Legislative Scrutiny: Counter-Terrorism and Border Security Bill Contents

3Extraterritorial jurisdiction

34.Clause 5 amends section 17 of the Terrorism Act 2006 to extend the circumstances in which terrorist offending abroad may be prosecuted in the UK, irrespective of whether the offence is committed by UK citizens or otherwise (i.e. universal jurisdiction). Section 17 provides universal jurisdiction for the UK courts over certain listed offences.49 This means that a person (British citizen or not) may be prosecuted in the UK for conduct that took place outside the UK which, had it taken place here, would have been unlawful under one of the listed offences. There is no requirement that the conduct must also be an offence in the jurisdiction where the conduct took place.

35.The Explanatory Notes to the Bill explain that the overall effect of section 17 is that if an individual were to commit one of these offences in a foreign country, they would be liable under UK law in the same way as if they had committed the offence in the UK. The Explanatory Notes also explain that, in practice, a prosecution would only be instituted in this country if the individual was present in the UK, for example having returned voluntarily from fighting with a terrorist organisation overseas, or having been returned in accordance with extradition procedures.50

36.Clause 5 would amend section 17 of the 2006 Act to extend extraterritorial jurisdiction to three further offences:

a)dissemination of terrorist publications (section 2, 2006 Act) [Clause 5(2)(a)];

b)wearing clothing or displaying an item in a public place in such a way as to arouse reasonable suspicion that he is a member or supporter of a proscribed terrorist organization (section 13, 2000 Act) [Clause 5(3)]; and

c)making or possessing explosives under suspicious circumstances (section 4, the Explosive Substances Act 1883) [Clause 5(4)].

37.In addition, extraterritorial jurisdiction over a section 1 offence (encouragement of terrorism) is currently limited to encouraging the commission, preparation or instigation of an offence listed in the Council of Europe Convention on the Prevention of Terrorism.51 Clause 5(2)(b) amends section 17 to remove the requirement that the offences must be listed in the Convention.52 The effect of the amendment would mean that a person who encouraged a terrorist act overseas could be prosecuted in the UK irrespective of whether the terrorist act is listed in the Convention.53

38.In evidence, Max Hill QC supported the extension of extra-territorial jurisdiction in principle, but raised particular concerns regarding the extension of extra-territorial jurisdiction over section 13 of the Terrorism Act 2000. Clause 5(3) would allow the UK to prosecute an individual, British or foreigner, who wore an item of clothing or displayed an article in support of a proscribed organisation even if this conduct was lawful at the time in the foreign country where the conduct occurred. Mr. Hill suggests that this is problematic given the proscription of organisations is not universally agreed, and that this extension should only be applied to UK citizens.54 He explains, “placing an individual [ … ] on trial in this jurisdiction in front of judge and jury means that you need to prove a level of awareness as to the offence at the time the person committed it. If there is no equivalent offence abroad it is difficult, at the point of proof, to demonstrate that the offence has been committed.”55 Professor Clive Walker agrees that this is problematic as it may “create a potential clash between UK law and the law of the country where the activity occurred [ … ] the fact that [the activity] falls under foreign law which has chosen not to incriminate or prosecute the display of support suggests that UK law should not intervene.”56 The same concerns apply to clause 5(2)(b), which removes the requirement for equivalence with the Convention, so that a person who commits an offence of encouraging terrorism under section 1 of the Terrorism Act 2006 could be prosecuted in the UK irrespective of whether they were encouraging an offence listed in the Council of Europe Convention on the Prevention of Terrorism.

39.We make no comment as to whether extraterritorial jurisdiction should apply to offences where the action would also be an offence in the country where the action (or the majority of the actions) took place. However, we are concerned that the extension of extraterritorial jurisdiction to offences, such as support for a proscribed organisation, is problematic in situations where there is not an equivalent offence in the country concerned. This would offend the principles of natural justice and sufficient foreseeability of the effect of one’s actions. It would mean a foreign national, with few links to the UK, could be prosecuted in the UK if he/she attended a protest or waved a flag overseas, in support of an organisation that is lawful within that overseas jurisdiction, if that individual then travels to the UK. We recommend that further consideration is given as to whether it is justified to bring domestic prosecutions against those who have no (or very few) links to the UK at the relevant time for conduct overseas that was perfectly lawful in the jurisdiction where it occurred.

49 The offences currently covered by section 17 are listed in the Explanatory Notes to the Counter-Terrorism Border and Security Bill [Bill 219 (17–19)–EN]: section 1 Terrorism Act 2006 (encouragement of terrorism); section 6 Terrorism Act 2006 (training for terrorism); section 8 Terrorism Act 2006 (attendance at a place used for terrorist training) and sections 9 to 11 Terrorism Act 2006 (offences involving radioactive devices and materials and nuclear facilities) of that Act; sections 11(1) (membership of proscribed organisations) and section 54 (weapons training) of the 2000 Act.

50 Explanatory Notes to the Counter-Terrorism Border and Security Bill [Bill 219 (17–19)–EN], para 49; Note that prosecutions in England and Wales for an offence committed abroad may only be instituted with the consent of the Director of Public Prosecutions, given with the permission of the Attorney General; such prosecutions in Northern Ireland are subject to the consent of the Director of Public Prosecutions for Northern Ireland, given with the permission of the Attorney General for Northern Ireland (section 19 of the 2006 Act). In Scotland, all prosecutions are brought by the Lord Advocate or on his behalf, where to do so is in the public interest.

51 Council of Europe Convention on the Prevention of Terrorism 2005. It aims to strengthen member States’ efforts to prevent terrorism in two different ways (1) by establishing as criminal offences certain acts that may lead to the commission of terrorist offences, namely: public provocation, recruitment and training and (2) by reinforcing co-operation on prevention both internally (national prevention policies), and internationally (modification of existing extradition and mutual assistance arrangements and additional means).

52 Terrorism Act 2006, Section 17; Section 1 of the Terrorism Act 2006. Offences listed in Listed in Schedule 1 2006 Act

54 Q9 [Max Hill QC]

55 Q9 [Max Hill QC]

56 Clive Walker (CBS0001) p 17

Published: 10 July 2018