Legislative Scrutiny: Counter-Terrorism and Border Security Bill Contents

2Amendment of terrorism offences

Extension of existing terrorism offences

7.The Government has stated that the provisions in the Bill are “digital fixes” to the existing terrorism offences.8 Max Hill QC, the Independent Reviewer of Terrorism Legislation, welcomes the fact that the Bill does not introduce any new offences on the basis that we already have sufficient laws in place to deal with terrorist-related activity.9 However, in evidence before the Committee, he clarified that the Bill is “not all simply ‘digital fixes’ [ … ] There are some amendments to existing offences that I am constrained to describe as extensions to those offences.”10 We describe these more fully below. In Max Hill’s view, some elements of the Bill are “good, pragmatic solutions here for the modern world”, but some aspects of the extensions of existing offences raise serious concerns.11 Liberty is also concerned by the proposed amendments to existing offences. Corey Stoughton, Advocacy Director at Liberty, suggested that much of the activity criminalised by the Bill is “not terrorism per se; it is protected activity–protected free expression.”12

8.We endorse the closing of loopholes in legislation to ensure that law remains up to date with technological developments. We also share the views of Max Hill QC, in giving credit to the Government for avoiding a ‘knee-jerk’ reaction following the successive terrorist attacks in 2017.13 However, we are concerned that some of the extensions of existing offences could take the criminal law in a dangerous direction for human rights, risking a ‘chilling effect’, not only on journalistic and academic freedoms, but also the inquisitive and the foolish mind. We are particularly concerned with clauses 1–3 as set out below.

Clause 1: Expressions of support for a proscribed organisation

9.Organisations are proscribed by Parliament as terrorist organisations if they are “concerned in terrorism”.14 Section 12(1) of the Terrorism Act 2000 criminalises a person who “invites” others to support a proscribed organisation. We note the decision of the Court of Appeal in Choudary and Rahman, which held that the current offence “does not prohibit the holding of opinions or beliefs supportive of a proscribed organisation; or the expression of those opinions or beliefs”.15 A defendant need not be providing support for a proscribed organisation, rather, the criminality lies in inviting support and the invitation must be made knowingly.16

10.Clause 1 of the Bill amends section 12 of the 2000 Act to create an offence of expressing an opinion or belief that is supportive of a proscribed organisation, where the person expressing the opinion or belief is reckless as to whether a person to whom the expression is directed will be encouraged to support a proscribed organisation.

11.The Government says that “there is a clear public interest in stymieing support for terrorist organisations since the more support they have, the stronger their capacity to engage in terrorism [ … ] The objective of this new offence–to restrict the degree to which proscribed terrorist groups garner more support–is sufficiently important to justify the limitation of the fundamental rights under Articles 8, 9 and 10.”17

12.Clause 1 removes the requirement for an invitation to support and replaces it with expressions of support. It is not clear to us what constitutes an “expression of support”. In the case of Choudary and Rahman, the Court of Appeal gave the concept of support its “normal and ordinary meaning”, finding that invitations to support proscribed organisations did not need to be practical or tangible but could include “encouragement, emotional help, mental comfort and the act of writing or speaking in favour of something”.18 It is arguable that clause 1 could include, for example, an academic debate during which participants speak in favour of the de-proscription of currently proscribed organisations. If this is so, clause 1 could have a chilling effect by preventing expressions of disagreement with the Government’s decision to proscribe certain organisations.

13.In evidence, Reporters Without Borders fear “restrictions on press freedom to express legitimate concerns, for example, around a new proscription or a proscribed group. Such discussion around criminalisation, proscription, and state power is undoubtedly in the public interest, but this new offence will have a clear and disproportionate chilling effect on press freedom to engage in such debate.”19

14.Liberty says that clause 1 “pushes the law even further away from actual terrorism, well into the realm of pure speech and opinion.”20 Corey Stoughton warned: “You can merely be playing in a dangerous area and expressing an idea, and if the idea is interpreted as support for Hezbollah, or for a Kurdish group that may be engaged in terrorist activity [ … ] you suddenly run afoul of the criminal law.”21

15.In evidence, Max Hill QC stated that moving away from an invitation of support to an expression of support is problematic, as the Government is “drawing back the line” without the necessary safeguards.22 An invitation of support requires consideration of the recipient(s) of the message and how this message is received. Clause 1 removes this safeguard. Max Hill QC noted that there is already an existing offence of ‘encouragement of terrorism’, set out in section 1 of the 2006 Act, which begs the question as to why this extension is necessary.23

16.In addition, clause 1 removes the requirement of intention and replaces it with recklessness, lowering the threshold for the mental element of the offence. There is, therefore, no requirement upon the individual to deliberately or knowingly encourage others to support a proscribed organisation. The Home Office’s ECHR Memorandum cites the interpretation given by the Court in R v G and another and explains that this means that a person would only fall foul of this provision where that person had “some subjective foresight that his conduct will result in the proscribed outcome and nonetheless engages in the conduct in circumstances where a reasonable person would not.”24 The Committee has previously considered that the mens rea of recklessness when applied to acts of speech alone is dangerous; this is exacerbated by the lack of clarity as to what type of speech constitutes an expression of support.25

17.Clause 1 interferes with the right to freedom of expression, guaranteed by Article 10 of the European Convention. Article 10 encompasses the freedom to hold ideas and the right to receive opinions and information, as well as the right to express them.26  It is applicable not only to information or ideas that are inoffensive, but also to those that offend, shock or disturb the State or any sector of the population.27 Article 10 is a qualified right and can only be interfered with in pursuit of a legitimate aim, such as national security, if the interference is prescribed by law, necessary and proportionate.28  As currently drafted, there is inherent ambiguity as to what would be caught by this offence, thus questioning whether the interference can be said to be “prescribed by law”. Moreover, there is a very clear risk that it would catch speech that is neither necessary nor proportionate to criminalise (such as valid debates about proscription and de-proscription of organisations). For these reasons, we consider that this clause violates Article 10 of the ECHR.

18.There is a careful balance to be struck here to ensure that valid freedom of expression is not unintentionally caught by new offences. In that regard it is important to recall that even speech that offends, shocks or disturbs, is still protected. The clause as currently drafted potentially catches a vast spectrum of conduct. An offence must be clearly defined in law and formulated with sufficient precision to enable a citizen to foresee the consequences which a given course of conduct may entail. It is unclear as to what type of expression would or would not be caught by this offence, thus falling foul of the requirements of natural justice requiring clarity in the law and also throwing into question whether this interference with freedom of expression can be said to be “prescribed by law” with sufficient clarity. Moreover, there is a very clear risk that this provision would catch speech that is neither necessary nor proportionate to criminalise - such as valid debates about proscription and de-proscription of organisations. For these reasons, we consider that this clause violates Article 10 of the ECHR. We therefore recommend that clause 1, at a minimum, is amended to clarify what expressions of support would or would not be caught by this offence and to ensure that the offence does not risk criminalising unintended debates that it would not be proportionate or necessary to curtail.

Clause 2: Publication of images

19.Clause 2 amends section 13 of the 2000 Act to criminalise the publication online of an image depicting an item of clothing or another article, in such a way as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organization. The image must be accessible to the public, but the image may have been taken in private–for example, if a photograph of an ISIS flag hanging on the wall of a bedroom in a home is posted on a publicly accessible internet forum.

20.The Government says that “the objective of the offence is [ … ] to deter people from engaging in displays which may encourage others to support a terrorist group; it is no more than necessary to accomplish the objective; and strikes a fair balance between the rights of the individual and those of the community [ … ]”29

21.It is already a criminal offence to wear clothing or display an article in a public place where this is likely to arouse suspicion of membership of a proscribed group.30 In addition, sections 1 and 2 of the Terrorism Act 2006 already provide for the offence of encouraging terrorism and dissemination of terrorism publications. In particular, section 2 of that Act makes it a criminal offence to disseminate a publication which is likely to be understood as a direct or indirect encouragement, or be useful in the commission or preparation, of terrorist acts.31

22.As with clause 1, there is no requirement for the publication of an image in support of a proscribed organisation to intentionally encourage support for a proscribed organisation. Nor is there a requirement for the publication to be reckless as to encouraging support for a proscribed organisation. Clause 2 requires only the publication of a photo or video of, for example, a t-shirt or a flag in a private home, which arouses reasonable suspicion that the person supports a proscribed organisation.

23.Liberty states that it “does not support the existing law’s criminalisation of a costume. The further criminalisation of photographs of a costume only exacerbates the risk that law enforcement officials attempting to interpret the meaning of a photograph will mistake reference for endorsement, irony for sincerity, and childish misdirection for genuine threat.”32 Reporters Without Borders fear that this clause criminalises the publication of photographs which may be part of responsible journalism in the public interest.33

24.Professor Clive Walker notes that this clause catches “the display of historical photographs, such as IRA members in uniform during the War of Irish Independence 1919–21 [ … ] the espousal of historic causes and actions which are still supported by contemporary proscribed organisations thus becomes a major potential target for this offence.”34 This is particularly problematic where an organisation that is now proscribed might previously have undertaken regular political work before being proscribed. For example, one might envisage the publication of photos “in such a way or in such circumstances as to arouse reasonable suspicion” that the person supports that proscribed organisation, but where that support clearly only relates to that organisation’s work and objectives prior to proscription. Criminalising such action would be clearly problematic.

25.In evidence, Max Hill QC also stated that this clause is problematic.35 He explained that the use of emblems or flags supporting proscribed organisations are often used as supporting evidence in prosecutions of other offences to show the mind-set of the defendant, which can be placed before the judge and jury.36 However, whilst this may be useful evidence to indicate the defendant’s involvement in other terrorist offences, we are concerned that the criminalisation of this conduct alone risks falling foul of proportionality. It is particularly disproportionate given the low threshold that provides for an individual to be convicted for simply “arousing reasonable suspicion” that he or she is a member or supporter of a proscribed organisation (which replicates the threshold currently provided in the Terrorism Act 2000).

26.In our view, to criminalise the publication of an article which may be worn or displayed in a private place risks catching a vast amount of activity and risks being disproportionate, particularly given the lack of incitement to criminality in the mens rea of this offence. It risks a huge swathe of publications being caught, including historical images and journalistic articles, which should clearly not be the object of this clause. In our view, given the lack of clarity as to what would be caught by this offence and the potentially very wide reach of clause 2, it risks a disproportionate interference with Article 10. We recommend that clause 2 be removed from the Bill or, at a minimum, amended to safeguard legitimate publications and to give greater clarity as to what acts are, and are not, criminalised.

Clause 3: Obtaining or viewing material over the internet

27.Under section 58(1)(a) of the Terrorism Act 2000, a person commits an offence if he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism.37 Clause 3 of the Bill amends this section to include viewing online material of a kind likely to be useful to a person committing or preparing an act of terrorism. Where a person views such material three or more times, they commit the offence if they know, or have reason to believe, that the record contains or is likely to contain terrorist material.38 The offence is made out if a person views terrorist material on three or more different occasions, even where the material is different each time.39 The defence of reasonable excuse is retained.

28.The Government says that:

“A person who is considering involving himself in the commission or preparation of terrorist acts is rightly criminalised if he takes active and deliberate steps to collect, or make records of, information which would be useful to him, or to another, in carrying out terrorist acts, and the criminal law should proscribe those collecting/record-making activities regardless of where the information is obtained from. The internet is the modern-day source of much of this material and it is therefore proper to criminalise the collection of material from, or making of records by means of, the internet. Likewise, the damage that can flow from repeatedly viewing material useful to a terrorist–whether or not a permanent record is made or collected–warrants the criminalisation of the act of viewing.”40

29.Max Hill QC has previously criticised proposals to criminalise people who view content linked to terrorism online, warning that “thought without action must not be criminalised. While we can all agree that there should be nowhere for real terrorists to hide, we should also agree that legislating in the name of terrorism when the targeted activity is not actually terrorism would be quite wrong”.41

30.It is important to note that this offence requires no active expression, invitation or encouragement at all; it simply involves looking at a website. It may be a different website on each occasion and the viewings may occur over an extended period of time as there is no time limit included in the clause. We consider criminalisation of passive activity a dangerous direction of travel. By way of comparison, we note that an individual may not be prosecuted for merely viewing indecent images of children.  It is a requirement of that offence that the images must be in the possession of the individual, meaning within their custody and control (i.e. downloaded or stored on their computer).42 Whilst we recognise the need to adapt to new technologies and practices, and the need to bridge the current gap between downloading and streaming material, there is a clear risk that this clause would catch academics, journalists and researchers, as well as those who view such material out of curiosity or foolishness without any intent to act upon the material in a criminal manner. Professor Clive Walker notes that “the Government and researchers have repeatedly asserted that there is no clear production line from viewing extremism or even being ‘radicalised’ into becoming an active terrorist.”43

31.Furthermore, the defence of reasonable excuse is not sufficiently clear.44 There is no guidance provided in clause 3 as to what is meant by a reasonable excuse–this assessment would be left to the jury. Liberty points out that “[w]hile a defence of “reasonable excuse” may prevent the successful prosecution of some journalists and academics, the chilling impact of these provisions remains. It is a brave reporter or researcher who will be undeterred by the prospect of a 15 year prison sentence.”45 Reporters Without Borders states, “it may be that journalists would only be availed of its protection, if at all, only having endured the stress and uncertainty of a criminal trial. This legal uncertainty plainly compounds the chilling effect of this proposed offence on journalistic activity.”46 We agree that it is dangerous to rely upon prosecutorial discretion not to prosecute in certain types of cases.

32.We note that a similar provision47 was twice struck down by the French Constitutional Court on the grounds that (1) it was unnecessary in light of existing offences; (2) it was disproportionate because of a lack of requirement to prove intent to adhere to terrorist ideology; and (3) the defence lacked certainty. The Court found a breach of the right to free communication of ideas and opinions.48 In our view, clause 3 runs the same risk.

33.We recommend that those scrutinising the Bill give Clause 3 particular consideration. This clause may capture academic and journalistic research as well as those with inquisitive or even foolish minds. The viewing of material without any associated intentional or reckless harm is, in our view, an unjustified interference with the right to receive information protected by Article 10. We think that, unless amended, this implementation of this clause would clearly risk breaching Article 10 of the ECHR and unjustly criminalising the conduct of those with no links to terrorism. We recommend that, at the very least, consideration is given to narrowing the offence to ensure that it only captures those viewing this material with terrorist intent and that the defence of reasonable excuse is clarified as to what constitutes legitimate activity and that this is set out on the face of the Bill.

9 Independent Reviewer of Terrorism Legislation, Counter-Terrorism and Border Security Bill 2018, 7 June 2018

10 Q2 [Max Hill QC]

11 Q2 [Max Hill QC]

12 Q2 [Corey Stoughton]

13 Qq7–16 [Max Hill QC]

14 Defined by section 3(5) of the Terrorism Act 2000 (“the 2000 Act”).

15 R v Choudary and Rahman [2016] EWCA Crim 61, para 35

16 R v Choudary and Rahman [2016] EWCA Crim 61, paras 46 and 70

18 R v Choudary and Rahman [2016] EWCA Crim 61, para 46

19 Reporters Without Borders (CBS0005) para 5

21 Q4 [Corey Stoughton]

22 Q2 [Max Hill QC]

23 Q2 [Max Hill QC]

25 Joint Commmittee on Human Rights, Third Report of Session 2005–2006, Terrorism Bill, HL Paper 75 / HC 561, para 33; First Report of Session 2006–07, The Council of Europe Convention on the Prevention of Terrorism, HL Paper 26 / HC 247, paras 30–34

26 Sunday Times v UK (No.1) 1979 2 EHRR 245

27 Handyside v UK, [1990] ECHR 32

28 European Convention on Human Rights, Article 10(2)

30 Terrorism Act 2000, Section 13

31 Terrorism Act 2006, Section 2

33 Reporters Without Borders (CBS0005) para 7

34 Clive Walker (CBS0001) p 7

35 Q6 [Max Hill]

36 Q6 [Max Hill]

37 Terrorism Act 2000, Section 58(1)(a)

39 Counter-Terrorism and Border Security Bill, Clause 3(2)(b) and (3)(3)(1B)

42 Criminal Justice Act 1988, Section 160; R v Porter [2006] 1 Cr. App. R. 25; R v Leonard [2012] 2 Cr. App. R. 12

43 Clive Walker (CBS0001) p 9

44 In the case of R v G; R v J, [2009] UKHL 13, the House of Lords held that the defence of reasonable excuse must be an objectively verifiable reasonable excuse to be determined by the jury.

46 Reporters Without Borders (CBS0005) para 11

47 Penal Code, Article 421-2-5-2

48 Decision No. 2016–611 QPC of 10 February 2017 – Mr. David P; violation of Article 11, Declaration of the Rights of Man and the Citizen 1789; Clive Walker (CBS0001), p 9

Published: 10 July 2018