Joint Committee On Human Rights First Report



Appendix 3: Memorandum from Liberty

INTRODUCTION

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 four questions:

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?

OVERVIEW

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.

NEW OFFENCES

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." [emphasis added]

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 to terrorism.[50] The extension of this offence to recklessness is a major reason for the disproportionate impact on freedom of expression.

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.[51] The subheadings are 'battery, 'common assault' criminal damage', drinks and drugs',[52] '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[53] 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.[54] 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 law."

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.

PROSCRIPTION POWERS

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 Act 1998.

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[55] 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.[56] 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 THE DUTY TO INVESTIGATE AND PROSECUTE TERRORIST SUSPECTS

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."[57]

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 criminal sanctions.

VICTIMS OF TERRORISM

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.[58] 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 periods,[59] 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:[60]

"Terrorism" is difficult to define and therefore poses problems in assessing eligibility - Liberty also has difficulties with the definition of "terrorism".[61] 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.[62]

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.[63] 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

51   Page 2969 in the 2005 edition Back

52   The reference to drink and drugs relates to the effect of intoxication on recklessness rather than any specific offence. Back

53   Which can be outside the UK Back

54   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

55   The Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2006 No. 2016 Back

56   i.e. without recourse to section 21 TA 2006 Back

57   Twenty-fourth Report of Session 2005-06, Counter-Terrorism Policy and Human Rights: Prosecution and Pre-Charge Detention, HL 240/HC 1576, Summary. Back

58   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

59   Only 60 days, although periods in hospital are not included. Back

60   Criminal Justice System, "Rebuilding Lives: Supporting Victims of Crime", December 2005, p.21 Back

61   See our submission to Lord Carlile's review: http://www.liberty-human-rights.org.uk/pdfs/policy06/terrorism-definition-response.PDF  Back

62   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

63   Since 2002 we estimate that 43 British holiday-makers have been killed by terrorist attacks abroad.  Back


 
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