Terrorism lecture 1 and 2 notes PDF

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TerrorismReadingJ Hodgson and V Tadros ‘How to Make a Terrorist Out of Nothing’ (2009) 72 Modern Law Review 984. J Hodgson and V Tadros ‘The Impossibility of Defining Terrorism’ ‘The Impossibility of Defining Terrorism’ (2013) 16 New Criminal Law Review 494-526.Lecture 1: The Definition of Terrorism...

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Terrorism

Reading J Hodgson and V Tadros ‘How to Make a Terrorist Out of Nothing’ (2009) 72 Modern Law Review 984. J Hodgson and V Tadros ‘The Impossibility of Defining Terrorism’ ‘The Impossibility of Defining Terrorism’ (2013) 16 New Criminal Law Review 494-526. Lecture 1: The Definition of Terrorism Even before the events of 9/11, England and Wales had a broad range of offences that were particularly concerned with terrorist activity. Since 9/11, that range has expanded substantially. Most acts of terrorism are covered not by terrorist offences themselves, but by standard offences such as murder, manslaughter, offences against the person such as assault, criminal damage and so on. Most terrorist offences proscribe activities that potentially contribute to or support such activity. Since 1997, the UK parliament has enacted four major pieces of legislation concerned with terrorism: the Terrorism Act 2000, the Anti-Terrorism, Crime and Security Act 2001, The Prevention of Terrorism Act 2005 and the Terrorism Act 2006, as well as a series of less important Acts. The first of these pieces of legislation – the Terrorism Act 2000 - however, is in part a consolidation and in part an extension of previous terrorism law, enacted primarily in response to IRA terrorism. It is still probably the most important piece of legislation on the books. DEFINITION OF TERRORISM Terrorism is not a distinctive criminal offence in itself. However, the definition of terrorism is incredibly important, because that determines when other offences and other measures of control apply. For example, s.57 of the Terrorism Act 2000 makes it an offence to possess an article in circumstances which give rise to a reasonable suspicion that it is for a purposes connected with the preparation or instigation of an act of terrorism. Whether a person is guilty of this offence obviously depends on what counts as an act of terrorism. Terrorism is defined by s.1 of the Terrorism Act 2000. Terrorism is a) the use or threat of action that is designed to influence the government or intimidate the public or a section of the public,

or which is made to advance political, religious or ideological causes; and b) involves serious violence against a person, damage to property, endangerment of life of another, serious risk to health and safety of the public, or serious interference with electronic systems. This definition of terrorism is broad. The central difficulty is to distinguish legitimate violent action by states and individuals from terrorism. And there is no easy way of doing that. Here are three challenging questions about it: 1) Can terrorism be committed by a state? States often use violence to advance political, religious or ideological causes. Police or military action are examples. It seems problematic for the definition of terrorism to include such action. One way around that is to remove state action from the definition. But that comes at a price. Consider the Lockerbie bombing – the bombing of an American plane over Lockerbie in Scotland which many people think was orchestrated by the Libyan government, and was probably carried out by Libyan intelligence. That seems a clear act of terrorism. 2) Terrorism and freedom fighting. One very difficult issue is that the definition of terrorism includes some people who are clear freedom fighters. Consider the attempts that were made to assassinate Hitler in the late 1930s and 1940s. Doing that does not seem to be an act of terrorism, but is included in the definition in the 2000 Act. It is difficult to exclude these cases without also excluding assassination attempts of legitimate political leaders – the Brighton bombing by the IRA, which was intended to kill the then Prime Minister Margaret Thatcher seems a clear act of terrorism (whatever one thinks of Thatcher’s policies). 3) Joining armed conflict. A further problem concerns people who join armed conflict. Consider George Orwell, who joined the fight against the Fascists in the Spanish Civil War. This seems clearly to fall within the definition of terrorism, but it is doubtful that it should. This has also given rise to challenging results in practice. For example, in R v F [2007] EWCA Crim 243 a Libyan man had been granted asylum in the UK. He was charged with being in possession of a document likely to be useful to a person committing or preparing terrorist acts. His document was a plan to overthrow Gaddafi, where only Gaddafi himself, his secret police and the armed forces would be targeted. Yet he was held to fall within the definition of terrorism. It seems that the organisation that he was supporting was precisely that which the UK government were fighting with to overthrow Gaddafi in 2011. One way around this might be to exclude joining armed conflict from the

definition of terrorism. But this would make those who intend to fight for ISIS in Syria also fall outside the definition of terrorism, which is hard to accept. As we will see, for some offences, there are reasonable excuse defences that can sometimes be extended to protect freedom fighters. Lecture 2: Terrorism Offences There are many distinct criminal offences concerned with terrorism. Many offences expand the scope of the criminal law substantially, and many are vague and poorly defined. There are various financial offences and again some are very broad. For example, inviting another to provide money or property where one ‘has reasonable cause to suspect’ that it may be used for the purposes of terrorism is an offence. 1 So if I ask you to give money to a religious group with reasonable cause to suspect that the money may be used for terrorism, but I don’t in fact suspect that to be the case, I can nevertheless be convicted of the offence. It is an offence to become concerned in an arrangement which facilitates the retention or control by or on behalf of another person of terrorist property. This is a strict liability offence, with a reverse burden defence available for those who can ‘prove that he did not know and had no reasonable cause to suspect that the arrangement related to terrorist property.’2 So if a bank holds funds for X and it turns out that X is a terrorist, all of the bank employees are in principle guilty of the offence unless they can prove that they had no reasonable cause to suspect that the bank was holding money for terrorists. There are offences concerned with terrorist organisations. For example, it is an offence to be a member of a proscribed organisation, to profess to be a member of a proscribed organisation,3 to support a proscribed organisation4 or to wear the uniform of a proscribed organisation.5 There are limited defences available to the first three offences Furthermore, there are some terrorist offences of omission. The first relates to the previous set of financial offences. If any person believes or suspects that any other person has committed one of these offences, and bases his belief or suspicion on information which comes to his attention in the course of a trade, profession, business or employment, it is a criminal offence if he does not disclose this fact as soon as is reasonably practicable to the police (again without a reasonable excuse).6 Some examples 1 Terrorism Act 2000 s.15. 2 Terrorism Act 2000 s.18. 3 Both proscribed by the Terrorism Act 2000 s.11. 4 Terrorism Act 2000 s.12. 5 Terrorism Act 2000 s.13. 6 Terrorism Act 2000 s.19.

Let us focus in more detail on some of the more prominent offences Perhaps two of the broadest are sections 57 and 58 of the Terrorism Act 2000. Section 57 creates the offence of possessing an article in circumstances that give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism. This very broad defence is narrowed to a degree by the presence of a defence where the defendant can prove that the article was not for a purpose connected with commission, preparation or instigation of an act of terrorism. This creates an evidential burden on the defence, but not a legal burden of proof. Section 58 creates the offence of collecting or recording information of a kind likely to be useful to a person committing or preparing an act of terrorism. This offence has recently been extended, by the Counter-Terrorism and Border Security Act 2019, to include those who view or access documents on the internet, but do nothing more to record or possess those documents. There is a defence for those with a reasonable excuse, including those who did not know and had no reason to believe that the documents contained the relevant information, and for those working as journalists or doing academic research. Even broader is section 38B of the Terrorism Act 2000 7 which makes it a criminal offence for a person who ‘has information which he knows or believes might be of material assistance’ in preventing an act of terrorism or apprehending, prosecuting and convicting another person for the commission, preparation or instigation of an act of terrorism, not to disclose that information to a constable without reasonable excuse. Finally, focus on the offence of encouraging terrorism. This offence, which now carries a maximum sentence of 15 years imprisonment, was created after the 7/7 bombings in London, by the Terrorism Act 2006, and was recently ameded by the Counter-Terrorism and Border Security Act 2019. The offence is set out as follows: Encouragement of terrorism (1)This section applies to a statement that is likely to be understood by [F1a reasonable person] as a direct or indirect encouragement or other inducement [F2, to some or all of the members of the public to whom it is published,] to the commission, preparation or instigation of acts of terrorism or Convention offences.

7 As inserted by s. 117(2) of the Anti-terrorism, Crime and Security Act 2001.

(2)A person commits an offence if— (a)he publishes a statement to which this section applies or causes another to publish such a statement; and (b)at the time he publishes it or causes it to be published, he— (i)intends members of the public to be directly or indirectly encouraged or otherwise induced by the statement to commit, prepare or instigate acts of terrorism or Convention offences; or (ii)is reckless as to whether members of the public will be directly or indirectly encouraged or otherwise induced by the statement to commit, prepare or instigate such acts or offences.

There is a defence for those who do not intend to encourage acts of terrorism, where the statements do not represent their views. One thing of note in this offence is that, unlike the standard criminal offence of assisting or encouraging (on which, see Child and Ormerod 45870), intent is not necessary with respect to any element of the act of terrorism. Recklessness is sufficient. At the time that the initial legislation was passed, there was significant concern that this offence would have a chilling effect on free speech. It is not clear that it has had such an effect in practice, though there is a genuine concern here. One reason that might be given for this expanded law is that it applies to statements which are published as veiled threats, but which might be read as warnings. Here’s an example, which goes back to Donald Trump’s (eventually successful) attempt to secure the Republican nomination: “I’m representing a tremendous — many, many millions of people — in many cases, first-time voters. These are people that haven’t voted because they never believed in the system,” he said. “Now, if you disenfranchise those people and you say, ‘Well, I’m sorry, but you’re 100 votes short, even though the next one is 500 votes short,’ I think you would have problems like you’ve never seen before. I think bad things would happen, I really do. I believe that. I wouldn’t lead it but I think bad things would happen.” This kind of ‘warning’ explicitly denies intent to encourage a riot. Yet, it is very likely said with the intent to encourage a riot. This kind of statement, then, might seem a borderline case of assisting or encouraging a riot, but seems to fall squarely within the offence of encouraging terrorism (assuming that a riot for political purposes amounts to an act of terrorism, which is clear enough according to s.1 of the Terrorism Act 2000).

Lecture 3: Restricting Liberty Without a Criminal Trial

Beyond criminal offences, a range of legislation has attempted to control terrorist activity by restricting the liberty and resources of terrorist suspects. It is important to see terrorist offences in that context – as one part of a set of measures that are designed to respond to the threat of terrorism. Police powers have been extended with respect to terrorist suspects, for example with respect to searching suspected terrorists, and extending the length that a person can be detained without being charged with committing a criminal offence. There are also a wide range of provisions that are concerned with the seizure, forfeiture and freezing of terrorist cash and assets. These security measures all compromise the liberty and resources of citizens, with significant risks that they are used against innocent people, and implemented on a discriminatory basis. By far the most controversial legal response to the threat of terrorism since 9/11, though, was the enactment of Part IV of the Anti-Terrorism Crime and Security Act 2001. Part IV was concerned with individuals who the UK would have deported, but where deportation to the available destination country would have compromised their human rights. The government considered that these individuals posed a risk to security through terrorist activities, but, for various reasons, it was believed that they could not be prosecuted for committing criminal offences. Part IV consequently allowed detention of those individuals without trial. An appeal procedure was set up to oversee and review detention, entitled the Special Immigration Appeals Commission, although the rights of the detainees to a fair hearing were severely curtailed by denying them access to information regarding their detention. This procedure involved derogation from Art.5(1) of the European Convention of Human Rights (ECHR), protecting the right to liberty. A (relatively small) number of individuals were held in Belmarsh Prison. The compatibility of the derogation with parliament’s human rights obligations under the Human Rights Act 1998 was then tested in A v Secretary of State for the Home Department. Derogation was permitted by s.14 of the Human Rights Act. Although Art.15 of the ECHR was not incorporated into the law of the UK, it was accepted by the Attorney-General that the derogation was permitted only that article was satisfied. Art.15 provides that In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. In A, it was held that, whilst the House of Lords was prepared to defer to Parliament that there was a public emergency threatening the life of the nation (although a number of Lords expressed doubt

that this was in fact the case 8), detention in Belmarsh could not be regarded as strictly required by the exigencies of the situation. The crucial point, for the House of Lords, was that the threat of terrorism was common amongst foreign nationals and UK citizens, but it was only members of the former group that was subject to detention without trial. As parliament obviously did not think that it was necessary to detain members of the latter group without trial, it could not be necessary to detain the former group without trial either.9 Consequently Part IV was declared incompatible with the UK’s obligations under the ECHR.10 The case led to enactment of the Prevention of Terrorism Act 2005, which replaced detention without trial in Belmarsh with a regime of control orders. Control orders apply both to UK nationals and non-nationals, and hence are not susceptible to the kind of argument that the House of Lords developed with respect to Part IV of the 2001 Act. There are two types of control order: derogating and non-derogating orders. A derogating order is an order which is sufficiently restrictive that it interferes with the human rights of the subject as protected by the (ECHR). A non-derogating order is an order which does not so interfere. These Control Orders were further replaced with Terrorism Prevention and Investigation Measures (TPIMs) in 2011. The main differences between TPIMs and Control Orders were three: 1) They were time limited to 2 years, whereas Control Orders could be renewed indefinitely; 2) The standard of proof for the imposition of a TPIM was higher; and 3) they were less restrictive of liberty – one particularly important way is that relocation was not permitted under the TPIM regime. TPIMs, like Control Orders that preceded them, are two step orders of the kinds that we explored in the context of domestic abuse. An order is placed on an individual which restricts their liberty. The person is then guilty of a criminal offence if the order is breached. The basis of the imposition of a TPIM is involvement in terrorism related activity. However, the evidential standard for the imposition of TPIMs has changed over time. The Prevention of Terrorism Act 2005 allowed the Secretary of State to impose a Control Order if he or she had reasonable grounds for suspecting that the individual was or had been involved in terrorism related activity. When Control Orders were replaced by TPIMs, the standard of proof was raised – a TPIM could be imposed only if the Secretary of State reasonably believed that the individual was or had been involved in terrorismrelated activity. The standard was clarified and arguably raised again in 2015, where the Secretary of State had to be satisfied on 8 And see Lord Hoffman’s dissent. 9 See particularly the judgement of Lord Bingham. 10 It should be noted that the HRA 1998 does not provide the courts with the power to strike down legislation, but only to declare it incompatible with the ECHR. See s.4. This meant that in principle parliament could have dug its heels in and Part IV of the 2001 Act would have remained in force.

the balance of probabilities, which was recommended by the Independent Reviewer of Terrorism Legislation, Lord Anderson. The current Home Secretary, Priti Patel, is currently seeking to lower the evidential threshold for the imposition of a TPIM again – back to ‘has reasonable grounds for suspecting’ involvement in terrorism related activity, which was the old threshold used in Control Orders. The current independent reviewer of terrorism legislation, Jonathan Hill QC has outlined the argument against this change – it is not clear that there are any real cases where the change is needed to improve security. The main difference between TPIMs as they were introduced and control orders is that TPIMs were less restrictive of liberty. In particular, they were intended to limit the power of the Secretary of State to relocate terrorist suspects, which was considered particularly challenging – suspects were in effect completely disengaged from family members and friends when they were located to another city. On the other hand, relocation was sometimes considered necessary, and the Labour Shadow Home Secretary at the time, Yvette Cooper, argued against this element of the law, partly on the grounds that just when the Cameron government (with Theresa May as Home Secretary) was seeking to restrict the power to relocate, it was fighting to ensure relocation was upheld in an actual case! The power to relocate was reintroduced in the Counter-Terrorism and Security Act 2015. Finally, the 2 year limit is now also under challenge. The CounterTerrorism and Sentencing Bill would allow TPIMs to be imposed indefinitely, with regular review, which was the position with Control Orders. It is fair to say that if the Bill is passed without significant amendment, we have been returned to the Control Orders regime that was ...