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Reflections on my time as Independent Reviewer

This was my final week in office as Independent Reviewer of Terrorism Legislation.

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 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, see here. My second report, here, addressed 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.

The Government Response to the Annual Report on the operation of the Terrorism Acts in 2016 and The Government Response to the report on the use of terrorism legislation following the Westminster Bridge terrorist attack were both published on 13th September 2018. I reacted to both here, and in my Annual Report 2017.

My Annual Report on the operation of the Terrorism Acts in 2017 was presented to Parliament this week, see here. This is my final report as Independent Reviewer and included a review of two of the major terrorism investigations this year, the Manchester Arena and London Bridge attacks.

My Annual Report 2017 also covered other key areas of developments:

  • the passage of the Sanctions and Money Laundering Bill through Parliament, on which I also gave evidence to the Joint Committee of Human Rights in January 2018, here.
  • the re-launch of the Government Counter Terrorism strategy (known as CONTEST), presented by the Home Secretary on 4th June.
  • the new Counter-Terrorism and Border Security Bill 2018, which is making its way through Parliamentary scrutiny. Additionally, I gave evidence to the JCHR on 20th June 2018, here. I also gave evidence to the Bill Committee on 26th June 2018, here. Subsequently, together with my Senior Special Advisor Professor Clive Walker QC (Hon), written submissions were provided to the Bill Committee, here. Finally, I made additional comments on the amendments tabled by the Government in September 2018 here.

Since taking up post in March 2017, I have travelled across the country, including Northern Ireland, in order to meet with as many people as possible, with the sole purpose of hearing the views of all on the operation and impact of our legislation. The office of IRTL is an open channel for any person or group with relevant information or views. I add only this for the sake of clarity; engagement does not equate to endorsement.

I have tried to react, where possible and appropriate, to key public discussion points in my area:

  • the role of the media in portraying modern terrorism, here.
  • responding to terrorists’ use of social media, here.
  • returning foreign fighters and extreme material online, here.

I maintained a Twitter account, here, throughout my time as Independent Reviewer allowing me to reach an audience of almost 3,000. In March this year, I received messages concerning the trial of Mr Daniel Creagh and I resolved to look into the circumstances of this case. At around the same time, I also resolved to enquire into the circumstances in which Ms Lauren Southern was detained whilst attempting to enter the UK, also in March this year. I completed both reviews, here.

Additionally, I gave a number of public lectures, including to the Criminal Bar Association in September 2017, here, and the Tom Sargant Memorial Lecture for JUSTICE in October 2017, here. I reflected on my first year as Independent Reviewer in the Sir Christopher Staughton Memorial Lecture at the University of Hertfordshire in March 2018, here. My final public speech came at the National Security Summit in October 2018, here.

Any errors or shortcomings in my work as Independent Reviewer are mine and mine alone. However, most of the successes during my time should be credited to Professor Clive Walker, Senior Special Advisor, Alyson Kilpatrick and Hashi Mohamed, Special Advisors, and Fatima Jichi, my Legal Assistant. To them all, and to everyone who has supported me through 20 months of hard but enjoyable work, I say thank you and farewell.

I will take up office as Director of Public Prosecutions on 1 November. Any requests relating to my DPP appointment and work should be directed to the Crown Prosecution Service Press Office.

MAX HILL Q.C.

OCTOBER 2018

The Terrorism Acts in 2017 (October 2018)

My Annual Report on the operation of the Terrorism Acts in 2017 has been presented to Parliament today. It can be accessed here. This is my final annual report as Independent Reviewer and so I have sought to cover all the statutes I review, namely 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 report addresses the following:
Definition of terrorism
Threat picture
Major Terrorism Investigations in 2017
Proscribed organisations and executive orders
The Terrorism Asset Freezing Etc Act 2010
Stop and search
Port and border controls
Arrest and detention
Criminal proceedings

The question of state terrorism and its inclusion/exclusion from the section 1 of Terrorism Act 2000 definition is ‘work in progress’. I invited my Senior Special Adviser Clive Walker to consider the question, and to review the legal and academic research in this area. He has produced a comprehensive ‘Note on the definition of terrorism under the Terrorism Act 2000, section 1, in the light of the Salisbury incident’, which I have annexed to my Report. The content and any opinions expressed in the Note are Professor Walker’s, rather than mine, but I am grateful to him for his work and hope that it may fuel debate and indeed further consideration by my successor.

The Annual Report also includes an Executive Summary at the outset and Conclusions and Recommendations at the end.

Had I been able to remain in post as Independent Reviewer, I would have wished to focus upon matters including the following, within the next annual report ‘The Terrorism Acts in 2018’:

  1. The practical implications of repealing Part 1 of TAFA 2010 in favour of a new terrorism sanctions regime under the Sanctions and Anti-Money Laundering Act 2018, on which I have given evidence in Parliament when it was a Bill.
  2. A fresh review of the definition of terrorism within section 1 of Terrorism Act 2000, particularly in light of the changing nature of the threat from international terrorism, including the Salisbury Novichok attack.
  3. A continued focus on the appropriate use of Schedule 7, Terrorism Act 2000, including in Northern Ireland.
  4. A review of the use of stop and search pursuant to section 47A of Terrorism 2000, which occurred in September 2017 for the first time since 2011.
  5. An investigation into any wider ramifications of Brexit in relation to the operation of the legislation which I have reviewed.

Of course, these matters will be for my successor, once identified, to consider and to confirm or reject. I am sorry that my departure for public service in another role prevents me from doing more as Independent Reviewer. I regret that there will be a gap in oversight until the next Reviewer is appointed, but I am confident that the Home Office will make that appointment as soon as possible.

National Security Summit talk

My final day in office will be this Friday 12 October. My departure means that I will be unable to offer any public comment after this week, so I was grateful for the opportunity to offer brief thoughts on some of the themes in my report at a talk I gave yesterday at the National Security Summit. A transcript of that talk can be found here.

Review into the cases of Mr Creagh and Ms Southern

In my last week as Independent Reviewer, I am trying to conclude any unfinished business. Some aspects of my work take weeks if not months to complete, but it can be difficult to find an opportunity to publish the outcome. With that in mind, those who follow me on Twitter may have noticed messages in March this year concerning the trial of Mr Daniel Creagh. I resolved to look into the circumstances of this case, which I have done with the assistance of his solicitor. At around the same time, I also resolved to enquire into the circumstances in which Ms Lauren Southern was detained whilst attempting to enter the UK, also in March this year. There was a suggestion that Ms Southern’s temporary detention may have been a misuse of police powers under Schedule 7 to the Terrorism Act 2000. I have completed my work in both cases. In Mr Creagh’s case, my short Note is attached here. In Ms Southern’s case, my Note is here.

COUNTER -TERRORISM AND BORDER SECURITY BILL 2018

COUNTER -TERRORISM AND BORDER SECURITY BILL 2018
REPORT AMENDMENTS TABLED BY THE GOVERNMENT IN SEPTEMBER 2018

ADDITIONAL COMMENTS BY MAX HILL Q.C. INDEPENDENT REVIEWER OF TERRORISM LEGISLATION, OCTOBER 2018

I gave evidence to the JCHR on 20th June 2018, here. I also gave evidence to the Bill Committee on 26th June 2018, here. Subsequently, together with my Senior Special Advisor Professor Clive Walker QC (Hon), written submissions were provided to the Bill Committee, here. I maintain my previous commentary on the Bill clauses, and restrict these additional comments to matters prompted by the Report Amendments subsequently tabled by the Government.

The Report Amendments came in two sections, here and here. The Government has also provided supplementary documents which include ECHR Memos and an Impact Assessment, here.

Entering or remaining in a designated area. By this amendment, the Secretary of State may designate any area outside the United Kingdom, when satisfied that it is necessary for the purpose of protecting members of the public from a risk of terrorism. It becomes an offence punishable with up to ten years’ imprisonment to ‘enter or remain in’ an area so designated. The offence is expressed not to be retrospective, however, a person who remains in an area for more than one month after designation is caught by the new offence. The accompanying Impact Assessment states ‘due to the instability of these conflict zones, it can be a difficult challenge to gather sufficient admissible evidence that individuals have been involved in specific terrorist-related activity, which limits the Government’s ability to prosecute such individuals should they return to the United Kingdom’. The Government’s intentions here are understandable. Despite some media reports to the contrary, I have always argued that any person who commits terrorism offences here or abroad must be prosecuted (see here for my clear views on this topic, last year). However, this proposed new offence brings a number of complications. Read more…

Government responses to my previous two 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. Read more…

Update – 12 September

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.

IRTL update

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.

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.

Submission in relation to Clause 3 of the Counter Terrorism & Border Security Bill 2018

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.

COUNTER-TERRORISM AND BORDER SECURITY BILL 2018

The CT Bill 2018 was introduced in Parliament by the Home Secretary on 6th June.

I offer a cautious welcome.

The Bill offers several Chapters, of which only Chapter 1 is entitled ‘Terrorist Offences’. There are six sections, of which one extends extra-territorial jurisdiction to a number of existing offences, and the other five propose some amendments to existing offences.

In other words, the CT Bill does not contain a single new terrorist offence. This despite the announcement of a CT strategy review by the Prime Minister on 4th June 2017, and the commitment in the Queen’s Speech later that month to create a new Bill.

Therefore, the Government has scoured the statute book as part of the CT strategy, inspecting all of the existing terrorist offences, and has not come up with a single new terrorist offence despite the atrocities in London and Manchester last year.

This is a good thing. Moreover, I am pleased to say that it makes good my declaration ever since appointment as IRTL in March last year, namely we have sufficient offences and do not need any more.

So what do the ‘terrorist offences’ in Chapter 1 of the new Bill entail? When the Home Secretary re-launched CONTEST with his speech on 4th June, he indicated that the new Bill amounted to ‘digital fixes’ to existing law. If I may say so, that is good shorthand for what Chapter 1 of the Bill contains. The headline offence is ‘obtaining or viewing material over the internet’ (clause 2 of Chapter 1). Not a new offence, but a clarification of the existing offence under section 58 of the Terrorism Act 2000. We have known that it was the Government’s intention to attempt this clarification since the former Home Secretary’s Party Conference speech last autumn, to which I have responded in previous writings and lectures including the Tom Sargant Memorial lecture for JUSTICE, available here. This new clarification of the section 58 offence is difficult, in my view. Well intentioned, but difficult.

I look forward to saying more about this and the other terrorist offence provisions within Chapter 1 when the Parliamentary Bill Committee sits down to scrutinise the new Bill, probably later this month.