The Independent Reviewer writes …


Max Hill QC

Welcome to the website of the UK Independent Reviewer of Terrorism Legislation. I am proud to take over from my distinguished and rightly celebrated predecessor, David Anderson QC. Where he led the way in engaging with all sides in national and international discussion about terrorism and national security, so I hope to follow and to build upon David’s excellent work.

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Features

Here is the full text of my speech delivered yesterday at the National Liberal Club. The full title of the event was ‘Dogma or Demons? The media’s portrayal of a modern terrorist’.

During the Coroner’s Inquests into the London Bombings of 7 July 2005, there was a dispute concerning photographs and videos taken on board the Underground trains in which so many died or sustained serious injuries. For a twenty-first century event, the unusual feature of 7/7 was that with the exception of the Number 30 bus which was bombed in Tavistock Square, the atrocity occurred underground. Therefore, the outside world did not see images of the awful carnage beneath our streets.

When it came to the public Inquests four years later, media representatives understandably assumed that they would be able to publish whatever images were viewed by the Coroner. The understanding was that all evidence viewed in Court 73 of the High Court would be uploaded onto the Inquest Intranet and thence to their website for all to see. A Protocol dated October 2005 had been  reached between the DPP, Chief Police Officers and the Media companies all working on the assumption that material once seen in court could be seen by all. The Protocol includes the following :  The aim of the CPS is to ensure that the principle of open justice is maintained – that justice is done and seen to be done – while at the same time balancing the rights of defendants to a fair trial with any likely consequences for victims or their families and witnesses occasioned by the release of prosecution material to the media. Prosecution material which has been relied upon by the Crown in court [and which] should normally be released to the media .

Not so in this important aspect of the 7/7 Inquests. There was lengthy and principled argument on all sides, citing decided cases all the way back to Scott v Scott in 1913, in which Lord Diplock said: ‘As a general rule the English system of administering justice does require that it be done in public’ [Scott v Scott [1913] AC 417].  From there we went to AG v Leveller Magazine in 1979 [AC 440] ‘If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted … As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage  this.’ ‘However, since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rule’

As you would expect, the legal submissions  included  Article 10 of the European Convention on Human Rights, to which I shall return. The Coroner Lady Justice Hallett decided that stills and video footage of the Underground trains in the tunnels would be seen by all participants in the Inquests who needed to do so, but that there would not be wider distribution.

Why? We could debate the legal precedents all day, but the point is that publicising these images would unquestionably have fuelled the propaganda fire then being fanned by Al Qaeda, and subsequently by Daesh or so-called Islamic State. Every time there is a terrorist event worldwide, there are sympathisers, radicalisers or others who harvest any images they can find, often showing ordinary people who have been traumatised or injured or murdered by these criminals, and those images rapidly become the wallpaper of fear which is used to terrorise the majority and worse to radicalise the few who may be warped enough to become inspired to emulate what has gone before.

In preparation for today, I conducted a simple online search, typing ‘7/7’, and immediately found a large cache of images, centering upon the Number 30 bus and Tavistock Square, but including many showing the faces of the bombers, and also some footage from the Underground trains; clearly the latter reached the Internet by means other than the Inquest proceedings.

And so, my challenge to you is this; when you report on terrorism, are you playing into the hands of the terrorists?

Let’s examine the current climate. The UK, in fact England, has suffered the worst combination of terrorist attacks for many years. Since March 22nd, three short months ago, we have all lived through the pain of witnessing murderous attacks at Westminster Bridge, Manchester Arena, and London Bridge followed by Borough Market. Finsbury Park Mosque, just after midnight yesterday, now has to be added to the list. For hundreds of people, and thousands in the case of Manchester Arena, the pain is direct because they were there when it happened. But for the rest of us, the impact of terrorism is seen entirely through the medium of press reporting, in print, on screen and online. I do not question the industry and excellent journalism that goes into producing the majority of this information. However, I am struck by the sheer presence of these murderers on our front pages and on our screens. For days, weeks and even months after an attack, it is barely possible to avoid staring at the face of one or more of these terrorists. Why do we have to look at them? Do media outlets really analyse their purpose in publicising images of dead terrorists? Do you consider, or consider hard enough, that your repeat publication of these pictures is helping Daesh or whomever to create a cult of martyrdom for killers whom they claim were acting in the name of some ‘noble cause’, religious or ideological?

Of course, it is not my job to regulate the press. I do nothing more than review and report on the operation of the terrorism legislation. I do not write the legislation, nor do I set the Government’s counter-extremism strategy. But I am concerned with the impact of the legislation, and when I travel the country meeting people and asking them for their views, one of the repeat messages expressed to me is that there is a culture of allowing the wrong people to dominate the media on terrorism issues. Muslim community representatives in Leicester, Bradford and Manchester, many of whom I have met, tell me their voice is not heard, ‘nobody speaks for us, though many claim to represent us or our religion’.

In part, these concerns are directed at the Prevent programme, being one of the four pillars of the Government’s Contest strategy. It is not my purpose today to get into that space, though I am inevitably coming to a view over time as I see an increasing number of people and communities who are affected by the terrorism legislation.

My purpose today is to ask whether, in the pursuit of good journalism, the media is in part perpetuating the problem identified during my travels thus far, namely that greater care should be taken to avoid lending a voice to those who would harm us all, and to avoid giving the oxygen of publicity in death to those who apparently craved martyrdom, a status which as murderers and criminals they do not deserve.

So, for me that is the challenge inherent in our title for today. Dogma or Demons. We rightly demonise killers like those who have caused such suffering in the attacks this year. Yet, we must be careful not to lend any aura of justification through reporting about the dogma that may have driven one or more of these attacks.

I want to spend a few minutes examining how quickly things change in the world of counter-terrorism. Whilst the world wide web is a quarter of a century old, it is only during the last decade that we have seen a dramatic expansion in the use of the internet by terrorists. This has been accompanied by, even enabled by, the rapid and recent expansion in online communications platforms which are now used by terrorists.

Not so many years ago, those planning terrorist attacks were still using text messages or Blackberries, they were meeting in person in each others homes, in local open spaces, and during shopping trips for the everyday items they needed to make the improvised explosive devices they planned to deploy.

And, equally important, there would usually be clear influence exerted over would-be terrorists by radicalisers or trainers, those who spent time with their acolytes inspiring them to take life and even to end their own life in so doing.

As we know, almost all of these attacks have been and continue to be successfully disrupted by the Police and security services. When the evidence comes to court, we have seen many examples of young men – mostly they are young men – who have moved from a basic understanding and adherence to their religion, to an extreme, radical understanding of what are said to be religious tenets justifying murder. In fact, we know and it needs to be said again and again that Islam is a peaceful religion which cannot be used to legitimise terrorist murder. Terrorists actually operate in a vacuum. What they claim to do in the name of religion is actually born from an absence of real understanding about the nature of the religion they claim to follow. But the point is that radicalisers just a few years ago would suborn these young men, often rootless young men prone to casual criminality, and brainwash them into a plan for action.

That still goes on. We know that. But we are now seeing something comparatively new, running alongside. Whilst we must all wait for the full facts to emerge, it seems that some of those who committed terrorist murder on our streets in the past three months did so without any direct malign influence from a ‘traditional radicaliser’. Some of these people reach their murderous state almost in physical isolation, in other words they are influenced exclusively by what they read and what they see, rather than by whom they meet. It is this ‘remote radicalisation’ which is acutely difficult to spot, and which makes the repetition or perpetuation of terrorist activity by the media particularly vulnerable to abuse by those who wish us harm.

Naturally enough, the concentration of attacks we have witnessed this year leaves we the public and the media searching for the reason behind each individual event, together with any linkage between events. I can only be impressed by the investigative zeal of those journalists who made it into the housing estates around Barking almost as quickly as the Metropolitan Police, after the London Bridge attack. That said, I question why there was media reporting of CCTV footage showing three laughing attackers, was it five days before the attack? Why was that reported? How does it ease the minds of millions affected by the horror on London Bridge, seeing these grinning murderers? And when you published those images, did you know how important they might be to the ongoing Police investigation? It seems to me that, perhaps citing the mantra of the ‘public right to know’, we have come to a point where the media rush ahead, seeking to tell the story ever more quickly, when longer reflection would surely help, and in some cases might reduce interference with ongoing criminal investigations which should be left alone, at least whilst they are ongoing.

As a lawyer, you might expect me to point to those cases where significant trials have been impeded or even halted because of unwise commentary in or by the media during trial, or in the run up to trial. I think of McCann, an IRA trial which fell during the period when thought was being given to the partial restriction on the right to silence in interview, imported by the Criminal Justice and Public Order Act 1994. The Northern Ireland Secretary of the day gave an interview about the case, questioning whether the defendants’ silence could equate with innocence, and that interview was found to interfere with free trial rights which we must all maintain. Better not to have run that interview. It led directly to this commentary by Beldam LJ: ‘We are left with the definite impression that the impact which the statements in the television interviews may well have had on the fairness of the trial could not be overcome by any direction to the jury, and that the only way in which justice could be done and be obviously seen to be done was by discharging the jury and ordering a retrial.’ 92 Cr App R 239.

And I think of Abu Hamza, sometime cleric of Finsbury Park Mosque of course, who was villified by the press before his trial, enabling his lawyers to argue that he could no longer have a fair trial. The Court of Appeal said this: ‘The risk that members of a jury may be affected by prejudice is one that cannot wholly be eliminated. Any member may bring personal prejudices to the jury room and equally there will be a risk that a jury may disregard the directions of the judge when they consider that they are contrary to what justice requires. Our legal principles are designed to reduce such risks to the minimum, but they cannot obviate them altogether if those reasonably suspected of criminal conduct are to be brought to trial. Prejudicial publicity renders more difficult the task of the court, that is of the judge and jury together, in trying the case fairly. Our laws of contempt of court are designed to prevent the media from interfering with the due process of justice by making it more difficult to conduct a fair trial. The fact, however, that adverse publicity may have risked prejudicing a fair trial is no reason for not proceeding with the trial if the judge concludes that, with his assistance, it will be possible to have a fair trial.’ 2007 1CR App R 27.

There are other examples. I mention here only one other, namely Taylor and Taylor, the trial of two sisters for Murder, where convictions were quashed because of adverse publicity during trial which the Court of Appeal characterized as ‘unremitting, extensive, sensational, inaccurate and misleading’ [1994 98 Cr App R 361].

I am being provocative, up to a point. Of course I do not suggest that the vast quantity of effective journalism in the aftermath of recent terrorist attacks would merit such a description. And let me be the first to recognize that we enjoy a criminal justice system which enshrines fundamental freedoms we must all uphold even in the face of terrorism, one of those freedoms of course being freedom of speech, Article 10. I have associated myself with the letter to the Times last week signed by the leaders of the legal professions as well as by Liberty and JUSTICE, which includes this: ‘Suggestions made before the general election, that human rights prevented the police fighting terrorism, are misguided. …Human rights exist to protect us all. Weakening human rights laws will not make us safer. Terrorists cannot take away our freedoms – and we must not do so ourselves’.

Do not report me as saying that fundamental freedoms need to go. That is not my message today. But may I go so far as to remind us all of the words of Article 10(2) of the ECHR: ‘The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime…’

I return to my real point here, which is that media coverage places so much emphasis on telling the story of the crime, that it often skews into telling the story of the criminals, and telling it far better than the criminals themselves. Of that we should all be wary.

Modern terrorism still includes radicalisers. Not all of this pernicious work is done anonymously and online, and we remember that UK citizens, particularly those who have left to join Daesh, use online communications to spread their murderous message.

Here I think of Junaid Hussain aka Abu Hussain al Britani, a long-range taskmaster, instructing those in this country to commit atrocities, now believed to be deceased in Syria.

And I think of Omar Ali Hussain, aka Abu Saeed al Britani, from High Wycombe, known online through his ‘Message of the Mujahid’, posing with an AK-47 and extolling violence against Prime Minister Cameron and the West, itself inspired by the so-called spokesman of so-called Islamic State, a man called Adnani whom it is said issued an IS fatwa in September 2014 ordering attacks in Europe by those unable to conduct hijrah or migration to muslim lands.

All of this is artifice, pure propaganda, latching on to a peaceful religion for criminal purposes. The tragedy is that it lodges in the vulnerable minds of some. It does so through the oxygen of publicity, which the media provides. Why do so? When crime is reported, all of the concentration is on what the criminal has done, not their rationale behind the action. But when terrorist crime is reported, I suggest far too much time is spent on ‘reasons why’, which by and large the criminals haven’t hung around to explain themselves because they have rightly perished whilst committing the crime.

In my view, we should all spend less time – in public through the media at least – trying to elucidate the dogma behind these terrible events, and should instead spend far more time seeing these criminals for what they clearly were, criminals or demons, evil doers of evil deeds. There really is no justification for an individual detonating a bomb inside a concert filled with thousands of children and teenagers. We should not waste time in public airing the dogma behind the demonic work of Abedi and his like. Of course, this remains the vital, urgent work of the security services and Police, whose job it is to unpick the dogma, to unearth the radicalisers in person or online, and to stop the next criminal planning an attack, and the next and the next. But by publicising and analysing the dogma for all to see, you are perpetuating the myth that these crimes are for a religious reason, or still worse that they have a justification.

Along with everyone else, I woke this morning to the news of what happened near Finsbury Park Mosque around midnight. Any loss of life or injury is a matter of the deepest regret, and my thoughts are with all who are affected by this incident.

There is a difference between this incident and the three which preceded it, namely Westminster Bridge, Manchester Arena and London Bridge. The difference is NOT between crime and terrorism, but between dead attackers who cannot stand trial as opposed to one who was taken into custody so we all await a charging decision and any trial thereafter.

There is a need for ‘avoiding a substantial risk of prejudice to the administration of justice.. in any proceedings..pending or imminent’ – in the words of section 4(2) of the Contempt of Court Act 1981. For this reason the media and all other commentators will have to exercise care in how the Finsbury Park incident is reported, today and in future.

However, as has already been made clear by the Metropolitan Police and by the Home Secretary, this incident is being investigated by the Counter Terrorism Command, and rightly so. If evidence proves that what happened last night amounted to the ‘use or threat of action…designed to influence…a section of the public…for the purpose of advancing a political, religious, racial or ideological cause’ – in the words of section 1 of the Terrorism Act 2000, then that is terrorism.

Muslim worshippers leaving the Mosque after prayers during the holy month of Ramadan are unquestionably part of the British public. I was privileged to join over one thousand worshippers in one of the largest Mosques in Manchester ten days ago, and I hope to do the same at Finsbury Park Mosque in future, if I may. Early reports from the scene last night and this morning suggest that considerable bravery came into play in the immediate aftermath of the incident, and I applaud those members of the Mosque community who acted with such restraint. If their actions lead to a full public trial at which all of the evidence of this crime is examined in court, we all owe our gratitude.

Meanwhile, for the reasons given above, I maintain my approach to all such incidents; I leave it for politicians and the Police to make immediate comment, and I will add anything I can properly say after a little more time has elapsed.

My thoughts are with those currently in hospital.

In response to my post earlier this evening, I have been asked for the text of my Commentary published in the Sunday Telegraph last weekend, on 28th May. I repeat it below, with an apology for the fact that – although I was careful to refer to JTAC’s reasoning on two occasions – it is strictly incorrect to say that the Prime Minister sets the national threat level, as that it the responsibility of JTAC itself.

This week, for the first time in a decade, it proved necessary to elevate the national threat level from severe to critical, meaning that an attack was thought to be imminent.
 This heavy decision was taken by the Prime Minister and others in the immediate aftermath of the atrocity at the Manchester Arena on Monday.
A comparison can be drawn with the position after the Westminster Bridge attack in March. At the time, the Joint Terrorism Analysis Centre (JTAC) rightly assessed that Khalid Masood had acted alone and it was not therefore necessary to go to critical.
This week, however, JTAC correctly reasoned that the comparative sophistication of the Manchester attack dictated that the authorities take extreme care and deploy every available resource to discover whether this week’s killer also acted alone.
Whilst we all mourn the cruel loss of life in Manchester, including such young lives, perhaps this is a moment to reflect on the legislation available to the police and security services. In speeches and seminars, I commended the fact that there were few calls for additional terror laws in light of the Westminster attack. I believe the same applies to Manchester.
In fact, many of the laws which most accurately deal with these attacks are not “terror laws” as such. I have pointed out that Masood, had he survived, would have been charged with five counts of murder and many more of attempted murder. The same applies, though in tragically higher numbers, to the individual who detonated the bomb in Manchester, together with anyone proved to have worked with him to that terrible end.
Does it follow that criminals such as these, when charged with murder, are not to be regarded as terrorists?
Not at all. The unlawful and intentional taking of another life is the most serious crime of them all. We do not need to create a special category of statutory terrorism offence in order to mark out this heinous crime.
Next, the appalling loss of life in Manchester was caused by a bomb. So how do prosecutors charge any person found to be involved with the bomber?
The answer lies within the Explosive Substances Act 1883, an Act of Parliament passed 130 years before so-called Islamic State of Iraq and the Levant (which has claimed responsibility for the Manchester attack) was formed. Are the offences of the late Victorian era still fit for purpose? They are in my book.
Does that mean that we fail to charge terrorists with terrorism offences? Not at all. I see no need to create more statutory offences if we already have what we need.
Parliament has added an abundance of modern provisions, all of which I review directly, under the Terrorism Acts 2000 and 2006, the Terrorism Prevention Investigation Measures Act 2011 and the Terrorist Asset Freezing Act 2010. In my view, we do not lack for law in this country. Those who keep us safe, including the contingent of armed personnel we saw on our streets this week, need resources – rather than yet more law – to do the job.
The same applies to those who conduct urgent criminal investigations such as the one necessitated by the Manchester attack. These are policy and financial considerations, beyond my remit. Whilst all of that work is done, as it must be done, current legislation both old and new is ready to provide legal remedies in the name of all who spend this weekend in sorrow and in solidarity with the people of Manchester.

Reports

Evidence

A House of Commons Public Bill Committee has been set up in order to give detailed scrutiny to the Investigatory Powers Bill that was unveiled on 1 March 2016 and given its second reading on 15 March.  A good deal of written evidence to that committee was published last week.

I was the first witness to be examined by the Public Bill Committee, on 24 March 2016.  A  transcript of my 25-minute evidence has been published on the Committee’s website, and most of it is captured on video.

Later on 24 March, I submitted written evidence to the Public Bill Committee in order to expand upon some of the points touched on in my oral evidence and to raise some new points.  That written evidence is published here for the first time. Read more…

Speeches

I leave the post of IRTL at the end of the month to make way for the very well-regarded Max Hill QC, who was interviewed yesterday in the Evening Standard.  My last public engagement in the role will be oral evidence given on Tuesday to Parliament’s Brexit Committee, on the theme of security cooperation and data-sharing, for its inquiry into the UK’s negotiating objectives  for withdrawal from the EU.

I had hoped and expected that my final report, on Deportation with Assurances, would have been published and laid before Parliament by now.  Hopefully this will be achieved within a few days.  Watch this space.

There have been quite a few retrospective pieces for media over the past few weeks: a selection is here.

Podcast of interview with Joshua Rozenberg for Law in Action, November 2016

Webcast interview with Sally Bundock for the International Bar Association, November 2016

Asian Network Big Debate, with Shazia Awan, Feb 2017

Opinion piece for the Evening Standard on Prevent, Feb 2017

Interview with Sam Macrory for Prospect, Feb 2017

Profile by Peter Oborne for Middle East Eye, Feb 2017

Peston on Sunday, Feb 2017 (clip)

Lecture to RUSI (with a historical element) on terrorism, cohesion and national security, Feb 2017

A fuller account of my views on the anti-terrorism laws that are the principal focus of my reporting function is in my last annual report, published in December 2016.