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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I committed  many schoolboy errors in the 1970s, during my time at the Royal Grammar School, Newcastle-upon-Tyne. I was a poor to middling scientist and mathematician (see my comments on encryption, below), an indifferent linguist, but a slightly better historian. I tried hard in all subjects, but have no doubt that many of my exam papers were strewn with errors great and small.

I thought those days were far behind me. Not so, according to the Sunday Times and their anonymous intelligence source in government. I asked the newspaper to reveal the identity of the  source, but they refused. Another schoolboy error. And along the way, according to the Sunday Times story, I lost my suffix QC, which took me 20 years to earn, but that’s life I guess.

In what I can only assume to be a ‘slow news weekend’, the end of the summer holidays for most of us has led to my recent interviews gaining considerable coverage, for which I am genuinely grateful.

The Evening Standard on Friday covered my views with the headline on page 6 ‘Tech giants must stop encrypted messages, says terror watchdog’. I didn’t say much that was worthy of the headline, but I did go so far as saying that it is worth having a debate about encryption, not to suggest that its use be suspended or stopped altogether, but to question whether there are technical solutions to the proliferation of extremist material online. There has been an interesting reaction on Twitter during the weekend, much of which has made for good reading. Let me make it clear, I defer to the experts in this area (middling scientist at school, I told you), but my words follow my speech at the Terrorism and Social Media Conference earlier in the summer, which I have just posted on this site this evening. Following that conference, I have engaged with at least one of the major tech companies and I look forward to learning more.

Also on Friday, the Independent picked up on a Press Association interview with me the previous day. The topic was a review of maximum sentences available in some of the terrorism offences already contained within our legislation. Regrettably, because I did not speak to the Independent at all this week, their journalists covered the interview with the headline ‘Terrorists’ families should be jailed if they fail to alert authorities, say’s Government’s top terror adviser’. This is misleading in two respects; firstly, I do not work for the government, and secondly I said nothing to the Press Association about locking up terrorists’ families. Whilst the relatives of those who commit serious terrorist offences  – whether so-called Islamist offences, or extreme-right wing, or any other species of terrorism – are not immune from the legislation, they are not the target of the law and certainly not what I had in mind when speaking to the Press Association.

Schoolboy or not, I was appointed in March this year to review our terrorism legislation. This is no small task, as it includes all terrorism offences and their sentencing provisions, as well as arrest and detention powers which permit solitary confinement in special police custody units for up to 14 days without charge, not to mention the widely-known Schedule 7 powers to stop, question and detain travellers at any point of entry to or exit from the UK. And these matters are all derived from the Terrorism Acts. My role also requires annual review of terrorist asset-freezing provisions within the eponymous statute, as well as all matters pertaining to the instantly recognisable acronym TPIM, which needs no further explanation.

I come to this task after 30 years of legal practice as a barrister, 15 of which have included prosecuting more terrorism trials than almost anyone else, with my best wishes and deep respect to the small handful of fellow QCs who have shared that burden. This means that I have cross-examined more individuals who have been convicted of serious terrorism offences than the Sunday Times’ confidential source has had birthday cakes.

Experience is no guarantee of wisdom, of course. Let me be the first to admit that I have been lucky, and that all of my terrorism trials have benefitted from the support and hard work of other lawyers around me, who have made me look good in court. The credit for any of my successes is as much theirs as mine. And that is the point, success only comes with hard work, from sharing thought and preparation with others, from checking and re-checking every fact, every shred of evidence.

And so, on my appointment as Independent Reviewer on 1st March this year I realised straight away that I was going to have to work long and hard if my review of our legislation was going to be worthwhile. I have spent six months, almost to the day, trying to do just that, taking soundings from far and wide and across the spectrum of legal issues which my role demands. I spend time meeting politicians and civil servants whose work bears any relevance to mine. I have been to Scotland and Northern Ireland, talking to police officers and members of the intelligence services just as I do in England and Wales. I go to terrorism custody suites to visit detainees themselves in order to review their conditions and treatment. And I go wherever necessary around the country, particularly in light of the awful  attacks we have all witnessed starting with the terrorist murders on Westminster Bridge on  22nd March. I have been extremely fortunate to have been permitted  (no, it is more than that, I have been warmly welcomed, to my surprise and gratitude) to spend time with communities directly affected by the atrocities of 2017, including the UK citizens of Libyan heritage who live in Manchester and worship in the mosque formerly attended by the terrorist murderer who caused his own ignoble death at Manchester Arena.

But my work is far from done. I have a very long way to go, if I am to fully understand the impact of our terrorism legislation on all segments of British society, and thereby to make a useful contribution to the utility and efficacy of that legislation. That is my job, so it has to be done properly or not at all.

Although you could be forgiven for thinking otherwise if you read the Sunday Times article – or even just the front-page headline – I don’t believe everything people say to me. I try to assess what I hear, and to use a measure of common sense. Because I am a vainglorious barrister, used to the sound of my own voice in court, I am arrogant enough to write that I wouldn’t have got to where I am today without discarding most of the bad arguments and promoting most of the good ones. But don’t believe me just because I make this boast. Beware the shadow of a schoolboy, emerging behind the lawyer’s robe.

Because you are ultimately the judge and jury in the courtroom I now occupy as Independent Reviewer. I don’t answer to anyone else. Although most of the media (here I honourably exempt the Sunday Times) still like to call me ‘the government’s watchdog’ or similar, I am not employed by the government, nor the Home Office, nor any other organisation. I remain self-employed, working from my room in barristers chambers (making what use I can of the QC moniker denied to me by the Sunday Times), and sometimes using a locked room at the Home Office which they kindly make available for confidential briefings. Because I have no official designation as politician or civil servant, I can assure you that I do not make the law, nor do I set the policy of government in counter-terrorism. Those who bear such burdens, including the Home Office of course, set their own parameters for whom they meet and in what circumstances. And, for all I know, they are right to be careful lest granting an audience to a ‘radical’ group will lend unwarranted legitimacy to that group.

But those rules do not apply to me. I cannot confer legitimacy on any person or group. I am just  a lawyer, working on my own and in the same room from which I run my practice at Red Lion Chambers. If you want to know, I have a small budget which allows me to employ part-time a law student as my Assistant, as well as to hold out three zero-hours contracts to two fellow barristers and a law professor, each of whom provide enormously valuable though very part-time help in my work. I count myself lucky to have these three talented people on speed dial. But that is it.

So when I am called naive for even agreeing to meet an organisation like Cage, you will be the judge of such an initiative once I offer my annual report to Parliament (my reports go to the Home Secretary, who has a duty to table them in Parliament, something I cannot do being a member of neither House of Parliament), later this year. To me, offering to hold such a meeting is nothing more than considering the issues within our terrorism legislation from all sides. To me, I am doing nothing more than what every barrister does on a daily basis, which is to consider the evidence and sort out the bad from the good. And as the media know and you may recall, I am doing nothing more than my  predecessor David Anderson QC, who was not shy of taking on all-comers during his distinguished 6-year tenure as Independent Reviewer, including  Abu Qatada and even Cage itself.

But all of this may be bluster. I may still be the northern grammar school boy of the 1970s, getting it wrong by even contemplating meeting certain groups and individuals, throwing common sense to the wind along with 30 years’ experience as a barrister and more terrorism trials to my name than all of my predecessors put together.

It is hard to know, isn’t it? Could you bear to wait and see whether I am really the naive schoolboy as claimed? Or should I go straight into detention, perhaps with 100 lines to write out before any consideration of release: ‘I will not do my job. I am not independent. I am a lackey of government, of the Home Office, and I will only do what they do, and when they tell me.’ Well, for what it is worth, I have not received a word of criticism from the Home Office about how I do my job. Whilst the Sunday Times’ source can say whatever he or she likes, I have thus far received nothing but access all areas and an appreciation of my independence from all whom I meet at the Home Office. Long may that continue.

Funnily enough, I think I can remember (being a slightly better historian at school, as I told you at the beginning) that I managed to get through my school years without ever writing out lines. Never too late to start, I suppose.

In response to media coverage this weekend, I realise that I failed to load onto this site the full content of my speech on terrorism and social media, delivered to a conference at Swansea University on 28th June. My apologies. It follows:

 

There can be no doubt  that social media plays a pivotal role in communication between those intent on terrorism, just as it is pivotal in the daily lives of most of us as we go about our lawful business. In that simple truth lies the dilemma which we face at this Conference. We all deplore the outbreaks of terrorist violence we have witnessed in four vicious attacks since March 22nd this year, the most recent of the four emanating from Wales, though there is little more we can say now that the case has been charged and is before the courts. We should remember, however, that five terrorist plots were successfully disrupted by the Police and security services during the same period, the last three months. And we all come together with renewed determination to face down the menace of modern terrorism. Where these awful crimes are facilitated by the use of social media, we want to close down the criminals ability to communicate. And yet, we must recognise that policing the internet, and controlling social media comes at a very high price if it interferes with the freedom of communication which every citizen enjoys, and which is also enshrined in Article 10 of the European Convention on Human Rights.

Let us go straight to the limiting provision within Article 10, remembering that freedom of expression is not a fundamental right. Article 10(2) reads: 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’ etc etc.

So, have we reached the point at which we need to legislate for further interference with Article 10?

Before we can answer that question, we should remember that statute already interferes with Article 10, where necessary and proportionate. Consider section 2 of the Terrorism Act 2006, the criminal offence of disseminating terrorist publications.

What is a terrorist publication? It is defined in section 2(3), ‘if matter contained is likely..(a) to be understood as a direct or indirect encouragement or other inducement  to the commission, preparation or instigation of acts of terrorism (CPI), or (b) to be (so) useful, and to be understood by some or all as …wholly or mainly for the purpose of being so useful…

A person commits the offence by (section 2(2)) distributing or circulating such a publication, which includes  (section 2(2)(e)) transmitting the contents electronically, and when he or she (section 2(1)(b and c)) intends an effect of the conduct to be a direct or indirect encouragement for CPI, or when he intends to provide assistance in CPI.

The section 2 offence works in practice. One of the significant decided cases in this area (which I prosecuted myself) was R v Faraz, tried at Kingston Crown Court in 2011 and reviewed on appeal in [2013] 1 CrAppR 29. At trial, section 2 was ‘read down’ for compatibility with Article 10 in a number of ways, for example by requiring that the words ‘acts of terrorism’ in section 2 must mean criminal offences, not any lesser form of conduct. There were a number of further revisions, made by Calvert-Smith J after submissions which had considered a comparative analysis from many legal jurisdictions. The Court of Appeal later held that it was not arguable that a publication that to the knowledge of the defendant carried a real risk that it would be understood by a significant number of readers as encouraging terrorist offences was entitled to exemption because of Article 10, just because it expressed political or religious views.

Therefore, through laws already on the statute book, it is both possible and compatible with ECHR for investigators and prosecutors to reach into social media and the internet for material  which can properly be brought before the court.

The question for us is how much further if at all should legislation go into this arena?

A quick review of the social media imprint within recent criminal prosecutions might be helpful. I therefore looked through all of the successful terrorism prosecutions brought by the CPS last year, 2016. Allow me to discuss the relevant aspects of some of those cases now, because they indicate both how prosecutors are currently dealing with social media as evidence, and they set the context for any consideration of where we go from here.

So, a sentence or two on some of the cases from 2016.

Tarik Hassan and Suheib Majeed, the latter a physics undergraduate at Kings College London, used a variety of secure and encrypted systems to communicate with each other (Hassane was studying in Khartoum) concerning their plot to carry out terrorist murders in London using a silenced firearm. The evidence included online reconnaissance of a police station and Territorial Army barracks. Charged with conspiracy to murder and preparation of terrorist acts under section 5 of the Terrorism Act 2006.

Tareena Shakil, 26 and the mother of an 18 month old son, became prolific on social media in support of Daesh. Her messages included an exhortation ‘to take to arms and not the keyboard’. She took her son to Turkey and on to Raqqa in Syria, joining Daesh and using the internet both to maintain contact with other family members and to glorify Daesh. Charged with encouraging terrorism under section 1 of the Terrorism Act 2006 and belonging to a proscribed organisation namely ISIS under section 11 of the 2000 Act.

Ayman Shaukat engaged in coded communications with men whom he assisted in travelling to Syria. Shaukat drove a co-defendant Alex Nash to the airport and facilitated his desire to join ISIL. Charged with preparation, the section 5 2006 Act offence.

Forhad Rahman assisted a man called Aseel Muthana to leave the UK in order to fight in Syria; the two men first met via social media. Muthana and another made a video on a hill near Cardiff in possession of an imitation firearm, referring to ‘the Islamic State in Cardiff and Iraq and Sham’. Their co-defendant Kaleem Ulhaq used social media to send money to another whom he believed to be fighting in Syria. Charged with preparation under section 5 of the 2006 Act, and in respect of the funding arrangement under section 17 of the 2000 Act.

Junead and Shazib Khan (whom I prosecuted) were inspired and instructed online, firstly on how to get into so-called Islamic State, and secondly in the case of Junead Khan how to access the addresses of soldiers in the UK and how to attack USAF bases in Norfolk. Online Kik conversations spoke of aspirations to seek shahada or martyrdom, together with explicit instructions for ‘mujahid style’ knife and/or pipe bomb attacks. Both men were charged with section 5 of the 2006 Act preparation, and Junead Khan received a life sentence.

Zafreen Khadam was investigated after complaints made to the police that a Twitter account was being used as a tool to post IS propaganda and to encourage others to join IS and instigate acts of violence. This defendant was found to have opened 14 Twitter accounts  in one month in the spring of 2015. Extreme content was posted, including a web based IS document encouraging the online dissemination of IS literature in order to support its cause. The document was viewed 1464 times by the time it was captured by the Police as evidence. In addition, the defendant used WhatsApp to send material including execution videos. Charged with ten counts of section 2 dissemination.

Mohammed Alam used Paltalk messenger to send links to an ISIS video. Charged with section 2 dissemination on the basis that he was reckless as to whether it would encourage CPI of terrorism.

Mohammed Ameen sent 8000 tweets over 7 months using 16 different Twitter accounts and using 42 different names, expressing support for Daesh. Charged with offences of encouragement under section 1 of the 2006 Act, one count of section 2 dissemination, and one of inviting support for a proscribed organisation under section 12 of the 2000 Act. The judge in passing sentence  (five years’ imprisonment) noted that the offending was aggravated by the explicit and intentional nature of the encouragement and by the persistence with which it was pursued.

Naseer Taj used Twitter and WhatsApp, seeking advice on where to go in Syria to satisfy his aim to become a suicide bomber. Charged with section 5 preparation, possession of material under section 58 of the 2000 Act and an offence under section 4 of  the Identity Documents Act 2010.

Rebecca Poole used social media to express her desire to marry a jihadi warrior, to travel to Syria to live under ISIS, and to become a suicide bomber. She was later found unfit to plead, but to have been in possession of material under section 58 of the 2000 Act, and sentenced to a restricted hospital order.

Mohammed Uddin travelled to Syria via Turkey, stayed for five weeks then left under pressure to return to his wife in the UK but expressing disappointment with the slowness of progress in Syrian training camps, and his social media messaging indicated an intention to return to Syria in the future. Charged with section 5 preparation.

Mr and Mrs Golamully pleaded guilty to terrorist funding under section 15 of the 2000 Act, having sent money to their nephew who had travelled from Mauritius to Syria to fight for ISIS. They used WhatsApp messaging, and sent money via Western Union.

Abdul Hamid both received and posted Daesh propaganda using his Facebook page. Police investigation revealed that a redacted version of the video was available via BBC and other media outlets, but that the defendant had repeatedly posted the unreacted full version, latterly with a message reading ‘this video is strictly for education purposes only’. Charged with section 2 dissemination.

Aras Hamid, Shivan Zangana and Ahmed Ismail were variously charged with section 5 preparation, identity document offences under the 2010 Act, and failing to disclose information about acts of terrorism under section 38B(1)(b) of the 2000 Act. They used phone and social media contact to discuss and arrange  travel to join ISIS, discussing the planned travel with a facilitator abroad.

So that is the range and frequency of offending which sets the context for our discussion, and that is last year; we are yet to come to grips with a full review of the atrocities of 2017.

I have left out, for present purposes, an analysis of sentences passed in these cases, because that is beyond the confines of this conference, though I predict that the available maximum sentences for several of the main statutory offences will feature in the ongoing government review of counter extremism strategy, and some sentencing powers may rise. That said, it does not follow that the review will necessarily lead to the identification of new offences not currently on the statute book. Perhaps that is a discussion for another day, another conference.

Returning specifically to social media and its prevalence in current terrorism offending, it is clear how important this continues to be to investigators and commentators alike.  In some of the cases I have analysed briefly above, it is quite possible to observe single days of online communication between defendants and complicit third parties, where those communications range between WhatsApp, Twitter, Telegram, Viber, Kik and more, according to the perception of the participants as to the relative security and encryption levels of these various modern platforms. To catch them at it, we have to keep up with their technical knowledge and the march of progress made by the internet and other communication service providers.

So where do we go next? It seems to me, thinking about the range of statutes in use by prosecutors as shown by recent cases, that we do not lack for legal powers to bring these cases to court. We do need to encourage investigators and prosecutors to use the full range of current powers at their disposal; which is not to say that they are ignorant of what Parliament has provided, but we do need to see the use of financial, identification, fraud, firearms, public order, offences against the person, and conspiracy offences being added to the indictment, in order to capture the full range of criminality represented by future cases. There should be nowhere safe for terrorists to hide. Terrorism-related cases charged in the year ended December 2016 totalled the use of 56 Terrorism Act offences, and 62 non-Terrorism Act offences, in other words where other criminal statutes were used. More of this is the way forward.

I am on record, from when I first came into post as Independent Reviewer in March this year, saying that in general we don’t need more terrorism offences, and there may be examples of redundant terrorism offences which time has proved are not as necessary as Parliament thought. Interestingly, training for terrorism under sections 6 and 8 of the 2006 Act  was not charged at all in 2015 or 2016. Inciting terrorism overseas was charged once in the same two-year period. Possession of articles for terrorist purposes under section 57 of the 2000 Act was charged once in 2015 and not at all in 2016. Some revision and trimming of the current legislation may yet be possible, and that would be a good thing.

But I cannot say with certainty whether the ongoing government review will throw up an example or two that legislators have not yet covered. Maybe that will emerge, and it if so it will be my job to take a hard look. It would be foolish to discount the possibility of one or more new offences for a new age, though I am yet to find any.

Which brings us to the big question, whether the investigation and prosecution of  terrorists’ use of social media needs specific new laws.

I spent time analysing recent past cases as a way of showing how much is already possible, utilising the laws we already have. To go further, would we risk unenforceable infringements on ECHR rights, and/or would we push the current abundance of evidence proving terrorist activity online to go offline or underground, into the dark chambers of TOR the onion router, impenetrable places within the dark web from which clear evidence rarely emerges, and where the placement of a robust counter-narrative to terrorism is hard to effect and harder to gauge?

This is uncertain territory. Driving material, however offensive, from open availability into underground spaces online would be counter-productive if would-be terrorists could still access it. And once this material goes underground, it is harder for law enforcement to detect and much harder for good people to argue against it, to show how wrong the radical propaganda really is.

Last week, I made a speech at an event hosted by the Oxford Media Network, in which I said this to a large audience including some of our most distinguished security correspondents:

‘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’.

I stand by those words. When criminals kill and are killed in the act, we should not give them the media platform they may have craved in life but are not entitled to receive in death. I was amongst many who were very pleased to see leading Mosques and British Islamic communities who refused to say funerary prayers for those responsible for the attacks in London and Manchester.

But that does not mean to say that we or the media need be silent when we see the vile propaganda with which  those who are yet to commit attacks  drench social media platforms. There is a place for a strong counter-narrative to be put in place to meet the online radicalisation efforts of these criminals. So to those of you who speak on this subject, and who have the technical expertise to support an online counter-narrative, I applaud your thinking and your efforts. To the rest of us, the message is do not suffer in silence, speak up, speak up from wherever you are within law-abiding, multicultural British life, and do whatever you can to reject the messages of hate we see online. As some of the speakers at this conference have said already, the omnipresence of social media provides a great opportunity to meet the evils of terrorism, to take the opportunity to prove them wrong. Doing that is far better in my view than spending too much time taking the actions of suicide bombers and telling their story for them. Criminals do not speak for us, we must find our own voice and set the record straight.

As Independent Reviewer for just three months thus far, I have made it my business to travel around the country, seeking out Muslim communities in particular because they have been badly affected by all four of the terrorist attacks this year; indirectly as it were at Westminster, Manchester and London Bridge, but directly at Finsbury Park Mosque. And so, I have been to Finsbury Park Mosque, I have spent time with the Libyan community at a mosque and elsewhere in Manchester, and I have sat with community representatives from Mosque chairmen to youth workers in Leicester and Bradford. They offer real insight into the impact of our terrorism legislation upon their communities, and they all say one thing that is the same, which I paraphrase as ‘nobody really speaks for us, though many claim to represent us’ The communities I have visited all detest terrorism, they have powerful counter-narratives to terrorism, and they must be part of the answer online and offline in dealing with the extreme propaganda which we are contemplating today.

It is beyond doubt that social media has played a significant role in the planning and perpetration of terrorist attacks both here and abroad. My digest of cases from last year makes that point. Beyond the need, and the opportunity for a counter-narrative, should we be taking the chance to control social media and the tech companies who support it? In Germany we heard recently of the suggestion that heavy financial penalties should be imposed on companies who fail to take down extreme content. Discussions between our Prime Minister and President Macron in France suggest that there is a top table conversation in which solutions are being sought, there is an element of tough-talking, and tech companies are not immune from censure. And we read each week of high-level meetings between COOs and even CEOs of the internets biggest players.

Much of this is both necessary and valuable. I firmly believe that tech companies should strain every muscle to stem the flow of extreme material online. I have sat next to Metropolitan Police specialist officers who spend every day searching the net to find extreme material, and who then systematically apply hash values and other algorithms to identify each and every posting of that material with a view to writing to every web host requesting the take down of that material. It is laborious work, and it is important. There must be ever greater liaison and cooperation between law enforcement and tech companies.

But I struggle to see how it would help with this battle, if our Parliament were to criminalise tech company bosses who ‘don’t do enough’ . How do we measure ‘enough’? What is the appropriate sanction? We do not live in China, where the internet simply goes dark for millions when government so decides. Our democratic society cannot be treated that way. People have to be regarded as grown ups, entitled to every freedom provided for in a mature democracy, but working together to reduce the menace and the prevalence of terrorism and terrorists, those who would do us all indiscriminate harm.

So there is a need to do more, and tech companies must realise if they do not already that they have to be part of the solution here. There must be a coming together on a corporate level as well as amongst the wider population. Engagement is the answer. To my mind, companies who make eye-watering sums of money from our everyday chatter need to be brought firmly onside, they do not need to be forced offside by the application of criminal statutory offences with which to beat them, with the inevitable side-product of defeating the freedom which the net and social media platforms has opened up for the enjoyment and better understanding of us all about the world in which we live.

I finish where I started, as a lawyer not a politician, nor civil servant, and certainly not a regulator of social media nor a technocrat who understands the algorithms by which these communications platforms operate. Can we legislate to rid ourselves of online terrorism? My answer is that Parliament has already done so in meaningful ways including such offences as the dissemination offence under section 2 of the  2006 Act. We lawyers should look hard into such areas, to see whether any amendments might hone these offences given recent technological advances. We should also look to see whether sentencing provisions in 2017 are apt for our world, for example where Parliament drew a line in 2000, and where 17 years is a long time in tech terms. But apart from that, further legislation does not strike me as the answer. Criminalisation, and thereby alienation of tech companies who are there to serve us and to help us – albeit for colossal financial reward on their part – that cannot be the answer.

So no, or very little new legislation, as it seems to me.

That leaves investigation and prosecution, to complete my answer to the title of my talk. Both are vital. Both are working well, as last year’s cases show and I await to see the picture from this year.  From my long experience of terrorism trials, it is the communications schedule which forms the backbone of almost every new trial. Where communication used to be by voice calls and SMS messages, now that is augmented by online messaging, much but not all from end-to-end encrypted platforms including WhatsApp. We need the assistance of tech companies to ensure that the comms schedules in trials from this year and next year incorporate every such platform used by these criminals. My technical knowledge runs out very quickly at this point. Many of you have important and creative solutions to offer, so I am here to learn.

And I finish if I may, in the technical arena which I know least but am willing to learn. Is quantum computing part of the answer? I first heard the term only recently. Could it hold the answer to breaking algorithms? What should we be doing towards the sharing of encryption keys? Can network providers enforce encryption and validation as precursors to content being published? And if these things are technically possible, by whom and when should this power be used? The future will be very interesting.

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.

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.