the right to freedom
of association and expression protected by Articles 10 and 11
of the European Convention on Human Rights and the Human Rights
Banning non-violent political organisations is extremely
counterproductive. Whatever we may think of organisations that
praise terrorists, banning and criminalising them will create
martyrs and drive debate underground.
Criminalising expressions of belief does not make
us safer from terrorism. Instead it risks adding weight to the
arguments of those who maintain the UK applies double standards
in its treatment of Muslims.
14. The Committee has asked whether the new grounds
on which organisations can be proscribed have inhibited legitimate
freedom of expression. An order proscribing additional organisations
has been made since section 21 came into force
but we suspect that the organisations it has proscribed (Al-Ghurabaa,
The Saved Sect, Baluchistan Liberation Army and Teyrebaz Azadiye
Kurdistan) could have been banned under the original proscription
powers in the Terrorism Act 2000.
We are pleased that no order proscribing non-violent groups has
been made. Any such order would, we believe, be likely to have
an unjustified and disproportionate impact on freedom of association
and be likely to be in breach of Article 11. Such an order would,
accordingly, be likely to be unlawful pursuant to section 6 of
the Human Rights Act 1998.
UK COMPLIANCE WITH
15. It is clear from the scheme of the Convention
that the state parties to it had envisaged that the most appropriate
way of dealing with those engaged in terrorist activities would
be through the application of the criminal law. Article 18 provides,
for example, that:
"The Party in the territory of which the alleged
offender is present shall
if it does not extradite that
person, be obliged, without exception whatsoever and whether or
not the offence was committed in its territory, to submit the
case without undue delay to its competent authorities for the
purpose of prosecution, through proceedings in accordance with
the laws of that Party. Those authorities shall take their decision
in the same manner as in the case of any other offence of a serious
nature under the law of that Party."
16. Liberty agrees that those suspected of involvement
in terrorism should be prosecuted and sentenced. We support the
JCHR's conclusion that:
"States are now under an emerging human rights
law duty to prosecute those whom it suspects of being involved
in terrorist activity in order to prevent future loss of life
in future attacks. This makes it all the more important that the
Government now urgently addresses the obstacles to prosecuting
for terrorism offences with a view to resorting more frequently
to the criminal law in the effort to counter terrorism."
Liberty believes prosecution to be the most effective
way of tackling terrorism and considers that intelligence should
be turned into evidence so that more prosecutions can take place.
In particular, we consider that the bar on intercept evidence
should be lifted.
17. Liberty has serious concerns about the fact
that some of those who the Government suspects of involvement
in terrorism are not being prosecuted but are instead being subjected
to control orders. The control order regime created by the Prevention
of Terrorism Act 2005 enables Ministers to impose restrictions
on individual freedom (including tagging and curfews) where there
is no view to a criminal prosecution. Although control orders
impose restrictions which are, in effect, punitive, they are not
made following a fair trial. This scheme undermines the central
pillars of the British legal system: protection against unlawful
detention, the right to a fair trial and the presumption of innocence.
It also undermines the scheme of the Convention. We consider that
the prosecution and sentencing of terrorists would better protect
members of the public than control orders, which could be counter-productive
and, in terms of the protection they offer, fall far short of
18. Article 13 of the Convention requires states
to "adopt such measures as may be necessary to protect and
support the victims of terrorism that has been committed within
its own territory". This is an important legal obligation,
recognising the moral duty of states to support those who have
suffered grave violations of their human rights at the hands of
terrorists. It is significant that Article 13 of the Convention
would not require the British Government to provide support only
to British citizens injured in terrorist attacks in the UK, but
also to foreign citizens who suffer in attacks in the UK. This
means that, had the Convention been ratified by the UK, the UK
would be under a legal obligation to foreign citizens injured
in the July 7th attacks. We greatly welcome the fact that the
Criminal Injuries Compensation Authority ("CICA") already
compensates victims of terrorist attacks in the UK regardless
of their nationality or residence.
19. Sadly, support for British victims of terrorism
outside of the United Kingdom is not as generous. There is no
scheme for the provision of support to British victims of terrorism
overseas - this falls outside of CICA's remit. This is of particular
concern given that most British travel insurers choose to rely
on the Terrorism Exemption Clause, which means they are not required
to pay out for costs incurred in the wake of a terrorist attack.
20. Article 13 of the Convention requires other
state parties to the Convention to provide support to British
citizens who suffer as a result of terrorist attacks in their
jurisdiction. For example, had Turkey ratified the Convention,
Article 13 would have required it to provide support to those
British citizens who were injured in terrorism attacks in Marmaris
and Antalya on 28th August 2006.
In practice, we understand that British victims in those attacks
have had some difficulties in accessing the financial support
which is already available, in theory at least, from the Turkish
state. Such problems include language barriers, very short limitation
and high legal costs in making applications with difficulties
in getting insurers to cover these costs, at any rate before the
claims become time-barred. Furthermore, as the claims have not
yet been processed and the compensation scheme is far from transparent,
the amount of likely compensation is still unknown (it is certainly
very limited in respect of loss of earnings). We are concerned
that differing costs of living and of obtaining support in states
which are parties to the Convention could mean that the awards
paid in one country to those living in another may be insufficient,
out of step with what a British victim would receive from CICA
had they suffered as a result of a terror attack in the UK. For
these reasons we believe that the UK should provide a safety-net
for those who, while theoretically entitled to support from other
state parties to the Convention, do not receive sufficient compensation
or are unable in practice to obtain it.
21. This would still, however, leave an obvious
gap in protection and support: British victims of terrorist attacks
in countries which are not state parties to the Convention. The
Convention would provide no protection for those who died or were
injured in bombings outside the Council of Europe (i.e. Bali (2002),
Sharm el Sheikh (2005), Bali (2005), Qatar (2005) or Dahab (2006)
or Jordan (2006). British victims in these attacks were not covered
by CICA and the vast majority would not have been covered by travel
insurance due to the terrorism exemption provisions. The Government's
arguments against extending CICA to cover this group do not stand
up to scrutiny:
"Terrorism" is difficult to define and
therefore poses problems in assessing eligibility - Liberty also
has difficulties with the definition of "terrorism".
However, if its meaning is clear enough to use as the basis for
criminal responsibility and to confer significant coercive powers
on the state, it must also be clear enough to provide a basis
for ascertaining entitlement to financial support.
Any scheme for British victims of terrorism abroad
would be open to fraud: However, according
to Howard Webber, the Chief Executive of the CICA, fraudulent
applications are a small sub-category of those that are disallowed.
In addition, we have criminal procedures in place to deal with
those who attempt to defraud the CICA.
Cost: According to the CICA website, the scheme receives
about 65,000 domestic applications and pays out £200 million
in compensation per year. Relative to this, the number of potential
applications from victims of terrorism abroad is small.
If, however, the Government is not convinced that the financial
implications of expanding the scheme will be small, they can reassess
the role of insurance companies in these cases - i.e. requiring
insurers not to include a terrorism exemption.
As a matter of urgency, this serious lacuna should
be addressed, not as a matter of legal compliance with the Convention
but in the performance of the state's moral obligation to its
citizens that suffer in such attacks.
50 Indirect encouragement is defined as a statement
glorifying the commission of acts of terrorism which members of
the public could be reasonably expected to infer as behaviour
that should be emulated. For both direct and indirect encouragement
it is irrelevant whether the statement is understood as encouragement
to commit any particular act of terrorism. It is also irrelevant
whether anyone was in fact encouraged. Back
Page 2969 in the 2005 edition Back
The reference to drink and drugs relates to the effect of intoxication
on recklessness rather than any specific offence. Back
Which can be outside the UK Back
When giving evidence to the Home Affairs Select Committee on 11th
October the Home Secretary was asked that given the breadth of
the definition of 'terrorism' which is used in the offence would
criminalise calls to overthrown oppressive regimes. Examples given
were North Korea, Zimbabwe and the Ceausescu regime in Romania.
The Home Secretary's response was that this would not be criminal,
commenting, "In fact, I think the Romanian change illustrates
my point extremely clearly. What actually happened at the process
of change in Romania was precisely as you said, millions of people
coming on to the streets and it leading, as a result, to a change
in loyalty for the army and so on." We believe the Home
Secretary was mistaken. We do not see how the overthrow of Ceausescu
could fail to satisfy this definition. Anyone who 'encouraged'
the Romanian revolution in 1989 would be committing the offence. Back
The Terrorism Act 2000 (Proscribed Organisations) (Amendment)
Order 2006 No. 2016 Back
i.e. without recourse to section 21 TA 2006 Back
Twenty-fourth Report of Session 2005-06, Counter-Terrorism
Policy and Human Rights: Prosecution and Pre-Charge Detention,
HL 240/HC 1576, Summary. Back
There were a series of explosions in the Aegean coastal resort
of Marmaris and the Mediterranean resort of Antalya resulted in
a number of casualties. In Marmaris, 21 people were injured, including
10 British nationals. In Antalya three people were killed and
at least 30 injured; foreign nationals were amongst the wounded. Back
Only 60 days, although periods in hospital are not included. Back
Criminal Justice System, "Rebuilding Lives: Supporting Victims
of Crime", December 2005, p.21 Back
See our submission to Lord Carlile's review: http://www.liberty-human-rights.org.uk/pdfs/policy06/terrorism-definition-response.PDF
We would point out that, in addition to the definition of "terrorism"
in Section 1of the Terrorism Act 2000, there is a definition in
Section 2(2) of the Reinsurance (Acts of Terrorism) Act 1993.
It defines "acts of terrorism" as 'acts of persons acting
on behalf of, or in connection with, any organisation which carries
out activities directed towards the overthrowing or influencing,
by force or violence, of Her Majesty's government in the United
Kingdom or any other government de jure or de facto'. Back
Since 2002 we estimate that 43 British holiday-makers have been
killed by terrorist attacks abroad. Back