1

Amendment to Terrorism Act 2000, s.12, ‘Expressions of support for a proscribed organisation’. Insert new clause 12(1A): removes requirement of ‘inviting’ support - replaces with ‘expressing’ support. Recklessness as to whether a person to whom the expression is directed will be encouraged to support a proscribed organisation.

The reformulation to allow for the absence of a direct invitation to support means that this offence in s.12 will overlap considerably with the offences under ss.1 and 2 of the Terrorism Act 2006, which relate to direct or indirect incitement. This approximation to the Terrorism Act 2006 creates several potential objections:

• would the amendment serve any useful purpose when this type of conduct is already criminalized elsewhere? Surely, the idea of creating an atmosphere conducive to supporting terrorism has been addressed sufficiently by the Terrorism Act 2006;
• the safeguards under the Terrorism Act 2006 are not replicated – ie that there should be an ‘encouragement’ which suggests action by another and is more than a passive reflection of one’s own stance. Furthermore, although indirect encouragement can include glorification, which sounds more passively descriptive, s.1(3)(b) then contains the vital qualification that the ‘statement from which those members of the public could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated by them in existing circumstances’. Thus, outward-facing action is again being emphasised in a way which may be absent from clause 1.

In the absence of that emphasis on outward facing action, the offence might be criticized as a thought crime, whereby persons who aspire to the same political objectives as terrorists run the risk of prosecution for their ideological beliefs. Thus, I might say that I support the political objectives of IRA in the sense that I agree with their aspirations for a united Ireland. Of course, I might qualify that statement with a rejection of their violent means (which they also renounced some time ago), but that qualification does not act as a defence since I am still supporting an organization which is proscribed. I might be reckless as to whether people will misunderstand the limits of my support, but it is interesting that the clause does not even consider the possibility of intentional support.

The law should only cross this line from action to adherence to ideology/rhetoric in the case of members of proscribed organisations; their joining of such a group leaves them ready to do whatever is ordered. Outsiders are not in that position and should be punished for actions (or the encouragement of actions by others) and not for contingent beliefs about political ideology rather than support for violence. The result is the criminalisation of associating oneself with extremist views, not with terrorism. To take a concrete example, Anjem Choudary crossed the line when he espoused the cause of ISIS ([2016] EWCA Crim 61) but not when he espoused the imposition of Sharia law or broad notions of jihad (struggle against oppression). The frustration with the existing limit in s.12 was expressed by the then Conservative Party leader, David Cameron, who said that Choudary ‘is one of those people who needs to be looked at seriously in terms of the legality of what he's saying because he strays, I think, extremely close to the line of encouraging hatred, extremism and violence.’ (https://www.independent.co.uk/news/uk/home-news/political-leaders-condemn-islamic-protest-march-1857088.html, 4 January 2010). The point here is not only that Anjem Choudary was convicted under the existing section 12 as even astute speakers can easily cross its line but also that hatred, extremism and violence are significantly different categories and anti-terrorism should always seek to distinguish between violence and extremism. The point was underlined by the Court of Appeal which emphasized that the expression of non-tangible support must be more than a reflection on a personal belief or to share a personal belief since the mischief is to strengthen, promote or assist the group (ibid., para.49). Seemingly, the Home Office now wishes to remove this qualification, which would take us back to the principled objections raised above. Crossing a boundary in this way does raise issues of free expression which may ultimately undermine the legitimacy of the offence (such as it stands), contrary to the position under the existing formulation (ibid., paras.70, 71, 79).

Finally, the subjective recklessness test is a mixed blessing. It will be easier to prove for online expression when impacts on the audience may be hard to discern. But, as mentioned earlier, it takes the law further away from the greater legitimacy of condemning direct terrorist intent.

In conclusion, clause 1 is a marginal but on balance unjustified extension to the existing very broad boundaries of the criminal law.

2

Amendment to Terrorism Act 2000, s.13, in order to add ‘Publication of images’

The new offence in s.13(1A) ensure applicability to activity online by dropping the requirement of ‘public place’ from (1A)) and inserting the term ‘publish’ without even reference to any kind of broad audience. The effect is to move s.13 away from its public (dis)order origins which in the Prevention of Terrorism (Temporary Provisions) Act 1974 adapted laws against Blackshirts in the Public Order Act 1936, s.1. In this way, s.13 becomes an offence of publication, as well as of behaviour in the streets. Since expression has shifted to the internet more than the streets, the new offence appears to be an inevitable progression. But arguments against its addition to the statute book arise from necessity and also proportionality, similar to those for clause 1 above.

Thus, the offences in the Terrorism Act 2006, ss1, 2, are already available to suppress encouragement of support for terrorism (often online). If the publications caught under s.13(1A) do not encourage support for terrorism, then one wonders where is the social harm? There is no longer any element of disturbance of the Queen’s peace. Even worse, the problem arises of criminalising the display of historical photographs, such as IRA members in uniform during the War of Irish Independence 1919-21. Indeed, one is far more likely to find historic pictures of uniforms, flags or banners than contemporary images. The espousal of historic causes and actions which are still supported by contemporary proscribed organisations thus becomes a major potential target for this offence, and the fact that the image is historic does not excuse its publication once the offence is enacted (see clause 20 for transitional provisions). Again, the qualifications in the Terrorism Act 2006 offences about emulation do not appear here. The other potential target could be sectarian Scottish football supporters, though the Scottish Procurators Fiscal do not seem to struggle for available charges against those who display paramilitary paraphernalia, despite the repeal of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012.[29]

One might predict that public order offences and offences such as the Communications Act 2003, s.127, will continue to be preferred, with the Terrorism Act 2006, ss.1 and 2 as back-ups. The notion of proscribed organisations is narrow compared to the notion of terrorism. It is terrorism which should be preferred as a basis for action in criminal law. Furthermore, the police may wish to avoid community antagonism and political controversy by taking action against lesser offending behaviour which amounts to offensive conduct rather than being linked to the suppression of political histories and cultures, as illustrated by ongoing controversy over the flying of the Hezbollah flag at Al Quds Day demonstrations. In a recent debate, even the Minister for Security suggested that, despite being ‘outrageous, disgusting’ in its views supporters on the streets in London can more suitably be dealt with under a ‘plethora’ of public order offences rather than proscription offences.[30]

The alternative German model of the criminalisation of scheduled emblems[31] brings more certainty than the proposed offences but is also unattractive since it requires fairly stable, fixed emblems. Often, it is difficult to know what is to be forbidden as associated with a proscribed group when the same symbol might have an historical and hallowed existence well beyond current usages by extremists. This point could apply to a flag with a black background with the shahada written in white, as it does to the Irish tricolor.

In conclusion, clause 2 is a marginal but on balance unjustified extension to the existing very broad boundaries of the criminal law.

3

Amendment to Terrorism Act 2000, s.58, by addition of new sub-offence, ‘Obtaining or viewing material over the internet’

Here in clause 3 is the latest incarnation of the long-promised repeated viewing mode of breaching s.58. It has some apparent simplicity – ‘three views and you are out’ - whether the defendant views the same record thrice or three different records (1B). However, on reflection, there is considerable uncertainty around the offence (such as what is a ‘view’ and whether one download becomes less ‘suspect’ behaviour than three clicks) as well as other more substantial criticisms as set out below.

The occasion is also taken to clarify that the offence can be committed by viewing on the internet without necessarily downloading (1A). It is technically hard to view anything on the internet without downloading some temporary file at least. However, one might imagine access at an internet café where any download is not within the ownership or control of the user, and so the only accessible download might be to the person’s memory.

The main controversy taken on here will focus on the ‘three views’ offence. The arguments against the new mode of offending are as follows.

First, the new mode of offending is too wide in its impact and uncertainty in its justification to bear that width. It will needlessly capture those who are truly or idly inquisitive. To justify clause 3, one must make the assumption that the activity is inherently risky (akin to looking into the eye of the Medusa) and points towards one outcome rather than another. Thus, the inherent claim is that repeated viewers will either be seduced or have their will overwhelmed by the inevitable power and persuasion of the terrorist messages. This result is contended to be a far more likely outcome or at least far greater risk than the prediction that repeated viewers are more likely to experience other outcomes. Yet, other outturns are statistically more likely. Compared to the numbers of visits and downloads of extremist materials online (amounting to many millions), there are perhaps 3,000 terrorists in the United Kingdom.[32] Perhaps they are seeking to educate themselves so that they can better debate these issues or produce counter-narratives for their children or friends. Perhaps they will be simply appalled and demotivated to harbour any sympathy with those who propagate such views. The government[33] and researchers[34] have repeatedly asserted that there is no clear production line from viewing extremism or even being ‘radicalised’ into becoming an active terrorist. The quantitative data reveals that the vast majority of people falling into both those situations do not commit terrorism. In summary, the new mode of offending is based on the facile premise of the ‘one-way’ or ‘conveyor belt’ radicalisation-to-terrorism thesis which the government is normally at pains to reject.[35] The indoctrination of individuals is presented as dangerously risky (and so worthy of criminal sanction). The evidence is that other attributes of risk should be established before the state intervenes, such as evidence of collecting or recording or downloading (as under the existing version of s.58) or transmission to others (as under the Terrorism Act 2006, ss.1, 2).

The second point about the new mode of offending is that it is largely misdirected. In order to deal with the bulk of data which can be categorised as terrorist related, it is a forlorn task to deal with the potential consumers (who also amount to millions of people). Instead, the effort should be directed towards creators and publishers, including passive platforms such as social media. As has been described elsewhere, that is exactly what is now happening, given the work of the CTIRU and the greater proactivity of the social media companies themselves.[36] Though these policies themselves raise issues of principle about censorship, they do at least promise far more effectiveness than picking off individuals with disquieting tastes in internet materials which they indulge in isolation.

The third concern about the new mode of offending is that it may breach the principle of freedom of expression (especially in the sense of the freedom to receive ideas as well as to impart them). It is of recognised that some latitude must be given to explore political viewpoints,[37] but how much? The arguments have been rehearsed in the French litigation which arose with the passage of the offence in Article 421-2-5-2 by the Penal Code by Loi 2016-731 of 3 June 2016, art.18:[38]

'Le fait de consulter habituellement un service de communication au public en ligne mettant à

disposition des messages, images ou représentations soit provoquant directement à la commission d'actes de terrorisme, soit faisant l'apologie de ces actes lorsque, à cette fin, ce service comporte des images ou représentations montrant la commission de tels actes consistant en des atteintes volontaires à la vie est puni de deux ans d'emprisonnement et de 30 000 € d'amende.

Le présent article n'est pas applicable lorsque la consultation est effectuée de bonne foi, résulte de l'exercice normal d'une profession ayant pour objet d'informer le public, intervient dans le cadre de recherches scientifiques ou est réalisée afin de servir de preuve en justice.'

My translation is

‘The act of habitually accessing online public communication services that exhibit messages, images or representations that directly encourage the commission of terrorist acts, or defend these acts, when this service has the purpose of showing images or representations of these acts that consist of voluntary harm to life is punishable by two years of imprisonment and a fine of €30,000.

This Article is not applicable when they are accessed in good faith from normal professional activity that has the objective of informing the public, conducting scientific research, or for use as evidence in court.’

This offence is arguably narrower than the reformulated s.58(1)(c) in that it is confined to data that directly encourage the commission of terrorism acts or defend those acts when involving harm to life. This formulation is narrower than ‘information of a kind likely to be useful to a person committing or preparing an act of terrorism’ under s.58.

This offence was struck down by the Conseil Constitutionel, Decision no. 2016-611 QPC of 10 February 2017 - Mr. David P,[39] because of its infringement of article 11 of the Declaration of the Rights of Man and of the Citizen 1789: ‘The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.’ The Conseil Constitutionel viewed the offence as lacking necessity because there were many other special offences and powers of surveillance and monitoring (paras.11-13), and as disproportionate because of the lack of a requirement to prove intent to commit terrorism or intent to adhere to terrorism ideology (para.14). Finally, the 'good faith' exception lacked certainty (para.15).

The official reaction was to reintroduce this offence by Loi no.2017-258 of 28 February 2017, art. 24.[40]  Under this version,  article  421-2-5-2  of  the  French Penal Code is articulated as follows:

‘Art. 421-2-5-2. - Le fait de consulter habituellement et sans motif légitime un service de communication au public en ligne mettant à disposition des messages, images ou représentations soit provoquant directement à la commission d'actes de terrorisme, soit faisant l'apologie de ces actes lorsque, à cette fin, ce service comporte des images ou représentations montrant la commission de tels actes consistant en des atteintes volontaires à la vie est puni de deux ans d'emprisonnement et de 30 000 € d'amende lorsque cette consultation s'accompagne d'une manifestation de l'adhésion à l'idéologie exprimée sur ce service.

Constitue notamment un motif légitime tel que défini au premier alinéa la consultation résultant de l'exercice normal d'une profession ayant pour objet d'informer le public, intervenant dans le cadre de recherches scientifiques ou réalisée afin de servir de preuve en justice ou le fait que cette consultation s'accompagne d'un signalement des contenus de ce service aux autorités publiques compétentes.’

My translation is:

‘The act of visiting, regularly and without legitimate reason an online public communication service making messages, images or representations available which either directly  incite  the  commission  of  terrorist  acts  or  glorify  these  acts,  where,  for  this  purpose,  this  service includes  images  or  representations  showing  the  commission  of  such  acts  involving  voluntary  attacks on life is punishable by two years’ imprisonment and a €30,000 fine where this visit is accompanied by an expression of adherence to the ideology expressed on this service.

In particular, consultation constitutes a legitimate reason as defined in the first paragraph, if resulting from the normal practice  of  a  profession  of  which  the  purpose  is  to  inform  the  public,  arising  in  the  context  of  scientific research or research carried out in order to serve as evidence in legal proceedings, or the fact that this visit is accompanied by a report of the content of this service to the competent public authorities.’

The amended version embodies two significant changes.

• One is that it seeks to clarify in the final paragraph the exception by confining it to professional purposes of research for broadly public purposes. However, whether this goes far enough is doubtful: it does not even recognise journalistic purposes as being potentially in the public interest, nor does it concede that every citizen might have research purposes under art.11 of the Declaration of 1789. The much broader s.58(3) defence seems preferable – let the jury decide who is a genuine researcher, no matter their status.
• The second change is more productive and demands that the ‘visit is accompanied by an expression of adherence to the ideology expressed on this service’. What exactly this means is not clear: does the consumer have to express a ‘like’ on the service itself, or can any endorsement, expressed in another context online or to friend offline, be sufficient evidence? I have not been through all the National Assembly debates to find any expression of the legislative intention, but can do so if you wish. Nevertheless, on its face, this is a significant addition, and endorsement in this way could be said to make the viewing more risky and therefore more worthy of sanction.

The Commission Nationale Consultative des Droits de l'Homme (CNCD) has issued an opinion that the replacement wording is still inadequate to comply with the Declaration of 1789, and so it recommends repeal.[41] Its advice reflects the fact that the amended version of the offence had again been struck down by the Conseil Constitutionel in its Decision no. 2017-682 QPC of 15 December 2017 - Mr. David P.[42] The arguments were similar to those in the previous decision including the lack of necessity because of existing measures (para.13), the lack of proportionality because of the lack of a requirement of a desire to commit terrorist acts (para.14), and the narrowness of the legitimate grounds (para.15).

The intended next move by the French Government in reaction to the latest condemnation has not been announced yet. For its part, one might predict that the European Court of Human Rights might have a more forgiving attitude, given its jurisprudence on counter terrorism and its position as a court of last resort.[43] Nevertheless, if lessons are to be drawn for the UK proposals in cl.3, the message is surely to take greater account of freedom of expression so as to withstand challenge. The European Court of Human Rights has increasingly underlined the access to Internet as an aspect of the freedom to receive and impart information and ideas. In Cengiz and Others v. Turkey,[44] it stated that:

‘[T]he Internet  has  now  become  one  of  the  principal  means  by  which  individuals exercise their right to freedom to receive and impart information and ideas , providing as it does essential tools for participation in activities and discussions concerning political issues and issues of general interest. ... Moreover, as to the importance of Internet sites in the exercise of freedom of expression , ‘in the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information in general. … User-generated expressive activity on the Internet provides an unprecedented platform for the exercise of freedom of expression ...’

This case concerned the wholesale blocking of access to YouTube which is more extreme than cl.3. Nevertheless, in the light of the French experience, further restraints should be inserted as follows into the new mode of offending under s.58 in order to reduce the chances of infringement of the Human Rights Act 1998:

• a narrower actus reus: confine the offence to data that directly encourage the commission of terrorism acts or defend those acts when involving harm to life. This formulation is narrower than ‘information of a kind likely to be useful to a person committing or preparing an act of terrorism’ under s.58
• a narrower mens rea: require proof of intent to commit terrorism activities by the consumer or others or intent to adhere to terrorism ideology.

If such constraints are not inserted, then it would be better for the sake of certainty and respect for expressive freedoms to drop clause 3 altogether.

4

Amendments to Terrorism Act 2006, ss.1 and 2, ‘Encouragement of terrorism’

The effect of the amendments is to change the test for proof as to the required impact on the audience. Instead of having to gauge the impact on the public to whom the material is actually published, the effect is judged by the standard of the reasonable person under (3)(a) but still within the context of some or all members of the public to whom it is published under (3)(b). This change makes it more likely to obtain a conviction in that:

(i) it avoids the argument that sometimes an audience is already entirely extremist and unlikely to be made more extreme is not a way of defending the charge;[45]

(ii) it avoids the argument that the audience was children who do not understand the message;[46]

(iii) specialist knowledge of specialist audiences – small cohesive congregations - is not required;

(iii) the calculation of how many is ‘some’ is made less difficult, assuming that ‘some’ requires more than one; the test of the reasonable person applies across the board.

Once again, this change is especially helpful for online messages where the nature of the audience may be debatable.

One might compare the case of R v Faraz, (Kingston-upon-Thames Crown Court, 27 May 2011), which provides excellent guidance (in the context of s.2). The defendant was acquitted on appeal.[47] Also note Iqbal v R:[48] This was an appeal against preliminary rulings in a prosecution under the TA 2000 s 58 and the TA 2006 ss 1,2. Posing as Abu Irhaab, the defendant distributed extremist materials on Facebook. His argument that the offences breached arts 9 and 10 was rejected (following R v Fawaz). The Court of Appeal also confirmed that recklessness was a possible option for mens rea.

At present, the offence requires that the statement must be made to ‘members of the public’, who must be in the multiple and are distinct from ‘persons’ who could comprise the respondents in a private conversation.[49] If the statement is made at a meeting, it must be a meeting or other group of persons which is open to the public under s.20(3). By s 20(3), the ‘public’ can include the public (or any section of it) of any part of the United Kingdom or of a foreign country).

At least the clause does not take the further step of applying the offence to activity in private as well as public settings or applies to activity in one-to-one settings is to be welcomed. To encompass private settings would be an intrusion into private and family conversations. For such settings, it should be possible to rely upon general offences of incitement, since the message is more directed than a general publication, or upon terrorism financing offences or, most drastic of all, upon child care proceedings.

In conclusion, these changes will have little impact but can be supported.

5

Extending extra-territorial jurisdiction under TA 2006, s.17

Clause 5 covers: TA 2000 (s.13, proscription) ; TA 2006 (s.1, 2, dissemination) ; Explosive Substances Act 1883, s.4. These proposals raise different considerations according to the offence affected.

The proposal in relation to the Explosive Substances Act 1883, s.4, is least controversial. It may be useful to extend the jurisdiction to deal with training and preparation activities in places such as Iraq and Syria, where local prosecution is impossible but from which FTFs might one day return home. Indeed, just as travel to terrorism and training for terrorism are recognised as international crimes (see UNSCR 2178 of 24 September 2014), so HMG might lobby for unlawful weapons possession for the purposes of terrorism to be an international crime. So, this aspect of the extension of extra-territorial jursdiction to the Explosive Substances Act 1883, s.4, is to be supported.

The inclusion of the other offences is more problematic. Proscription of illegal organisations (relevant to section 13) is not a legal device which is internationally endorsed or replicated in most national jurisdictions. International law has fostered financial sanctions listing, but that is a distinct and more limited device which does not make membership or public support of the listed entity per se a breach of sanctions. So, by listing s.13, clause 5 may be creating a potential clash between UK law and the law of the country where the activity occurred. Most likely, the activity under s.13 will not be a crime in the foreign country. It follows that forms of rendition or extradition are likely to be refused as is mutual legal assistance. The fact that the activity was not unlawful abroad could therefore undermine the viability of the prosecution in the United Kingdom. For instance, will a jury convict a person who took part in the Izz ad-Din al-Qassam Brigades military parade to commemorate the 30th anniversary of the movement, on the streets of Gaza City, in December 2017?[50] Other examples might relate to pro-PKK demonstrations in Turkey or Iraq. Whether the display is in favour or opposition to a foreign government, the fact that it primarily falls under foreign law which has chosen not to incriminate or prosecute the display of support suggests that UK law should not intervene. A contrasting problem is that it could also create diplomatic pressure in the United Kingdom to take legal action against the opponents of foreign regimes which are rightly criticized for their human rights and democracy records (including ‘countries of concern’ to the Foreign & Commonwealth Office). The UK law should not treat all its terrorism offences as if they were international law recognized universal crimes. There is also the potential problem that clause 5 would create potential conflict with international humanitarian law which should take primacy in the regulation of armed conflict.

Of course, it is understood that future prosecutions are here envisaged based on internet material available in the United Kingdom[51] and so mutual legal assistance becomes less relevant. However, the practicality of prosecution does not ally the concerns about whether the action should be viewed as a crime in the first place, given the foreign context in which it took place.

On balance, it would be safer to drop section 13 from clause 5. But if it is to go ahead, revisions to the proposal should include the following:

• limit to UK citizens or those who are not citizens of the foreign jurisdiction in which the action took place and/or
• create a list of ‘specified’ proscribed organisations which are either mainly based in the UK or active in the UK so that support abroad is criminalised of those proscribed organisations which have been proscribed as a threat to UK national security and not because of reasons of diplomacy or international solidarity.

As for the extensions to sections 1 (in relation to the dropping of reference to the Prevention of Terrorism Convention 2005)[52] and 2 (by its inclusion) of the Terrorism Act 2006, similar arguments apply as to section 13. The reason why s.2 was omitted from s.17 and the reason for the inclusion of the clause, ‘so far as it is committed in relation to any statement in relation to which that section has effect by reason of its relevance to the commission, preparation or instigation of one or more Convention offences’, was to seek to confine the extra-territorial claim to offences which have a basis in international law so as to maintain international legitimacy for such prosecutions. Dropping that basis carries the same risks as for section 13, so the same changes should be made as above.

6

Increase in maximum sentences

Four offences are affected: TA 2000, s.58 and s.58A, and TA 2006, ss.1 and 2. Two criticisms may be made.

The first is that neither judges nor other agencies which are relevant to sentencing have pointed to undue insufficiency or leniency in existing sentencing powers. Applying this criticism to each offence:

• s.58: The Sentencing Council reported that, between 2011 to 2016, ‘The average custodial sentence length after any reduction for guilty plea was 3 years 4 months (mean) or 3 years 2 months (median).’[53] These statistics are somewhat misleading since the Sentencing Council failed to carry out a survey of the majority of s.58 cases, which occurred before 2011.[54] The view expressed in R v Mansha,[55] was that ‘a person convicted of a terrorist offence must expect a substantial sentence . . . to serve as a deterrent to others and to mark the extreme seriousness of the criminality’. A six-year sentence was upheld. In R v Khuram Shazad Iqbal,[56] the defendant (aka ‘Abu Irhaab’) had used Facebook and Twitter to post internet links to 848 examples of extreme content and was found with nine copies of the al-Qa’ida magazine Inspire on his laptop; his sentence was three years (after a guilty plea). In R v Hussein Yusef,[57] the defendant was convicted under section 58 and sentenced to 6.5 years. He posted details of 56 US military personnel on Facebook. These seem to be the maximum awarded. By contrast, Erol Incedal was sentenced to just 3.5 years for his s.58 offence.[58] In Manchester, a 16 year old girl was sentenced to a 12 month referral order for s.58 offences.[59] She was linked to the boys who had plotted an explosion in Melbourne on Anzac Day but was not implicated in that plot. These are amongst the worst offenders. They provide no evidence of a need to increase the maximum sentence for s.58.
• s.58A: The leading reported case, R v Murney,[60] resulted in an acquittal so there is no guidance. One can appreciate the need for parity between s.58 and s.58A. But the absence of proven deficiency is even starker in the case of s.58A because of the dearth of prosecutions.
• ss.1, 2: The Sentencing Council reported that ‘Between 2006 and 2016 there were 28 adult offenders sentenced for the section 1 and 2 offences. 25 out of the 28 received an immediate custodial sentence. The average custodial sentence length was 2 years 10 months (mean) or 2 years 8 months (median), after any reduction for guilty plea.’[61] The review by the Court of Appeal in R v Rahman, R v Mohammed[62] resulted in a 5 and a half years sentence for Rahman. By contrast, Abbas Iqbal, a member of the ‘Blackburn Resistance’, who promoted through internet forums martyrdom operations against prime ministers, as well as filmed ‘military’ exercises in a Blackburn public park, merited two years’ imprisonment under s 2.[63] Thus, these actual sentences do not reveal the sentencing judge running into the buffers of an unduly low maximum limit.

Perhaps it might be argued that the judges are failing to reflect the seriousness of the conduct and that Parliament must now provide a correction. Yet, there is no evidence provided for this criticism in terms of public outcries, victim reviews, or reoffending rates.

A broader rejoinder might be that there remains the need to recognise in sentencing levels the degrees of dangerous harm and proximity to risk. However, to equate information collection or dissemination as being just as harmful or culpable as collecting materials for a bomb (as under TA 2000, s.57) is mistaken. This point was made by the Court of Appeal in R v Rahman, R v Mohammed[64] where it was stated that s. 2 offences are likely to be less serious than breaches of ss.57 and 58 of the TA 2000.

In conclusion, without a stronger evidence base, these changes should be halted. The equation of the offences to the TA 2000, s.57, is also wrong in principle, and more work should first be undertaken on the rationality of differentials between maximum sentences.[65] Surely, proximity to terrorism action is one relevant factor.

7

Sentences for offences with a terrorist connection under CTA 2008, s.30

There are two changes. The first is that Northern Ireland is included in the scheme. Its omission arose because of political sensitivities. In so far as the measure aids the criminalisation of terrorism by use of ‘normal’ criminal offences, this amendment is to be welcomed.

The second change is that the list of offences (CTA 2008, Sch.2) is expanded, such as by the inclusion of Offences against the Person Act 1861, s.18 (wounding with intent). By way of comment, the ability to treat ordinary offences as related to terrorism reflects a European model (eg French Penal Code art.421—1 and Spain's Organic Law 1/2015, art.573). But it is still not clear that the list is complete. For instance in R v Kane Gamble (Leicester CC, 20 April 2018), a computer hacker who targeted US intelligence entered a guilty plea under the Computer Misuse Act 1990. The offence was described as ‘an extremely nasty campaign of politically motivated cyber-terrorism’. Yet, the offence is not listed under the CTA 2008, s.30. This amendment is to be welcomed, but further research is needed as to whether: the list is now appropriate; and whether the legislation works satisfactorily.

8, 9, 10

Extended sentences for dangerous offenders under the Criminal Justice Act 2003, ss.224, 226A, 226B, Sch 15 and Sch.18.

These changes reflect the expansion of these extended sentencing measures to a wider range of terrorism offences (including those under cl.6), now listed in its own Part 3 of Sch.15 of the Criminal Justice Act 2003 (for England and Wales). The additions remain limited: not all terrorism legislation offenders can or should be treated as ‘dangerous’.

These changes are rational, but put into the spotlight the question of what happens to terrorism offenders during their extended time in prison, a point raised below.

11, 22

and Sched.1

Amendments to ‘Notification requirements: general’ in the CTA 2008, Pt.IV.

The Home Office here seeks to reform the existing notification regime under the CTA 2008, Pt IV, rather than seeking to establish a new supplemental regime for offenders. Nevertheless, the reforms are substantial. The effect to create what might be described as a ‘TPIM-lite’, which entails more intrusion into private life than existing notification and will always endure much longer than a TPIM. However, it is subject to the important safeguard that the subject must have been convicted of a relevant offence, as presided over by an independent judge in open court.

The extra requirements as to ‘contact details’ are in keeping with the spirit of the existing scheme, though surpass significantly existing practices in relation to address details by demanding mobile phone details and email addresses (cl.11(6)). Internet connection details might also be considered as worthy of inclusion in this definition. The scheme is then even further extended beyond the original idea of being assured of the person’s location. Thus, details as to vehicles, banks, and identification documents must be provided. Hence, one can begin to describe the intrusions as a form of ‘TPIM-lite’.

To date, notification has been given a clean bill of health under the ECHR article 8 in R (Mohamed Irfan) v Secretary of State for the Home Department.[66] The application for judicial review was refused because the CTA 2008 scheme was adjudged to be proportionate under article 8. Of course, the increasing demands of notification under the CT&BS Bill may put this endorsement at risk.[67]

Whilst not objectionable as a further way of managing released terrorist offenders, since clause 11 proposes a much greater intrusion into private life, extra safeguards should be specified to ensure there is no breach of art.8:

• there should be a review of the conditions at least annually with the subject invited to make representations. The need to do so is especially high for notification based on foreign convictions as illustrated by Commissioner of Police of the Metropolis v Ahsan,[68] where the potential for damage to mental health was recognised as a relevant factor affecting long term legality under art. 8. In that case, notification orders under CTA 2008 s.57 were potentially valid on the basis of a US conviction. But the trial judge accepted that A was low risk and non-violent. So the basis for the order was neither necessary nor proportionate having regard to Art 8. It is possible that a Schedule 4 notification (for a foreign offence) may differ from notification for a UK offence (where the offence is a trigger under ss.44-46). Certainly, there is more room for debate about foreign offences as shown by the need for an application to a court under section 57 – designed to prevent an oppressive foreign sentence being applied.
• there should be a statutory duty to issue guidance for subjects, just as has been agreed recently under the Sanctions and Anti Money Laundering Act 2018, s.43.
• there should be the assurance of sufficient resources for the police, probation or others to handle these new demands.

Furthermore, a broader inquiry into a more graduated response between Notification Orders, Probation/Licence conditions and TPIMs should be undertaken.[69]

Cl.22 deals with transitional arrangements. It makes the point that the added impositions have effect in relation to notification requirements that apply to a person in respect of an offence committed, or a sentence or order imposed, before or after the commencement day of the legislation. This retrospective effect raises the question whether it can be counted as a breach of article 7 of the European Convention by imposing a heavier ‘penalty’. The important starting point for any assessment of the existence of a ‘penalty’ is to determine whether the measure was imposed following a conviction for a ‘criminal offence’. One must also consider: the nature and aim of the measure and whether it is meant to be punitive or preventative, its classification under domestic law, and the procedures linked to its adoption and execution; and its impact on rights: Welch v UK.[70] On that basis, the article 7 point is arguable, but there are some contra-indications

• the Sentencing Council[71] viewed notification as distinct from the criminal process: ‘The following requirements or provisions are not part of the sentence imposed by the court but apply automatically by operation of law. … The operation of the notification requirement is not a relevant consideration in determining the sentence for the offence.’
• so long as primarily of a preventive  nature, even a substantial  impact on the person does not turn the measure into a penalty: Van der Velden v Netherlands[72]
• special police surveillance or the house arrest of a dangerous person designed to prevent the perpetration of criminal offences have been accepted as not within the concept of criminal offences. [73]

12

Notification requirements: power to enter and search home

Clause 12 inserts a new power under the TA 2000, s.56A, to enter and search ‘for the purpose of assessing the risks posed by the person to whom the warrant relates’ – ie a person to whom the notification requirements apply. The warrant must be issued on an application made by a senior police officer to a justice who must be satisfied that the requirements are met.

By comparison the TPIM Act 2011, Sch.5 para.6(3) confines the purpose of the search power to ‘that of ascertaining whether there is anything on the individual, or (as the case may be) in the premises, that contravenes measures specified in the TPIM notice.’

This power is outrageously wide and should be curtailed:

• the justice should have reasonable belief that: person is subject to notification and the person may be acting in breach of the notification order
• the purpose should be to establish the presence of the relevant person, the relevant residence, or the relevant contact/banking/vehicle/identification document details;
• the search and entry must be necessary and proportionate to the needs of enforcement of the notification order; it must be shown than entry by consent is not viable; it must be shown that steps are being taken to minimise disruption to the private lives of other family members such as by the timing of the search.

13

Serious crime prevention orders under the Serious Crime Act 2007

SCPOs are on the march. They have now been applied to Northern Ireland (Justice Act (Northern Ireland) 2015 (NIA 9) Part VIII) and Scotland (Serious Crime Act 2015, s.46). The next step is to extend them to a wider range of terrorism offence, which is done by referring to the list in the CTA 2008, s.41. At present, financial related offences are alone mentioned in the Serious Crime Act 2007, sch.1 para.16MA.

This change is welcomed as furthering the policy of the criminalisation of terrorism. It remains to be seen whether resources will be available for enforcement. Further research is needed on the impact of this measure – is it used at all and to what effect?

General observation about terrorism sentencing

Rather than these piecemeal reforms to specific offences or specific schemes (a trait also reflected by the Sentencing Council of England and Wales[74] and the Acheson Review[75]), a more holistic review of terrorism sentencing is required. There should be consideration of the principles or purposes of terrorism sentencing and public consideration of appropriate penal regimes not just of confinement but also of desistance.[76] Instead, the CT&BS Bill addresses the issue of heavier sentencing and more intrusive post-release conditions, without bringing forth any evidence that: sentencing judges have expressed frustration at current limits; or that there is a high level of recidivism or even reengagement amongst terrorism convicts; or that terrorism risk is increased or reduced by prison ‘treatment’ programmes. In addition, research should be undertaken into disparities in the sentencing of terrorists in Scotland and Northern Ireland.

14

Traffic regulation – amending the Road Traffic Regulation Act 1984

The principal amendment relates to measures were instituted by the Civil Contingencies Act 2004 which inserted the Road Traffic Regulation Act 1984, section 22C, which allows for an order for the purpose of preventing or reducing danger or damage connected with terrorism, such as by a ban on all, or all but specially authorised, vehicles. Section 22D is supplemental to section 22C and ensures that an Anti-Terrorist Traffic Regulation Order may be made only on the recommendation of the local chief police officer. Section 22D further allows the placing in a road of obstacles and obstructions or may authorise works, such as blockers. Restrictions might also be varied according to the level of threat. In addition, the definition of ‘extraordinary circumstances’ in section 67 of the Road Traffic Regulation Act 1984 is expanded to include terrorism, so that the police can place traffic signs to control ordinary traffic in emergencies for 28 days. The use of these orders is subjected to paragraph 1 of Schedule 9 to the Road Traffic Regulation Act 1984 which enables the Secretary of State, (or with the consent of the Secretary of State, the National Assembly for Wales) to direct a local traffic authority to make or not make a permanent traffic regulation under Section 1 or 6 of that Act.

Approximately 40 Anti-Terrorist Traffic Regulation Orders are made annually.[77]

Further changes are now made by cl.14. A new s.22CA is inserted to allow for monetary charges to respond to the fact that the Local Authority (Transport Charges) Regulations 1998[78] do not apply. The proposed ATTRO must relate to a relevant event, and the charge will be imposed on the person promoting or organising the event or a relevant site for the purpose of protecting a relevant event or a relevant site from danger or damage connected with terrorism. A ‘relevant event’ means (a) a sporting event, social event or entertainment, or (b) any other event that is organised for commercial, charitable or not for profit purposes. A ‘relevant site’ means a site on which activities are carried out in connection with the supply of essential goods, systems or services.

Three amendments are here suggested:

• one is to clarify what may be charged and what may not. In particular, what might be considered to be protective security connected to the event or site. This issue has caused problems with policing charges in relation to football;[79]
• second is to require the police to consult with the organisers and with the local authority and to take due account of the public interest in holding the event or supporting the site and the ability to pay of the organiser or owner
• third is to alter the wording of cl.14(2) – ‘The authority may impose a charge of such amount as it thinks reasonable.’ This wording should be more objective – the amount a reasonable authority would impose in all the circumstances having regard to the public interest factors mentioned above.

Cl.12(11) also allow a summary power to the police to install temporary traffic bollards and other obstructions under the Road Traffic Regulation Act 1984: s.94A. This power should be time-limited so that local authorities can play a role.

15

Evidence obtained under port and border control powers under the PTA 2000, Sch.7

The provision introduces a statutory bar on the use in criminal trials (with the usual exception of perjury) of admissions made during a Schedule 7 examination under the powers of compulsion under para,5. The idea was previously announced: Government Response to the Annual Report on the Operation of the Terrorism Acts in 2015 by the Independent Reviewer of Terrorism Legislation (Cm 9489, 2017): ‘On your recommendation that there should be a statutory bar to the introduction of Schedule 7 admissions to a subsequent criminal trial, I agree that it should be clear that such material is inadmissible, and will consider legislating accordingly when there is an appropriate opportunity to do so.' p.6

This change has long been argued and is welcome.

16

Detention of terrorist suspects: hospital treatment – amendment of TA 2000, s.41 and Sched. 7

Here is another very sensible provision. The problem of disruption to the detention clock was identified acutely in 2006 and 2007. Mohammed Abdul Kahar was shot by police in an arrest operation in 2006.[80] Dr Kafeel Ahmed was severely burnt (and later died) in the Glasgow airport attack in 2007.[81] The proposal now under clause 16 is to stop the clock if the person is removed to hospital but it does not stop, however, while the person is actually questioned for the purpose of obtaining relevant evidence.

This amendment reflects the previous announcement in the Government Response to the Annual Report on the Operation of the Terrorism Acts in 2015 by the Independent Reviewer of Terrorism Legislation (Cm 9489, 2017) p.7: ‘In my response to your 2014 report I undertook to consider legislating, when an opportunity arises, to implement your recommendation that Schedule 8 be amended so that the detention clock can be paused for pre-charge detainees who are admitted to hospital. Although no suitable opportunity to legislate has yet arisen, I am happy to reaffirm that commitment.’

This change has long been argued and is welcome.

17 and Sched.2

Retention of biometric data for counter-terrorism purposes etc

The changes are made to PACE 1984 ss.63F, 63M, 63P (and the corresponding Criminal Procedure (Scotland) Act 1995 and the Protection of Freedoms Act 2012 Sch.1 which applies to Northern Ireland), the Terrorism Act 2000, Sch.8, the CTA 2008, s.18B, and the TPIM Act 2011, Sched.6 para.11. Given this scope, the CT&BS Bill will harmonise biometric retention periods for arrests on suspicion of CT offences whether made under TACT or PACE powers of arrest especially where the person is not subsequently convicted of any offence. A disparity can arise because of the higher number of arrests of suspected terrorists under PACE rather than under s.41 of the TA 2000, leading to different checks and time limits being applied depending on the arrest power. The Commissioner for the Retention and Use of Biometric Material has endorsed reform of the regimes though only in relation to the duration of National Security Determinations.[82] The main changes are as follows.

First, the retention period becomes 5 years not 2 years, whether the person is arrested/charged or whether the material is retained following a National Security Determination. The reason is to reduce burden on the police and Biometrics Commissioner in repeatedly reviewing cases (and MI5 where they support the review). The authorities also claim that an SOI who poses a risk is likely to continue to do so for longer than two years, and retention of biometrics could help to manage of risk at a residual level for closed SOIs (the majority of SOIs).[83] It may be difficult to justify on positive grounds an extension since in many cases there will not be significant new or additional intelligence during two years.

The reason for a time limit is to ensure due regard for the privacy of the individual. The period of two years was in line with other administrative arrangements (notably the extendable length of TPIMs). The Data Retention and Investigatory Powers Act 2014 (DRIP) and now the Investigatory Powers Act 2016, Pt.IV, in implementation of the Data Retention Directive 2006/24/EC, specify a default period for data obtained under surveillance powers of just 12 months. Those arrangements have, of course, been found wanting by the courts.[84] It is therefore regrettable that safeguards in the CT field are now to be further weakened especially in so far as

• access to retained data is not limited to the purpose of combating ‘serious crime’
• access to retained data is not subject to prior review by a court or an independent administrative body
• no notification is required to the subject to any decision to review or extend. According to the Commissioner for the Retention and Use of Biometric Material, the subject is never informed of the NSD[85]
• review is made less frequent rather than more frequent.

If there is to be an extension, then these safeguards should be reflected. These proposed arrangements are inadequate to avert a breach of privacy rights.

A second change is to allow Chief Constables to make National Security Determinations (NSDs) authorising retention of biometric data taken in force areas other than their own. Currently, if fingerprints are taken following arrest in a different force area to the one investigating the suspect, the Chief Constable for the arresting force must authorise their retention even though his/her force may have no knowledge of the case. The Chief Constable of the investigating force would be better placed to do this but is not currently able to. These changes regarding the authorising chief officer are sensible administrative adjustments without implications for privacy.

The third change is to allow the police to hold multiple copies of fingerprints – ‘further fingerprints’. This change would allow grouping of biometric data taken on different occasions for the same individual and so remove nugatory requirement for multiple records and authorisations where the case is identical. Currently, multiple sets of fingerprints will often be taken for the same person on different occasions, such as when they are arrested, Sch7 stopped, then arrested again. Currently, three different authorisations based around an identical necessity and proportionality case would need to be processed to retain the data. This change seems to be a sensible administrative adjustment. It is presumably confined to fingerprints as that is the ‘in field’ technique potentially used repeatedly for identification. Biometric data would not be repeatedly taken in the same way.

A fourth change is to remove the requirement of consent of the Biometrics Commissioner in relation to section 63F of PACE which provides for the retention of biometric material where a person has been arrested or charged with a qualifying offence, but not convicted. Section 63F(5) now allows for biometric material taken in connection with the investigation of the offence to be retained for three years with the consent of the Biometric Commissioner. Paragraph 2 of Schedule 2 of the CT&BS Bill  removes the requirement for the Biometric Commissioner’s consent to retention where the qualifying offence was a terrorist offence listed in section 41(1) of the CTA 2008. This change aligns the PACE regime to that under paragraph 20B of Schedule 8 to the TA 2000, so fingerprints and DNA profiles of persons arrested for, but not charged with, a terrorism offence or a terrorism-related offence will automatically be retained for three years, whatever arrest powers (PACE or the TA 2000) was used. This weakening of oversight is unacceptable. The indications from data protection law is that more safeguards are needed, not fewer.

Other issues raised by the Commissioner for the Retention and Use of Biometric Material, Annual Report 2016  need attention such as transfer from the counter terrorism database (within the Metropolitan Police) to the NDNAD and review of legacy material.[86]

18

Amendments to the CTS Act 2015 in relation to Channel - Persons vulnerable to being drawn into terrorism

The purpose is to amend Channel programme to allow local authorities to refer a person at risk to panels (in addition to the exclusive police initiated route as at present). The CT&BS Bill amends the CTS Act 2015, s.36(3), and also consequently amends s.38 to require cooperation.

The administrative widening of responsibility is to be welcomed and reflects growing confidence in, and capabilities of, local authorities in the CT sphere. It has been pointed out that the experience of local authorities in dealing with vulnerable persons is vast,[87] though terrorism risk should not be entirely equated with safeguarding children.[88] The main difficulty will remain the reluctance or practical inability to share sensitive information. A number of recent convictions have illustrated the lack of trust between the authorities or even the ability to react to information received.[89] Therefore, the modes of cooperation between police and local authorities must be made more explicit by means of statutory guidance.

It is notable that independent education authorities (including universities) are still not allowed to initiate, even though many referrals originate from them. Further explanations should be sought of the reason for the limits on this policy extension.

19

Terrorism reinsurance

Section 2 of the Reinsurance (Acts of Terrorism) Act 1993 (reinsurance under Pool Re arrangements to which the Act applies) is amended by allowing Pool Re to cover losses from interruption to business not consequential on physical damage (such as because of ongoing investigations). Pool Re had lobbied about this gap in the light of the London Bridge incident - see Pool Re, Terrorism Threat & Mitigation Report January – July 2017 (TMR-2-17). Pool Re, Terrorism Frequency Report 1/2018: in the light of the attacks in 2017, Pool Re made some revision to the scheme under the Reinsurance (Acts of Terrorism) Act 1993 – it will include loss from cyberattacks.

This change has long been argued and is welcome.

However, in addition, there should be clarification of the coverage in relation to the meaning of ‘terrorism’ under section 2. Pool Re has revealed that the Salisbury attack is not likely to be certified as a terrorism attack even though eight business remain closed and trade is down up to 50% in central Salisbury.[90]

There also remains the problem of affordable cover for SMEs. Private cover costs remain high – the BBC Online reported that Hiscox adds 25% to the premium and will not contract with adjoining properties.[91] Pool Re still provides 90% of the commercial property insurance market, but there is poor take-up from SMEs which is a problem in the recovery from major attacks.[92]

20 and sched.3

General

This part of the paper will not dissect the dense details of Part II on Border Security. The reason is that Part II largely reproduces existing formulae in the TA 2000, Sched 7. Sched 7 has been substantially altered following the Anti-Social Behaviour and Police Act 2014, Sched.9 and also, in the light of the Miranda decision, by the reformulated Home Office, Examining Officers and Review Officers under Schedule 7 to the Terrorism Act 2000: Code of Practice (London, 2015). Though some further reforms remain to be considered (see below), the result has been a substantial decrease in the number of examinations and closer compliance with human rights requirements.

The overall verdict on Part II has already been given earlier in this paper - that it amounts to a form of ‘Diversion’ as to the rationale for the reform and also as to the likely impact of the new powers.

In this section of the submission, the purpose is to focus on the key wording in Part II - the notion of 'hostile activity'. Under Sched.3 para.1(5), 'A person is or has been engaged in hostile activity for the purposes of this Schedule if the person is or has been concerned in the commission, preparation or instigation of a hostile act that is or may be - (a) carried out for, or on behalf of, a State other than the United Kingdom, or (b) otherwise in the interests of a State other than the United Kingdom.' Under para.1(6) 'An act is a “hostile act” if it - (a) threatens national security, (b) threatens the economic well-being of the United Kingdom, or (c) is an act of serious crime.' The individual and the state may be unwitting perpetrators of hostile acts, but presumably not both at the same time. 'Serious crime' is defined in para.1(7) to mean an offence where a person who has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of 3 years or more or when 'the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose. No definition is given of national security or economic well-being, so the Explanatory Memorandum states that they bear their 'ordinary meaning'.[93]

Legality

The first criticism of this terminology is its vague nature - that it lacks legality. The term, 'hostile activity' has not been used in the UK beyond war-related legislation, such as the Civil Defence Act 1939 and the Geneva Conventions Act 1957.[94] The Home Office ECHR Memorandum seeks to justify on the argument that restrictions even on the basis of mere suspicion are possible at ports where people present themselves,[95] though the precedent cited, Beghal v DPP,[96] was not based on 'hostile activity' which is vaguer than the terms ‘terrorism’ or even ‘national security’. It is also true that terms such as 'national security' and 'economic well-being' are not defined in other legislation (such as the Security Service Act 1989, s.1). But the need for clarity grows when the terms are used for powers designed to restrict individual liberty and privacy rather than tasking arrangements for organisations. Therefore, these terms should be defined more fully.

Proportionality

It is welcome that there is provision for oversight by the Investigatory Powers Commissioner to keep Part II under review. However, the review cannot cure the fact that powers go beyond the mischief identified by the Impact Study related to the Bill, which again claims that the Salisbury attack shows the need for legislation.[97] If that is the real mischief behind Part II, then the powers should be confined to powers to stop, question and detain without reasonable suspicion on the basis that the person has information, or is carrying materials or data, which might relate to

• crimes under the Official Secrets Acts 1911-89
• CBRNE crimes or proliferation

Given the broad powers to stop, question, search and rummage in the Immigration Act 1971 and the Customs and Excise Management Act 1979, as well as powers under PACE, added to the powers in the TA 2000 sched.7, it is most doubtful that any extra powers are necessary. But confinement to the two purposes specified above would ensure much greater legal certainty and would better secure proportionality for the identified threat of state inspired terrorism or other criminal activity. It would also help to deliver the expectations of the Home Office Impact Assessment which predicts that the usage of Part II will be very low.[98] In this way, the broad powers are not needed in practice and might result in dangerous overusage.

21 and Sched.4

Consequential amendments

The main point of controversy here is that by cl.21(2) the Secretary of State is enabled by regulations to make any provision that is consequential on any provision made by this Act. The Home Office, CT&BS Bill Delegated Powers Memorandum claims that the power would be 'prudent' and that the CTS Act 2015, s.48, is a precedent.[99] However, the Bill is distinct from the CTS Act 2015 in that it contains no novel legislative scheme (unlike TEOs or the translation of Prevent into legislation for the first time). Here, even Part II is closely based on existing models. The power should be removed.

Of note in detail in sched 4 para.3 Amendments to the Bail Act 1976 to recognise the fact that many (most) arrests will be under PACE and not the TA 2000 s.41. The refusal to allow for bail under s.41 and to make similar arrangements becomes ever more anomalous and is dealt with below.

22

and

23

Transitional

The provisions in clause 22 relating to notification have been dealt with above.

Clause 23 relates to the amendments to offences and penalties/orders. Distinctions are again made between the offences and penalties (which are not retrospective) and orders (such as SCPOs in cl.11) which may be so.

24

Extent

The clause rightly recognises that, for instance, Prevent and Pool Re do not apply in Northern Ireland.

Anderson, D., Attacks in London and Manchester, March–June 2017: independent assessment of MI5 and police internal reviews, (Home Office, 2017)

The Report’s recommendations are not detailed and are contingent on the undisclosed post-attack reviews and the Operational Improvement Review. So, it is difficult to be precise about what may be required, but the headlines arose, as repeated in the CONTEST Review of 2018 of commitments to better data exploitation and wider sharing of information derived from MI5 intelligence (including with neighbourhood policing). Yet, the issue is not taken up in the Bill.

It might also be argued that the process of designation as a SOI, including whether a person is put on a watch-list or no-fly list, requires greater legal regulation to meet privacy standards.

Hill, M., Independent Reviewer of Terrorism Legislation, The Terrorism Acts in 2016 (London, 2018)

Chapter 8 lists the following as a firm legislative change: ‘the adoption of a universal threshold, namely ‘reasonable grounds to support’ the exercise of Schedule 7 powers by the application of the criteria within the Code of Practice. Adoption of such a test would be a step in the right direction, demonstrating the absence of either ethnicity alone or the exercise of powers in a random fashion.’

Hill, M., The Westminster Bridge Terrorist Attack 22 March 2017 Operation Classific (London, 2018)

Chapter 4 lists the following as potentially requiring legislative change:

‘greater thought and clarity be given to the question whether and

• when it is necessary to transport a detainee sometimes hundreds of miles from their
• place of arrest’
• a bail provision for TACT arrests

The latter issue and the more general issue of guidance on when the TA 2000, section 41 should be used and when PACE, section 24 should be used, remains a crucial uncertainty in law which is creating many problems.

It is also mentioned in the report that PACE s.32 arrest search powers were used against TA 2000 s.41 detainees (para.2.11). Was that lawful? According to s.32(2)(b): ‘if the offence for which he has been arrested is an indictable offence, to enter and search any premises in which he was when arrested or immediately before he was arrested for evidence relating to the offence.’ That power is different from powers in s.32(1) and (2)(a) which relate to search of the arrested person and do not mention ‘indictable offence’. However, persons arrested under section 41 are not arrested for an indictable offence. Terrorism is not any offence. So, there may be a need for a further search power in the TA 2000, schedule 5.

Accountability for policies beyond pursue ie reform of Prevent Oversight Board and new public structures for Protect.

As these aspects of CONTEST become more public oriented and are placed on a statutory basis, there is a need to strengthen their governance. Greater accountability and audit is vital to acceptability and legitimacy.

Anonymity on arrest

The anonymity accorded to terrorism arrestees is notable. Compared to sex offenders, there is a predictably low charge rate, which may be a relevant factor, but why then are terrorism offenders given anonymity whereas sex offenders are not? In addition, it seems that terrorist suspects are treated better than those suspected of the murder of burglars (as in the recent example of Richard Osborn-Brooks), though issues of retribution and hate crimes apply acutely to both.

FTFs

No response has been made to the proposals in Anderson, D., The Terrorism Acts in 2015: Report of the independent reviewer on the operation of the Terrorism Act 2000 and Part 1 of the Terrorism Act (Home Office, London, 2016) Annex 2.

Review of proscription

The reforms set out in the Annex to the Independent Reviewer of Terrorism Legislation, The Terrorism Acts in 2016 (London, 2018) deserve close attention.[100] This point has become more pressing in the light of the decisions of the ECJ in Council v LTTE; Council v Hamas.[101] There must be proven an ongoing risk of terrorism to justify listing. It must be considered on the basis of recent materials which must go beyond the original national listing if not recent. The LTTE listing, based largely on proscription by the UK in 2001, was set aside. The same rules of review apply in the UK, meaning that the absence of review makes many current orders vulnerable to challenge.

Safety interviews

The reforms set out in the various Anderson Reports on this topic deserve closer attention. Even if no breach of the law has yet occurred, further guidance is needed.

Victims

In the UK counter-terrorism response, victims have long been neglected, and there are recurrent reports which ask for more attention. Despite the advance in administrative terms through the establishment of the cross-Government Victims of Terrorism Unit in March 2017,[102] the treatment of victims is possibly the most significant gap in the anti-terrorism legislative code..