Written evidence from Liberty (CBS0009)

1. Liberty welcomes the opportunity to submit evidence to the Joint Committee on Human Right’s inquiry into the Counter-Terrorism and Border Security Bill. The Bill poses several significant threats to civil liberties and human rights, symptomatic of a poorly conceived strategy that mistakes blind expansion of government power for evidence-driven responses to national security concerns.

2. Our core concerns, each addressed in this briefing are:             

• The criminalisation of expression or inquiry divorced from any act in pursuit of actual terrorism.
• The impact of new charging measures on protest.
• A weakening of protections around the retention of biometric data.
• An extension of Prevent together with a failure to reflect on long-standing concerns about the strategy.
• A radical expansion of intrusive, suspicionless border powers in the face of long-standing concerns about existing powers set out at Schedule 7 of the Terrorism Act 2000 (the 2000 Act).

Criminalising expression and inquiry

Recklessly expressing support for a proscribed organisation

3. Clause 1 of the Bill extends the offence of “inviting support for a proscribed organisation” beyond knowingly inviting support to expressions of support and being “reckless” as to whether they will encourage support for a proscribed group.[1] The existing “invitation of support” offence is already dangerously broad. In the 2016 case of R v Choudhary and Rahman, the Court of Appeal held that a person need not be personally providing support for a banned organisation, rather: “the criminality…lies in inviting support (from third parties)”.[2] The support need not be tangible or practical, but could include approval, endorsement or other “intellectual” support.[3]

4. The Government is now seeking to erode the very element of the offence which allowed the Court in Choudary to conclude that the offence was compatible with the right to freedom of speech:                                                                                                                                                                                                                                                                                         When considering the proportionality of the interference, it is important to               emphasise that the section only prohibits inviting support for a proscribed               organisation with the requisite intent. It does not prohibit the expression of               views or opinions, no matter how offensive, but only the knowing               invitation of support from others for the proscribed organisation. To the               extent that section 12(1)(a) thereby interferes with the rights protected under               article 10 of the Convention, we consider that interference to be fully               justified.[4]

5. In addition to extending the criminal law to cover mere expression, the Bill lowers the threshold for criminality by specifying that those who express support being “reckless” as to the question of whether another will be encouraged have committed an offence.  Such a person faces a maximum prison sentence of 10 years.[5] While recklessness is a common legal test in some areas of the criminal law, including offences against the person, it is not an appropriate standard for criminalisation when applied to speech. As the Joint Committee on Human Rights (the Committee) concluded in 2006:              

                                                                                                                                                          …recklessness is normally applied to actions that are themselves within the               realm of criminality…. if you hit someone or deceive them then it is absolutely               appropriate for a jury to be able to convict you of an offence even if you did               not intend the consequences of your actions. The same nexus between               action and consequence should not exist for speech offences. Speech does               not naturally reside in the realm of criminality. This is why the element               of intention should always be attached to speech offences. It is the               means by which proper criminal responsibility can be determined.[6]

6. Encouragement of acts of terrorism is already an offence.[7] There is also a broad range of offences which relate to practical support for – and encouragement of ­- a proscribed organisation, including: directing its activities;[8] membership or professing membership;[9] wearing its uniform or displaying its insignia;[10]  arranging a meeting to support a proscribed group;[11] addressing such a meeting;[12] fundraising for the organisation or in other ways providing financial or practical support;[13] or – in some circumstances -  to fail to disclose a suspicion or belief that somebody else has provided such support.[14]

7. A debate or discussion about whether an organisation should be proscribed could lead to a prosecution under this section. As the Independent Reviewer of Terrorism pointed out in his evidence to the JCHR, this issue may be of particular concern where an organisation changes its objectives or approach.[15]

Publication of images

8. Clause 2 of the Bill creates a new offence of publishing an image of an item of clothing or an article in circumstances arousing suspicion that a person is a member or supporter of a proscribed organisation. It is already a criminal offence to wear clothing or display an article likely to arouse suspicion of membership of a proscribed group.[16] Liberty does not support the existing law’s criminalisation of a costume or insignia. The further criminalisation of photographs of a costume exacerbates the risk that law enforcement officials attempting to interpret the meaning of a photograph will mistake reference for endorsement, irony for sincerity, and childish misdirection for genuine threat.

9. The Government has made explicit its intention that the offence should cover photographs taken in a private place, deepening the risk that this offence becomes a means for the state to judge behaviour which does not and was not intended to incite criminality.[17]

10. The publication element of this new offence further risks having a chilling effect on journalists, archivists or researchers who may publish images, whether historic or contemporary, of the insignia of banned groups. The new offence does not require an affected individual to in fact be a member of a proscribed organisation, to support it whether tangibly or intellectually or to intend to encourage others to support a proscribed group by publishing an image. The only requirement is that the circumstances of a publication “arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation”.[18] Uncertainty as to what characteristics of an academic or circumstances of publication might lead to a suspicion of support for a banned group could well have a chilling effect on those simply seeking to document events.

11. The behaviour of those who disseminate terrorist publications intending to encourage or being reckless as to whether his behaviour encourages terrorism is already criminalised by section 2 of the Terrorism Act 2006 and will attract a 15 year maximum sentence under the provisions of this Bill.[19]

Viewing material over the internet

12. Clause 3 amends the existing offence of “collecting information” to include viewing online content “of a kind likely to be useful to a person committing or preparing an act of terrorism” three or more times. The content viewed may be different on each occasion. It is already a criminal offence to download information which could be useful for terrorism.[20] The Government’s intention is that the offence will cover situations where the defendant is in control of a computer, but also situations where an individual “was viewing the material, for example, over the controller’s shoulder”.[21]

13. The Government suggests that the “three clicks” requirement” is designed to prevent prosecutions of those who accidentally alight on online content, but it would be criminal to click on 3 different articles or videos of a kind likely to be of use to a terrorist, even if they relate to entirely different and unrelated groups and the clicks occur years apart. As the Independent Reviewer of Terrorism Legislation pointed out in his evidence to the Committee, the offence is too broadly framed and will capture too many innocent people.[22]

14. In October the Independent Reviewer of Terrorism Legislation criticised proposals from then Home Secretary, Amber Rudd, to criminalise people who viewed content linked to terrorism online. He warned that:                                                                                                   …thought without action must not be criminalised. While we can all agree that               there should be nowhere for real terrorists to hide, we should also agree that               legislating in the name of terrorism when the targeted activity is not actually               terrorism would be quite wrong.[23]

15. This new offence pointedly ignores that distinction. It risks criminalising academic inquiry, journalistic investigation or passive curiosity without any intention to harm. As the Independent Reviewer of Terrorism Legislation has pointed out, it also risks criminalising “those who view material in disgust, shock and disapproval.”[24]

16. While a defence of reasonable excuse is available, the courts have been clear that reasonable excuse is “a concept for decision by the jury on the individual facts of each case”. [25] It would be open to an individual to submit “for the jury's consideration his assertion that that purpose was an objectively reasonable one.”[26] The courts have explicitly declined to give more guidance than this, leaving the test an inherently uncertain one to be determined on the facts of an individual case. When the stakes are as high as 15 years in prison, it is the brave journalist or researcher who will be undeterred. The chilling effect of this offence on free speech will be significant.

17. The Government has failed to provide a compelling security justification for radical extensions of the criminal law into expression, opinion and inquiry far removed from the intention to do harm. Liberty recommends that clauses 1-3 be removed from the Bill.

Protest

18. Clause 14 of the Bill provides that where an order or notice is made by an authority under new section 22C of the Road Traffic Act 1984, in relation to measures to reduce the likelihood of danger connected with terrorism, that authority may now impose “a charge of such amount as it thinks reasonable in respect of anything done in connection with or in consequence of the order or notice (or proposed order or notice)”.[27] The charge is payable by an event promoter or organiser, or occupier of a site, and relevant events include those events taking place for charitable or not for profit purposes.

19. Liberty is concerned that this power to impose a charge could be levied against the organisers of static or moving protests or other demonstrations. An exemption should be set out to expressly exclude public processions and assemblies taking place to demonstrate support for or opposition to the views or actions of any person or body of persons, to publicise a cause or campaign, or to mark or commemorate an event,[28] from these charges. This amendment is designed to ensure the right of freedom of assembly and association as protected by Articles 10 and 11 of the European Convention on Human Rights (ECHR) are not curtailed by a demonstration organiser’s inability to pay any charge levied under this clause.

20. Liberty recommends that the Bill be amended to ensure that a new power to impose charges in connection with anti-terror measures at events or particular sites does not restrict protest rights through the imposition of costs.

Biometric data

Oversight of the Biometrics Commissioner

21. Section 63G of the Police and Criminal Evidence Act 1984 currently requires the Biometrics Commissioner to consent to the retention of biometric material where the qualifying offence is a terrorism offence listed in section 41(1) of the Terrorism Act 2008 (or a related ancillary offence, such as attempting or conspiring to commit the offence). Schedule 2, paragraph 2 of the Bill provides that such material may now be retained for five years without the consent of the Biometrics Commissioner.

22. The Explanatory Notes accompanying the Bill record that this change was intended to bring the Police and Criminal Evidence Act 1984 in line with the equivalent provisions under paragraph 20B of Schedule 8 to the 2000 Act, which does not allow for the oversight of the Biometrics Commissioner as detailed above. Liberty opposes the removal of the oversight of the Biometrics Commissioner, especially in a context where the fingerprints and DNA profile of a person arrested for, but not charged with, a terrorism offence or a terrorism-related offence are being retained.

23. The principles to which the Biometrics Commissioner makes reference when making his determination are outlined in the document “Principles for Assessing Applications for Biometric Retention”[29]. These include the nature, circumstances and seriousness of the alleged offence, the grounds for suspicion, the reasons why the arrestee has not been charged, the strength of any reasons for believing that retention may assist in the prevention or detection of crime, the nature and seriousness of the crime or crimes which that retention may assist in preventing or detecting; and the age and other characteristics of the arrestee and any  representations  by  the  arrestee  as  regards  those  or  any  other matters.

24. The Commissioner will grant such an application – and will consider the extended retention of such material “appropriate” – only if they are persuaded that in the circumstances of the particular case which gives rise to that application that:

• There are compelling reasons to believe that the retention of the material at issue may assist in the prevention or detection of crime and would be proportionate; and
• The reasons for so believing are more compelling than those which could be put forward in respect of most individuals without previous convictions who are arrested for, but not charged with, a “qualifying‟ offence.

25. Whilst Liberty does not support the retention of biometric data for those who have committed no crime in any event, the removal of this protection is alarming and Liberty is concerned that retention will no longer be dependent on a full and detailed consideration, by the Biometrics Commissioner, of the factors outlined above. 

26. Liberty recommends that Schedule 2, paragraph 2 be removed from the Bill and the oversight of Biometrics Commissioner retained. Safeguards present in Police and Criminal Evidence Act 1984 should not be removed for the purposes of bringing it into line with Schedule 8 to the 2000 Act. Instead the safeguard of Biometric Commissioner oversight should be introduced at Schedule 8 to the 2000 Act.

Retention periods

27. The Bill extends the time period for which invasive biometric data, including fingerprints and DNA, can be retained – including biometric data of people who have never been convicted of any crime – from two years to five years.[30] Liberty has grave concerns about the extent to which the Bill allows the retention of biometric data on anyone arrested, including DNA and fingerprints – even if they were unlawfully or mistakenly arrested.

28. There are already abuses of the retention of information in relation to the National Police Database,[31] and there is ongoing and unresolved controversy over the Government’s abject failure to comply with court declarations that existing police databases of custody images violate human rights laws.[32] Liberty opposes retaining the biometric data of people unlawfully or mistakenly arrested, as well as any expansion of biometric databases in light of its well-documented and heavily criticised failure to correct these egregious errors and human rights violations in the Police National Database of custody images.

29. Biometric data – physical, physiological and behavioural characteristics which allow for the unique identification of that person – is deeply private information. When the state seeks to take, retain and use such material, the individual’s right to privacy is engaged. There must be a legitimate aim for the intrusion, and it must not occur if the legitimate aim could be achieved in a way which either does not intrude into a person’s privacy or could do so to a lesser degree.

30. Liberty is not aware of any evidence that supports the suggestion that the detection of crime is improved by retaining biometric data of people who are arrested but not charged, or people against whom charges are dropped or who are found to be innocent compared to, say retaining the biometric data of random members of the public. There can further be no justification for a person unlawfully or mistakenly arrested to have their biometric data exceptionally stored rather than destroyed.

31. The collection of such data has wider privacy implications exacerbated by its connection with other sources of information and Government databases (for example, the Police National Computer, which sees connections drawn between sets of personal data and made available to a wider range of police bodies).

32. Finally, the retention of innocent people’s DNA has a disproportionate impact on people from BAME backgrounds. Estimates vary, but it has been projected that between a half and three-quarters of young black men have had their DNA stored on the DNA Database. This is because of the higher number of arrests of black people per head of population (which is not reflected in a correspondingly higher number of convictions).

33. Liberty recommends that the Bill be amended to remove provisions in Schedule 2 which extend from 2 to 5 years the time period for which the biometric data of innocent people can be retained.[33]

Prevent

34. The Prevent strategy seeks to pre-empt terrorist attacks by identifying those at risk of becoming terrorists. The Counter-Terrorism and Security Act 2015 now enlists public sector workers to carry out the government’s work, including requiring teachers from the child care sector up to university level to identify apparent signs of extremism in their students.
35. Clause 18 of the Bill extends the Prevent strategy by allowing local authorities, as well as police, to refer individuals to Channel panels. This provision is part of a broader Government commitment, heralded in a new CONTEST strategy, to drive counter-terror operations further into our communities. This new referral power will be used in conjunction with ill-conceived information-sharing arrangements between the security services and local service providers.[34]
36. Concerns about the impact and operation of Prevent have been raised by a number of individuals, organisations and bodies, including by the former Independent Reviewer of Terrorism Legislation,[35] the Home Affairs Select Committee,[36] the Joint Committee on Human Rights,[37] the Women and Equalities Committee,[38] the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association,[39] the UN Special Rapporteur on counter terrorism and human rights,[40] a host of academics,[41] the National Union of Teachers,[42] the National Union of Students[43] and Muslim community groups.[44] Concerns have also been raised in the House of Lords,[45] by Conservative[46], Labour[47] and Liberal Democrat[48] Members of Parliament and, by the Green Party.[49]

37. Parliament’s Joint Committee on Human Rights[50] and others[51] have echoed the call for a full, transparent and independent review of the Prevent strategy. The former Reviewer of Terrorism Legislation, David Anderson QC, while supporting the Prevent strategy in principle, has noted that an independent review would be: “peculiarly appropriate for an area in which potential conflicts between state power and civil liberties are acute, but information is tightly rationed’.[52]

38. The Government’s recent internal review of its CONTEST strategy, including the Prevent element, fails to look critically at widespread concerns about Prevent and simply reasserts the value of the programme. This internal review fails, in particular, to reflect on the strategy’s focus on non-violent extremism, the interaction of Prevent with the criminal law and other legal duties on public authorities, and problems with oversight and transparency highlighted by the former Reviewer of Terrorism Legislation, David Anderson QC.[53] Whilst the Government’s decision to publish statistical releases on Prevent is welcome, it has failed to publish the data which would allow for an assessment of the discriminatory impact of Prevent.[54] Data is published on the age, gender and region of residence of those referred under the Prevent programme together with the type of concern raised, but no data is published which would allow for an assessment of the impact of the programme on those of certain ethnicities and faiths.

39. Rather than extending the Prevent strategy by expanding the referral process, Liberty recommends that the Bill be amended to provide for a full and independent review of Prevent. Provision should further be made in the Bill to require the Government to collect and publish data on the faith and ethnicity of those referred to Prevent.

Suspicionless port and border control powers

40. Schedule 3 of the Bill introduces a new regime of suspicionless border control powers, which broadly mirror powers set out at Schedule 7 of the 2000 Act, but are based on an astonishingly broad definition of “hostile activity”.

Schedule 7 of the 2000 Act

41. Liberty, alongside many parliamentarians and civil society groups, has long objected to existing suspicionless port and border control powers provided for at Schedule 7 of the 2000 Act. Schedule 7 disproportionately impacts those of Asian ethnicity and is unduly invasive of privacy, dangerous to journalistic and legal privilege, and a violation of due process.

42. The latest report of the Independent Reviewer of Terrorism Legislation confirms that while the number of examinations under Schedule 7 has fallen, “the number of Asians examined under Schedule 7 is disproportionately high when compared to white persons and when expressed as a proportion of persons sharing the same ethnicity”.[55] Elsewhere suspicionless powers to stop and search also disproportionately affect those of certain ethnicities. Under suspicion-based search powers you are eight times more likely to be stopped and searched by police if you are black than if you are white,[56] but that disparity deepens when it comes to the power to stop and search without suspicion. Black people are 14 times more likely to face a search under the suspicionless power set out at section 60 of the Criminal Justice and Public Order Act than white people.[57]

43. The sort of intrusive powers available under Schedule 7 of the 2000 Act – including powers to question, search, seize and retain documents, access data stored on electronic devices and detain individuals for up to 6 hours - should only be available where there are reasonable grounds for suspecting that an individual is or has been concerned in the commission, preparation or instigation of acts of terrorism. This would provide a safeguard against the discriminatory use of Schedule 7 on the basis of ethnicity or faith.

44. Clause 15 of the Bill already amends Schedule 7 to clarify that answers given when questioned under Schedule 7 cannot generally be used in evidence in criminal proceedings against the individual questioned. This Bill provides the opportunity to further amendment Schedule 7. Liberty recommends that the Bill be amended to insert a requirement that an examining officer have reasonable grounds for suspicion before he can subject an individual to the intrusive powers to question, search, seize possessions, access data stored on electronic devices and impose detention of up to 6 hours.

Suspicionless powers to stop, search, seize, retain and detain under Schedule 3

45. The powers set out at Schedule 3 of the Bill largely mirror those granted by Schedule 7. Where an individual is stopped under Schedule 3, she must provide any information or document that the officer requests.[58] Failure to provide requested documents or information is a criminal offence, carrying a penalty of up to three months’ imprisonment and a fine of £2500.[59] A person can be body-searched and have any personal effects searched, seized and copied.[60] Property belonging to a person—such as a mobile phone, laptop, family photographs, or important work papers—can be seized and retained for a wide range of reasons for no clearly defined period of time.[61]

46. If an officer wants to stop or question a person for more than an hour, they must formally detain them.[62] Once a person is detained, they must be released no later than six hours from when questioning first began, unless they are detained under another power.[63] However, nothing prevents a border agent from circumventing these time limits by switching to the use of a different suspicionless border power, such as Schedule 7 of the Terrorism Act, effectively doubling the existing time limits. A detained person may be fingerprinted or have other “non-intimate” samples taken from them without their consent (subject to certain conditions).[64] Police and immigration officers with a counter-terrorism designation will be responsible for exercising the powers set out in Schedule 3.[65] Willful failure to hand over information where it is requested under Schedule 3 powers would be a criminal offence attracting up to 51 weeks in prison.[66]

47. The intrusive and suspicionless powers granted by Schedule 3 suffer from the same defects as the package of powers granted by Schedule 7. In one key respect, however, Schedule 3 is significantly more concerning. Whilst the statutory purpose set out at Schedule 7 is tied to criminal conduct, namely the “commission, preparation or instigation of acts of terrorism”, the statutory purpose for the powers set out in Schedule 3 covers a potentially vast and conspicuously uncertain range of behaviour. The intrusive stop, questioning, search, seizure and detention powers under Section 3 are available, without individual suspicion, “for the purpose of determining whether a person appears to be a person who is, or has been, engaged in hostile activity”.[67] The Bill defines a hostile act as including any act which threatens national security, the economic well-being of the UK, or which constitutes a serious crime where the act is carried out “for, or on behalf of, a State other than the United Kingdom, or otherwise in the interests of a State other than the United Kingdom.”[68] A person need not be aware that the activity they are engaged in constitutes hostile activity and the State that the hostile activity ostensibly benefits need not have instigated or even be aware of the activity.[69]

48. The statutory purpose set out at paragraph 1 to Schedule 3 of the Bill does not offer a sensible limit on the scope of this intrusive suspicionless power. Some of the behaviour caught may amount to a crime, for example the crime of unauthorised disclosure of information under section 1 or section 4 of the Official Secrets Act 1989, or the offence of spying under section 1 of the Official Secrets Act 1911. However the section also covers a huge range of entirely lawful behaviour. Somebody currently, or at any point in the past, involved in a business venture which may involve a diversion of investment from the UK to a third state would apparently be caught by Schedule 3. Their behaviour impacts the economic well-being of the UK and offers a corresponding benefit to another state. Similarly a politician or official negotiating a trade deal with the UK government which may offer some financial disadvantage for the UK and a benefit for another state would presumably be caught.

49. Schedule 3 as drafted is unacceptably broad. At the very least the Government must redefine the statutory purpose set out in paragraph 1 of Schedule 3 to ensure it is focused on clearly defined criminal behaviour. Once it has clarified the criminal behaviour it intends to target under Schedule 3, the Government must introduce a threshold requiring reasonable grounds for suspicion of criminal behaviour.

Access to a lawyer

50. Currently both Schedule 3 of the Bill and Schedule 7 of the 2000 Act provide for access to a lawyer except where such access would be likely to prejudice the examining officer’s determinations.[70] Liberty recommends that the Bill be amended to ensure that an individual subject to Schedule 3 powers is always able to access a lawyer before she is questioned. A corresponding amendment should be made to Schedule 8, paragraph 7 of the 2000 Act to ensure that individuals are always able to consult a lawyer before they are questioned under Schedule 7.

51. Both Schedules provide that a detained person is able to consult a solicitor in person unless the examining officer believes that the time it would take to consult a solicitor in person would interfere with the examining officer’s determinations.[71] Liberty recommends that the Bill be amended so that an individual can only be prevented from consulting a lawyer in person where the examining officer reasonably believes that the time it would take to secure a solicitor’s presence would create an immediate risk of physical injury to any individual. Corresponding amendments should be made to Schedule 8, paragraph 7 of the 2000 Act.

52. More concerning still, both Schedules provide that a detained person may be required to consult her solicitor “within the sight and hearing” of an officer where a direction to this effect is made by a senior police officer.[72] A senior officer can make a direction to this effect for a range of reasons, from concern about the impact on a investigation to situations in which she reasonably believes that the direction is necessary to avoid hindering of the recovery of criminally obtained property.[73]

53. Liberty does not believe there are any circumstances in which it is acceptable to require an individual to conduct private communications with a lawyer in front of a police or immigration officer. Liberty recommends that the Bill be amended to remove Schedule 3, paragraph 26 which would allow a senior officer to direct that an individual may only be allowed to consult a lawyer within the sight and hearing of police or immigration officers. A corresponding amendment should be made in relation to directions made under the 2000 Act, through the repeal of Schedule 8, paragraph 9.

54. This series of amendments would leave intact the ability of a senior officer operating under Schedule 3 or Schedule 7 to delay access to a solicitor for reasons related to criminal investigations or protection of the public within the 6 hour limit on detentions set out in the Bill and the 2000 Act. Under this amendment, however, no questioning would be permitted until a person had been permitted to take confidential legal advice in some form, upholding a basic due process safeguard in the face of dangerously broad and intrusive powers.

27 June 2018