My appointment as Director of Public Prosecutions

I have been appointed as the next Director of Public Prosecutions, to take up office later this year. This will mean I have to step down as Independent Reviewer of Terrorism Legislation.

It has been a privilege to continue the work of my illustrious predecessors, conducting scrutiny and oversight of our terrorism legislation. From my background and long history in prosecuting terrorism trials, I have been lucky to enjoy the support and assistance of so many who have engaged with me since March 2017. I give special thanks to my Special Advisors Professor Clive Walker QC (Hon), Hashi Mohamed and Alyson Kilpatrick.

As I approach the end of  my work as Independent Reviewer later this year,  I will finalise my Annual Report on the operation of the four statutes. The Report is being provided to the Home Office this month, July, to enable the necessary checks to be carried out over the summer.

Any requests relating to my DPP appointment should be directed to the Crown Prosecution Service Press Office.

Features

I was pleased to receive the Government responses to my reports today. The first Response (cm 9704) dealt with my Annual Report on the Operation of the Terrorism Acts in 2016, which was published on 25th January this year, and the second Response (cm 9705) dealt with my Report on the use of terrorism legislation following the Westminster Bridge terrorist attack, which was published on 28th March.

I did not have prior sight of either Response, but offer the following first reaction to both:

The Government Response to the Annual Report on the operation of the Terrorism Acts in 2016

I thank the Home Secretary for his kind words in relation to my work as IRTL during ‘what can only be described as a particularly difficult and challenging year’, namely 2017.

Threat picture. Both my predecessor Lord Anderson and I, in reports we produced independently of each other, recommended that JTAC extend its remit to include assessing the threat from domestic extremism. I am pleased that the Government has accepted this recommendation, in particular because the threat we face from extreme right wing terrorism within the UK is considerable, and in my clear view it has grown in reaction to the terrorist atrocities on Westminster Bridge, London Bridge and at Manchester Arena last year. Terrorism takes many forms. Extreme right wing ideology breeds terrorism, and must be dealt with comprehensively.

Port and Border Controls

I am pleased that prospective revision of the existing Code of Practice may introduce greater certainty and accountability in the exercise of Schedule 7 powers, but disappointed that no threshold test is to be introduced. Had this recommendation been accepted, it would have created greater community confidence in the use of these exceptional powers. I hope and expect that my successor will maintain rigorous scrutiny and pressure in this area.

Arrest and Detention

I am pleased that the Government has responded positively and constructively to all of my recommendations in this regard.

Criminal Proceedings

I understand the Government’s reasoning in rejecting my proposal that certain existing terrorism offences have decreasing relevance since their passage into law one or two decades ago. However, this is part of a wider conversation about the absence of a need to resort to knee-jerk legislation in response to any outbreak of terrorist activity, for which please see my evidence to Parliament concerning the Counter Terrorism and Border Security Bill 2018. There remains an urgent need for my successor to continue this work in my absence.

The Government Response to the report on the use of terrorism legislation following the Westminster Bridge terrorist attack

My report was an attempt to introduce more information into the public domain than before, concerning a major terrorism investigation. I am grateful for the Home Secretary’s recognition that my work represented a ‘diligent and authoritative approach’.

Transporting TACT detainees

I am pleased to see the Government’s support for the principle that careful consideration should always be given to whether it is necessary to transport detainees large distances. My own engagement with CT policing before and after the publication of my Report suggests that my recommendation has been taken seriously.

Informing detainees of their rights at the earliest opportunity

I accept that it can be difficult to predict the necessary level of police resources during a dynamic investigation. However, TACT detainees exceptionally may be detained for up to 14 days without charge, far longer than ‘general crime’ detainees arrested under the Police and Criminal Evidence Act. Therefore thought and preparation must be applied to the special consequences of TACT detention, where recent history has shown that most of those detained are not in fact charged with any offence after further investigation. I welcome the revelation that the new TACT detention suite at Hammersmith has been purposely co-located with a non-TACT detention suite. This should allow interoperability between TACT and non-TACT custody staff, which I recall was a feature of the now closed detention suite at Paddington Green.

Religious questions during interviews

I accept that detailed religious questions can be necessary during some police interviews of terrorism suspects, but maintain that greater religious literacy by interview officers is necessary, as demonstrated by some of the simplistic questions posed during interviews with some of the Westminster Bridge suspects, where any answer to such questions was of little or no utility to the police investigation.

Separately to the Government Response, I am happy to report that my own engagement since the publication of my Report with those in CT policing responsible for training interview officers has been positive and constructive, and I am confident that religious literacy will improve if this engagement is followed through. I invite my successor to keep this topic under scrutiny.

Reconsideration of bail before charge for TACT detainees

I am not the first to make this recommendation, nor should I be the last. Whether taken during a terrorist investigation or one relating to general crime, any decision to release a suspect on bail can only be taken with great care. However, the exceptional statutory regime permitting pre-charge detention of up to 14 days in TACT cases, together with the 58% rise in arrests from 2016-2017, means that a wider and more diverse range of individuals are being taken into TACT custody. In maintaining the Government’s rejection of this recommendation, the Home Secretary’s commitment to reconsider in future is important and will I hope be followed up by my successor.

I shall now incorporate the Government Responses into my Annual Report for 2017, which was delivered to the Home Office in July and which I hope will be published before I must leave my post as IRTL next month. I shall repeat and may expand upon this first reaction in the final version of the 2017 Report.

I have been waiting for the Government to respond to my formal written reports; it has been eight months since publication of my Annual Report for 2016, and over five months since publication of my Report into the Westminster Bridge attack investigation. I was informed yesterday afternoon that the Government intends to publish both responses tomorrow, Thursday 13th September, and I welcome this.

I have also been told today that I may not see either report, or be told anything about the content, until publication. It is of course a feature of the role of Independent Reviewer of Terrorism Legislation that s/he holds the highest security classification and is afforded unfettered access to the most sensitive information and intelligence. This is why whenever the Government intends to publish draft legislation – including the Counter Terrorism and Border Security Bill in June, and the amendments tabled last week – they call me in for confidential meetings to discuss the content. I have never breached confidentiality, and everyone knows that my own reports are provided to the Home Office months in advance of publication so that they may be scrutinised for factual accuracy and to ensure that sensitive information is not released. This makes their decision not to share the responses with me odd, but I shall have to read and react to the Government responses to my own reports after they are released to the public.

All of this leads me to reinforce my call for the Government to get on with the urgent task of appointing the next Independent Reviewer. After all that we have been through during 2017, there has never been a more important time for robust and entirely independent scrutiny of our legislation, and for a national conversation about where we go next in maintaining the twin imperatives of national security and fundamental rights. Whatever you may think of my work since March 2017, I have been proud to follow in the footsteps of my predecessors who have served in an unbroken line over four decades. It is vital that a new and independent lawyer is found to carry on my work. I am willing to play any part in encouraging the right candidates to come forward, and I am in no doubt that there are independent self-employed barristers who are eminently suited to this work. The sooner this process is started, the better. The passage of the Counter Terrorism and Border security Bill 2018 through Parliament requires the assistance of an experienced lawyer who is entirely free from the machinery of Government.

Following the announcement in July that I am to become the DPP later this year, I was in early discussion with the Home Office about the need to appoint the next IRTL. With the Counter Terrorism and Border Security Bill 2018 making its way through Parliament, I am concerned lest there is a gap between Reviewers, particularly at this time. My concerns about many of the provisions in the new Bill have been clearly documented. Last week, the Government tabled some amendments to the Bill. I welcome some of the changes, but have serious and principled concerns about others. I shall write on this subject as soon as possible. Meanwhile, I attach my formal resignation letter to the Home Secretary here, but am sorry to note that there remains little sign of any competition to appoint the next IRTL. This is becoming urgent.

Reports

I was pleased to receive the Government responses to my reports today. The first Response (cm 9704) dealt with my Annual Report on the Operation of the Terrorism Acts in 2016, which was published on 25th January this year, and the second Response (cm 9705) dealt with my Report on the use of terrorism legislation following the Westminster Bridge terrorist attack, which was published on 28th March.

I did not have prior sight of either Response, but offer the following first reaction to both:

The Government Response to the Annual Report on the operation of the Terrorism Acts in 2016

I thank the Home Secretary for his kind words in relation to my work as IRTL during ‘what can only be described as a particularly difficult and challenging year’, namely 2017.

Threat picture. Both my predecessor Lord Anderson and I, in reports we produced independently of each other, recommended that JTAC extend its remit to include assessing the threat from domestic extremism. I am pleased that the Government has accepted this recommendation, in particular because the threat we face from extreme right wing terrorism within the UK is considerable, and in my clear view it has grown in reaction to the terrorist atrocities on Westminster Bridge, London Bridge and at Manchester Arena last year. Terrorism takes many forms. Extreme right wing ideology breeds terrorism, and must be dealt with comprehensively.

Port and Border Controls

I am pleased that prospective revision of the existing Code of Practice may introduce greater certainty and accountability in the exercise of Schedule 7 powers, but disappointed that no threshold test is to be introduced. Had this recommendation been accepted, it would have created greater community confidence in the use of these exceptional powers. I hope and expect that my successor will maintain rigorous scrutiny and pressure in this area.

Arrest and Detention

I am pleased that the Government has responded positively and constructively to all of my recommendations in this regard.

Criminal Proceedings

I understand the Government’s reasoning in rejecting my proposal that certain existing terrorism offences have decreasing relevance since their passage into law one or two decades ago. However, this is part of a wider conversation about the absence of a need to resort to knee-jerk legislation in response to any outbreak of terrorist activity, for which please see my evidence to Parliament concerning the Counter Terrorism and Border Security Bill 2018. There remains an urgent need for my successor to continue this work in my absence.

The Government Response to the report on the use of terrorism legislation following the Westminster Bridge terrorist attack

My report was an attempt to introduce more information into the public domain than before, concerning a major terrorism investigation. I am grateful for the Home Secretary’s recognition that my work represented a ‘diligent and authoritative approach’.

Transporting TACT detainees

I am pleased to see the Government’s support for the principle that careful consideration should always be given to whether it is necessary to transport detainees large distances. My own engagement with CT policing before and after the publication of my Report suggests that my recommendation has been taken seriously.

Informing detainees of their rights at the earliest opportunity

I accept that it can be difficult to predict the necessary level of police resources during a dynamic investigation. However, TACT detainees exceptionally may be detained for up to 14 days without charge, far longer than ‘general crime’ detainees arrested under the Police and Criminal Evidence Act. Therefore thought and preparation must be applied to the special consequences of TACT detention, where recent history has shown that most of those detained are not in fact charged with any offence after further investigation. I welcome the revelation that the new TACT detention suite at Hammersmith has been purposely co-located with a non-TACT detention suite. This should allow interoperability between TACT and non-TACT custody staff, which I recall was a feature of the now closed detention suite at Paddington Green.

Religious questions during interviews

I accept that detailed religious questions can be necessary during some police interviews of terrorism suspects, but maintain that greater religious literacy by interview officers is necessary, as demonstrated by some of the simplistic questions posed during interviews with some of the Westminster Bridge suspects, where any answer to such questions was of little or no utility to the police investigation.

Separately to the Government Response, I am happy to report that my own engagement since the publication of my Report with those in CT policing responsible for training interview officers has been positive and constructive, and I am confident that religious literacy will improve if this engagement is followed through. I invite my successor to keep this topic under scrutiny.

Reconsideration of bail before charge for TACT detainees

I am not the first to make this recommendation, nor should I be the last. Whether taken during a terrorist investigation or one relating to general crime, any decision to release a suspect on bail can only be taken with great care. However, the exceptional statutory regime permitting pre-charge detention of up to 14 days in TACT cases, together with the 58% rise in arrests from 2016-2017, means that a wider and more diverse range of individuals are being taken into TACT custody. In maintaining the Government’s rejection of this recommendation, the Home Secretary’s commitment to reconsider in future is important and will I hope be followed up by my successor.

I shall now incorporate the Government Responses into my Annual Report for 2017, which was delivered to the Home Office in July and which I hope will be published before I must leave my post as IRTL next month. I shall repeat and may expand upon this first reaction in the final version of the 2017 Report.

Evidence

COUNTER TERRORISM AND BORDER SECURITY BILL:  SUBMISSION IN RELATION TO CLAUSE 3

BY MAX HILL QC AND PROFESSOR CLIVE WALKER

This paper follows evidence given to the Bill Scrutiny Committee on 26th June 2018 by Max Hill QC, Independent Reviewer of Terrorism Legislation. Together with Professor Clive Walker QC (Hon), Senior Special Adviser to the Independent Reviewer,  the premise of this paper is to ask the question, if a new variant of section 58 is needed at all, what might that look like ?[1]

[1] This paper should be read in conjunction with the analysis already given in Professor Walker’s written submission to the Joint Committee on Human Rights.

Speeches

UNIVERSITY OF HERTFORSHIRE

SIR CHRISTOPHER STAUGHTON MEMORIAL LECTURE

14TH MARCH 2018.

MAX HILL Q.C.

INDEPENDENT REVIEWER OF TERRORISM LEGISLATION

REFLECTIONS ON MY FIRST YEAR AS INDEPENDENT REVIEWER

On Wednesday 22 March 2017, 52-year old British-born Khalid Masood drove a hired vehicle across Westminster Bridge in the direction of the Palace of Westminster. He mounted the pavement twice colliding with pedestrians and then a third time crashing into the east perimeter gates of the Palace of Westminster. Masood then exited the car and ran into the vehicle entrance gateway of the Palace of Westminster, Carriage Gates, where he attacked and fatally injured PC Keith Palmer using a knife. Masood was shot at the scene by armed police protection officers who were in Parliament at the time of the attack. The whole incident lasted approximately 82 seconds. The attack resulted in 29 people injured and 6 fatalities.

The UK, in fact England, last year suffered the worst combination of terrorist attacks for many years. Since March 22nd 2017, we have all lived through the pain of witnessing murderous attacks at Westminster Bridge, followed by those at Manchester Arena, and London Bridge followed by Borough Market. The attack outside Finsbury Park Mosque on 19th June marked the fourth in this short list of major terrorism events, and there was a serious attempted attack at Parsons Green on 15th September.

I became Independent Reviewer of Terrorism Legislation on 1st March 2017. Just in time to witness the horror that unfolded on Westminster Bridge exactly three weeks later. My task is to annually review our terrorism legislation, essentially the Terrorism Acts 2000 and 2006, together with the Terrorism Prevention and Investigation Measures (TPIM) Act 2011 and the Terrorist Asset Freezing Act (TAFA) 2010. My first annual report into the operation of the Terrorism Acts in 2016 was delivered to the Home Office in November 2017 and published in January 2018. That report does not cover the events of 2017 which will be the focus of the next Annual Report. Meanwhile, my second report addresses the police investigation which followed the Westminster Bridge attack; the operation name of the investigation was Classific, and it encompassed the arrest of 12 people, who were detained for between 1 and 6 days, but then released without charge in every case. Having presented my report to the Home Office a month ago, it is my hope that it will be published in Parliament by the Home Secretary in time for the first anniversary of the Westminster Bridge attack, on 22nd March next week. For the time being, courtesy to Parliament requires that I maintain silence as to the detail of the report, but I can tell you that I have attempted to provide an insight into the hour by hour progress of the investigation, covering every arrest and what then happened to each of the 12 persons who were detained and ultimately released. I can also tell you that in my view this was an efficient and timely investigation, involving the appropriate use of statutory powers by the police. Just because nobody was charged, that does not mean that the police acted improperly. On the contrary, a thorough and speedy investigation was needed, arriving at the conclusion that the terrorist Masood acted alone on that day.

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