CBA OLD BAILEY LECTURE 19/9/17

MAX HILL QC INDEPENDENT REVIEWER OF TERRORISM LEGISLATION

Allow me to explain what it is to be the Independent Reviewer.  The UK has had Independent Reviewers of Terrorism for 40 years, born out of the need to watch what Parliament is up to when it enacts emergency legislation to deal with successive terrorism threats. We have long experience of terrorism in many forms, including but not limited to dissident republican activity in Northern Ireland and on the mainland, extreme right wing activity whether through Combat 18, the Racial Volunteer Force or the current phase from National Action, and of course  so-called Islamist terrorism, though I dislike that term because it presupposes a link between religion and action which is not always what it seems. We don’t call the IRA Catholic terrorists, and in my view we should not so-called Islamic State Islamist terrorists.

But I digress already.

We have four principal terrorism statutes in this jurisdiction, and it is my job to review the operation of all four on an annual basis. They are:

Terrorism Act 2000 and 2006

Terrorism Prevention and Investigation Measures Act 2010

Terrorist Asset Freezing Act 2011.

I mentioned jurisdiction, which we at the criminal Bar all recognise as England & Wales, though oddly the reach of these statutes covers Scotland and Northern Ireland, hence the role is correctly described as the UK Reviewer. Thus, a person suspected of terrorism related activity under section 41 of the Terrorism Act 2000, which is the main arrest provision, can be arrested using that power in Belfast or Glasgow as well as Cardiff and Loughborough. Equally, the provisions of Schedule 7 to the 2000 Act apply to all ports and borders around the UK, so Q & A and temporary detention of suspects under those provisions can happen anywhere. Therefore, I review the custody regime throughout the UK, and that means both the short and temporary ports detention under Schedule 7, as well as the pre-charge detention of up to 14 days under section 41. More on this later.

Pausing there, to this extent the work of the Independent Reviewer is a very 21st Century thing nowadays. All of the legislation I review has been enacted recently in fact under the Blair, Brown and Cameron governments. This fact leads me to say that we should not be lulled into thinking that our legislature has come up with remedies for terrorism only and for the first time this century. As all who act in terrorism trials know, Parliament has provided areas in this vital area last century, and the one before that. This is why, when the CPS ask for counsel’s advice on drawing Indictments in terrorism trials, the answers lie in common law and what we might call general crime statutes, more often that the four major terrorism statutes that I have mentioned. Thus, the killers of Fusilier Lee Rigby outside Woolwich Barracks in 2011 were tried and convicted for Murder under common law. And that is why the killer of Jo Cox MP in 2015 was also convicted and sentenced for Murder. We should be in no doubt that both of these appalling crimes were acts of terrorism, though as we shall see there are many who do not perceive it this way. Confusion reigns, to a degree.

But I am running ahead. Returning to the essentials of my role as IRTL, the work is underpinned by three central principles, without which it would not work an neither I nor my predecessors who have accepted the role. I have not invented these principles, they were identified by my predecessor David Anderson in one of his reports and I endorse all three:

First, the Independent Reviewer is entirely independent from the Government, from Ministries and from the Civil Service. You would think that much is obvious from the first word of my title, but to many it seems far from obvious. I am not complaining. I understand that for a white male, another white male, to be appointed from a background of terrorism prosecution, this comes as a sore temptation to many who find it easier to see me as a functionary of the establishment. So I have withstood outbreaks of criticism on social media, often from those with a vested interest in seeing me as dependent upon the Government, rather than independent. And I have tried to answer many concerned individuals and groups around the country, who are confused by the relevance and targeting of our legislation as they see it, and  who are sometimes prone to conspiracy theories which do not exist. And on occasions, not every week but on multiple occasions, I find that media reporting plays to the gallery by describing me as Number 10s adviser, the governments top terror adviser, the terror chief, etc. This evening, amongst fellow Bar and judiciary, I hope and expect that most of you are mystified by such positioning, and by such criticism. You and I know that we accept a brief from wherever and whomever. We do our professional best for the side that instructs us. It isn’t personal. It doesn’t mean that we take a partisan view on the application of the law, just a considered view on the law which applies to every citizen.

Second, the Independent Reviewer has unfettered access to security personnel and to sensitive information. This is entirely true. It is also why some have difficulty with the first principle, independence. I certainly find that my words, spoken and written since 1st March when I came into post, my words are seen by some as an insight into a secret world, and an insight into the policy of HMG. Well, sorry to disappoint but I do not take tea at Number 10 whilst plotting new anti-terror laws with the higher echelons of government. In fact, I have never been to Number 10, yet.

However, this second principle has worked out thus far. I have been to all of the Ministries whose work touches on the relevant legislation, for example HM Treasury in relation to the Asset Freezing Act, and of course the Home Office in relation to TPIMs and the Terrorism Acts, including the Office for Security and Counter Terrorism, OSCT, set up as a directorate within the Home Office during John Reid’s time as Home Secretary. And I go to all of the security and intelligence agencies that you would expect, including GCHQ, the Security Service or MI5 and the Secret Intelligence or MI6. So far so unsurprising, as many of you will have been to these places conducting disclosure reviews in CT-related casework. What I have found new and utterly fascinating, however, is the level of access from top to bottom which is afforded to the Independent Reviewer. Whilst I am alive to the possibility of a world identified memorably by Donald Rumsfeld a few years ago, a world in which there are ‘unknown unknowns’, I am yet to find any limit I can discern to the questions I ask or the places I wish to go. In this regard, I suggest that my previous career history at the Bar equips me well in knowing where I should look within Ministries and agencies, because I know what a terrorism investigation looks like from the perspective of a trial lawyer, so I have not found it so difficult to reverse engineer criminal cases in order to ask what I hope are all the right questions when I examine the agencies and the rest in uncovering their adherence to proper practice in applying our terrorism legislation.

That said, it will be in the eye of the beholder whether I hold either a biased view or fail to ask the right questions, so you can judge me as and when I produce my written reports. This brings me to the third principle underpinning the Independent Reviewer’s work; although my written reports are presented to the Home Secretary, the Minister is obliged to provide those reports to Parliament. That is an inescapable duty, albeit there is a delay from stage one to two; David Anderson’s final report, on Deportation with Assurances, went to the Minister in February this year but only made it to Parliament in the summer. A short delay is acceptable, for obvious reasons such as checking whether the report itself contains classified information. Long delays are harder to explain, and I live in hope that this will not happen to any of my reports. If it does, it diminishes the role of the Independent Reviewer, which neither I nor any of my predecessors wish to see on our watch.

This third principle, the obligation to lay reports before Parliament, leads me into the territory which is new for me but which is surely vital for the proper carrying out of this public appointment. If there is unfettered access to the machinery of UK PLC when it comes to my examining the inner workings of the intelligence services and the rest, there must also be unfettered access to all who can shed light on the impact of our terrorism legislation. Because in order to report on the operation of the statutes, we need to understand what impact these laws have around the country.

I said this is one part of the job which is new to me. It is the area in which I have tried to work hard, even hardest. My previous professional work at the Bar has included prosecuting Police officers for Murder and Misconduct; the killing of Azelle Rodney, tried here, and the death of Sean Rigg, tried at Southwark. Both trials placed police officers in the dock, and I prosecuted. I hope this provides evidence to some of the doubters, who saw me as a state prosecutor against the people. Perhaps I don’t need to dwell on this in front of you, because as I mentioned before we all know what professional practice entails. Therefore you will recognise that over many years I have defended in this building in almost as many serious cases as I have prosecuted.

Since 1st March though, I have regarded it as a priority that I engage with the wider impact of our legislation. I have regarded it as a given that I will be allowed to inspect the agencies and services including the Metropolitan Police Counter Terrorism Command who are on the prosecution side of the house. Therefore, I quickly embarked upon what for the want of a better phrase I might call community engagement work.

Let’s take a short cut to Cage at this point. We know who they are, up to a point. Former Guantanamo detainees including Moazzem Begg, now active in arguing against key elements of the governments counter-terrorism strategy, and their recent efforts have included hostility towards the Schedule 7 port-stop regime. Their public endorsement of UK citizen Mohamed Emwazi as a ‘beautiful young man’ has done them little good in most circles, because Emwazi is better known as ‘Jihadi John’, the most notorious of the so-called Islamic State Beatles, the not-so fab four most if not all of whom are now thankfully deceased.

Is it an error to meet with Cage, or other groups or individuals like that? I think not. I think that my duty of inquiry demands that I sometimes go to uncomfortable places. I have no problem with that. Holding a meeting is not the same as sharing a platform. And I can and do hold meetings with others whose views I do not accept. Back to the first word of my title, independence is all.

But Cage is merely a newsworthy example. I have travelled up and down the country, meeting with families whose homes have been searched by the Police in the wake of the recent attacks in London and Manchester. Families where one or more members, usually of the younger generation, have been arrested and taken into custody but usually later released without charge. More on that in a moment.

I have also met the son of the Imam at the largest Mosque in south Manchester, 20 years of age and he was on duty as a door supervisor at the Arena during the Ariane Grande concert. Lucky not to have been murdered therefore, and he is the son of the Imam.

I have also met the Chairman of a Mosque in Leicester who told me that his Mosque had long-prepared a visit by primary school children from outside of town on the day after the Westminster Bridge attack, therefore March 23rd. That morning the sole Muslim teacher at the school rang to say he was very sorry but the white parents of the children had decided they didn’t want their children visiting a Mosque.

And the same Mosque Committee told me that young Muslim professionals in their community were no longer willing to associate formally with the Mosque for fear of professional repercussions when it came to background checks during job applications.

Pausing there, what are witnessing in this country? Limiting ourselves to the snapshot I have just provided, we are seeing the rise of Islamophobia, the potential loss of young professionals – perhaps second generation migrants to this country  – from serving in the Mosque and cementing its role within the Muslim community of the 21st century. And we are seeing large numbers of individuals and families feeling first-hand the impact of our terrorism legislation because of the unprecedented levels of search and arrest operations in light of the recent attacks.

It is an unsettling picture. For more, I refer you to a non-governmental organisation called Forward Thinking, who took me into Muslim communities in Leicester, Bradford and Manchester, and whose report under their Building Bridges programme charts my progress during those visits.

Many of the problems I am seeing, and I am by no means alone in commentating upon these issues, reveal political and societal issues which are beyond my remit. The Prevent programme, being one of the four limbs of the overarching CONTEST strategy, is also beyond my remit. So I don’t want to make any more of all that this evening.

However, the impact of the operation of our terrorism legislation is strictly within remit, thus my observations on the wave of arrests and pre-charge detentions under section 41 Terrorism Act are relevant. This brings me to another aspect of the Independent Reviewer’s role. Since January this year, the IRTL became a member of the National Preventive Mechanism, a group of some 20 plus entities including the Chief Inspectors of Prisons and Police, charged with adherence to the European Directive to keep the conditions in which detained persons are held under close scrutiny.

What that means to me is that I see the pre-charge terrorism custody environment in all its aspects. Unlike ordinary police detention under PACE, the Terrorism Act regime as you know entails holding individuals in bespoke facilities, entirely separate from normal custody suites and in conditions of solitary confinement. For up to 14 days.

I was very relieved to discover that there is an Independent Custody Visitors Association, the ICVA. They train and run hundreds of volunteers throughout the UK, who conduct daily visits to Police custody suites; and they run a cadre of specially trained Terrorism Act volunteers who hold security clearance and who go to see Terrorism Act detained every day.

This is great resource, and I have latched on quickly. Since the end of March, I receive daily emails attaching scanned report forms from each of the terrorism suites which happen to be open, and I also receive emails notifying me of every Terrorism Act arrest, Warrant of Further Detention and/or charging decision or release without charge; remembering that the Terrorism Act custody powers do not include bail before charge, in contrast to the PACE regime.

Linking all of this back to what was revealed to me by families  within the Libyan Muslim community in Manchester and elsewhere, you might be surprised to hear that I have come across very little by way of complaint about the custody regime or the use of Terrorism Act powers by the Police in general.

If you will allow me to give a self-serving example, but a relevant one, when amongst the Libyan community in Manchester I was told by one community leader of his fears for a friend who had been arrested at Heathrow the previous day and whose health and treatment was an urgent preoccupation. Whilst the details of Terrorism Act detentions are not for public airing for obvious reasons, and even  the location of Terrorism Act suites is hidden, on this occasion in Manchester I thought it appropriate to tell the community leader that I had personally visited his friend in the custody suite some three hours earlier, and to his great surprise and relief I was able to confirm that this friend was being treated well and had no complaints about his conditions.

I don’t want to overdo this. Yes, there are examples – in fact only one which has reached be but nonetheless important – where families disrupted by police investigations do wish to complain about it. I have done my bit in facilitating a complaint in the case in question. It is important that grievances are aired and I hope resolved. The future of effective community policing demands nothing less.

However, I have found in general that even the detention of hundreds of suspects in the aftermath of major terrorist attacks should not cause concern or damage, always provided the statutory powers vested in the Police are appropriately used.

So may we turn to the immediate future of our terrorism legislation. My principal concern of course. This brings me to the ongoing government review of counter-terrorism strategy, a review foreshadowed by the Prime Minister in her ‘enough is enough’ speech on the steps of Number Ten on 4th June, the day after the London Bridge and Borough Market attack.

Terrorism legislation in the UK, to date, has been generated in reaction to major events and in haste. The Explosive Substances Act 1883 is one good example, passed by a late Victorian Parliament in record time and in relation to the events of the day in Ireland. The Terrorism Act 2006, passed again in quick time with steerage by Charles Clarke’s Home Office, is another good example which we all remember was in relation to the atrocity on 7/7 the previous year.

And the Prevention of Terrorism Acts late last century provide continuous examples of emergency legislation, intended to be in force only for one year at a time, but circumstances required annual renewal for a long period during the Irish Republican era prior to the 1998 Good Friday agreement.

Moving over the Channel for a moment, we have a prime example of what the French claim to be a continuing state of emergency ever since the Bataclan attack in Paris. The French decision is understandable, whom am I to say otherwise, but I believe it is  not correct. In fact it is corrosive to require a national population to live under a state of emergency for a long period of time.

In the UK, we know that the national threat level is assessed and maintained not by government, but by JTAC, the Joint Terrorism Analysis Centre. Their work is part reactive, part proactive, and their quarterly worldwide threat level assessments are fascinating. How they do it is not the subject of this lecture, nor am I the right person to explain. however, it is notable that the UK threat level only reached ‘emergency’ or Critical twice this year, namely for a period of approximately 48 hours very shortly after the Manchester Arena attack, and then again this weekend after the Parsons Green incident. The first was a reaction to the newly-commenced investigation led by Greater Manchester Police, and the move upwards from Severe to Critical was justified because in the earliest days of that investigation it was unknown whether Abedi was a lone actor – to use the current phrase- or part of a wider conspiracy. The level of sophistication to the Arena attack – a large improvised explosive device, assembled from parts which were gathered over time and stored ready for use – this justified an assessment which was absent after Westminster Bridge, Finsbury Park and even London Bridge, the first two of which were lone actors, and the third albeit multi-handed was rapidly contained by the Metropolitan Police.

So we have avoided a state of emergency, which means that we have as far as possible avoided a sense of rising panic amongst the populace. I do not mean to say that all French citizens are panicking, but our position is surely preferable.

The relevance of all of this to my role is because the government’s counter terrorism strategy review can be expected to consider whether difficult times call for difficult measures. Put another way, one way of reading the PM’s ‘enough is enough’ speech is that it begs the question whether the UK in 2017 will move towards a set of laws in use during ‘situation normal’, but a different set of laws during a state or states of emergency.

I sincerely hope this is not the future. For two reasons, the first of which I have just addressed by comparison with the prevailing situation in France.

The second reason is that differential sets of legislation are in my view inadvisable. Which leads me to one of the major bridgeheads in my own review of our legislation; far from encompassing two sets of terrorism legislation, one when everything is normal and the other when it is not, do we really need bespoke terrorism legislation at all?

I realise this is difficult territory. I recognise that our Parliament is hardly likely to sweep away the terrorism legislation overnight. There is a point of principle which I will attempt to articulate. Then there is hard reality, to which I will come.

The point of principle is that terrorism is crime, and all terrorists are criminals. As such, they should be arrested, charged and brought before the courts, and the more that can be done under general criminal legislation the better. Back to the examples I gave earlier of two major terrorist atrocities which did not require terrorism legislation, namely the Murders of Fusilier Lee Rigby and Jo Cox MP. Many within the Muslim communities whom I have visited genuinely believe that terrorism laws are enacted to target them, whereas non-Muslims or white people are branded criminals but not terrorists. We would not have to deal with that conundrum if we had one set of laws – together with surviving common law offences in our jurisdiction of course  – if we were able to consign terrorism statutes to history and to move forward with general criminal laws only.

So that is the point if principle, but reality bites. We have legislation that fits all circumstances, and within the terrorism statutes we have charges of choice for prosecutors which gain far more use than others; I think of sections 2 and 5 of the 2006 Act, the former now in regular use to indict the dissemination of terrorist publications, the latter to deal with all forms of preparatory activity with terrorism in mind. These offences are not about to be swept away. But this brings me to my request for you this evening. As advocates and judges, many with experience of terrorism casework, may I call on you to make recommendations for change to our legislation as they seem necessary or desirable to you? Are there sections of any of the four statutes which I review, which are either in disuse and should be repealed, or were passed by Parliament in unnecessarily complex or confusing terms, which call for clarification? Whether from the perspective of practitioner -defending or prosecuting – or judge grappling with draft legal directions, do you think we have current offences which are problematic for one reason or another? I am actively preparing my annual report into the operation of the legislation during 2016, a report due for delivery to the Home Secretary by November according to my own timetable. I need and would welcome your help.

I should add, though do not propose to dwell on it this evening, that a proper review will of course consider sentencing provisions as well as offence-creation, so I welcome views from you on the sentencing regime as well. We know that Treacy LJ and the Sentencing Council are preparing Terrorism sentencing Guidelines, which I believe are now due for consultation by the middle of next year. Therefore, where the Court of Appeal led the way in Kahar in relation to the section 5 preparation offence, we can expect general guidelines for many more of the principal terrorism offences. They will be extremely interesting; but of course they are separate to any review of discretionary maximum sentences, hence my call for your views there.

I have not thus far touched on one of the most challenging aspects for anyone dealing with our terrorism legislation, as practitioner, judge, or academic commentator. This is of course the extent to which legislation in the interests of national security impinges upon rights which we hold to be fundamental. I do not mean to ignore this, but I am to give the Tom Sargant Memorial Lecture for JUSTICE on 24th October, and my attempt at a rights-based analysis belongs there, and I hope you will come. For now, we might agree that any debate about the need for bespoke terrorism legislation alongside general crime statutes springs from the fact that the attacks that got through this year were in many instances committed by individuals who moved from general criminality into terrorism. Sometimes this happens with alarming speed, partly at least because of the proliferation of online extremist propaganda. Because of this, anyone working in this area must think about precursor criminality and precursor offences. We have a good example of a precursor terrorism offence in section 5 of the 2006 Act already mentioned. Whilst not every incipient terrorist is a general criminal first, many are. Whether or not this is their route into terrorism, we need to consider whether our existing precursor offences are effective, and here that means ECHR compliant too. As the regular hands in terrorism casework will confirm, Article 10 is the source of legal submissions in more current terrorism trials than not. Article 10 is not absolute, hence the legal submissions focus on Article 10(2). In the context of the dissemination offence, section 2 of the 2006 Act, Article 10(2) consideration seems to have been settled by Brown, the Anarchist Handbook case tried in Winchester by Blair J in 2011, and I make a bid for reference to my own case of Faraz in Kingston in the same year, where Calvert-Smith J read down section 2 for Article 10 compliance in ways with which the Court of Appeal found faultless. Some of the multiple convictions met with a degree of  difficulty in front of Pitchford LJ on appeal in 2013, but that was for different reasons than Article 10 compliance.

I think that all I am trying to say in this brief reference to a rights-based analysis this evening, is that any new consideration of precursor offending that may emerge from the government’s CT review will need to pass a stiff test, particularly if our legislators attempt to lower the bar for precursor criminality any further than at present. Again, I would really value your expertise and input in this area if you care to make contact, as soon as possible please. And before anyone says it, of course  I should state the obvious, namely that Brexit and even a repeal of the HRA 1998 in an attempt to divorce the UK from the ECHR would not in my view make any real difference to the necessity of balancing security with individual rights in this most contentious area of criminal legislation. You know that as judges and lawyers. Many of the serious commentators including our former Attorney Dominic Grieve have said it, and I add my small voice to that crowd.

I mentioned the proliferation of extremist propaganda online. There is enough here for a separate lecture, to say the least. In an era of increasingly unsophisticated terrorist activity, in which only one of the four attacks in this country this year even went so far as the construction of an IED, we are seeing what are claimed to be fatwas from so-called Islamic State, in fact nothing more than propaganda messages delivered online by individuals who are in no way Islamically qualified to administer a true fatwa in the style of the Khomeini declaration against Salman Rushdie during the Satanic Verses affair. These new-style fatwas urge hijrah or migration to join the fight in Syria or Iraq – including the Levant, remembering the L of ISIL. In the alternative, such messages as we have seen since the July 2014 declaration of the new caliphate by Abu Bakr al Baghdadi in Mosul, they also urge action in the home country of the would-be terrorist, without migration to Muslim lands. Thus, the covenant of security much mentioned during what I might call the Abu Hamza era a decade ago, seems to have gone; not in the minds of our Muslim population, only in the warped minds of extremists. No longer is it said, by these extremists, that there is a contract, or covenant between Muslims who are treated well in their adopted or home country and who therefore cannot strike against that country.

This is an alarming development, and it goes some way to explain what we have experienced this year. And online material is partly to blame, or to put it another way it is the conduit for such malign views.

Hence the ongoing debate with tech companies, Facebook, Google, WhatsApp and all the rest. Fraught with difficulty both in terms of the technical aspects of encryption software, and in terms of  free speech preservation which is at the heart of the internet which every citizen uses every day worldwide; unless you live in China, North Korea or certain other countries where the authorities think it right to filter what the populace is allowed to see. Nothing like that must ever happen here.

When it comes to any question of what to do about online propaganda, I can tell you that my Twitter accounts fizz with messages from tech-savvy users. I am ignorant of all technicality, I don’t know what I am talking about in even broaching encryption issues, I need to back out of any infringement on the limitless commercial possibilities available to those who develop online platforms.

My ignorance is of course real in comparison to the average software engineer. That said, my mediocre efforts at seeking any answers to the question of how to identify and take down extremist propaganda meet with a deafening silence from the tech brigade, at least thus far. That is fine I suppose, but it gets us no nearer to working out how best to deal with this most modern phenomenon of quick-fix online radicalisation, moulding an adaptable and maybe criminal mind into a terrorist mindset with alarming speed.

I won’t go on about this aspect here and now. In fairness to all who give me and others a hard time for broaching the topic of dealing with online propaganda, it is of course correct that we risk an unwarranted interference with the rights of the citizen if we impinge upon internet platforms available to all when we ‘only’ seek to counter the few who may be predisposed to crime or to terrorism.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

My thoughts are with those currently in hospital.

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

Alongside so many others, I have expressed my horror at events in central London last night. As with the Westminster Bridge and Manchester Arena attacks, I have restricted my immediate comment to brief postings on Twitter. This weekend, the Police have  responded magnificently to the murderous actions of  three criminals whom we all understand to have sprung from a van used as a weapon on London Bridge. From media reports, there is a growing sense of the extreme bravery and selflessness shown by professional officers, including unarmed first-responders. Along with every other law-abiding UK citizen, I pay tribute to the dedication and – this is not too strong a word – heroism demonstrated by men and women from our Police and emergency services, for whom no effort is too great in order to keep people safe.

The fact that these events have occurred during a General Election campaign makes it even more important that lawyers like me stay out of the way, allowing politicians and the services themselves to keep us informed and to comment where they feel appropriate. This brings me to the Prime Minister’s words from 10 Downing Street this morning, which included the following:

Fourth, we have a robust counter-terrorism strategy that has proved successful over many years.  But as the nature of the threat we face becomes more complex, more fragmented, more hidden, especially online, the strategy needs to keep up.  So in light of what we are learning about the changing threat, we need to review Britain’s counter-terrorism strategy to make sure the police and security services have all the powers they need. 

And if we need to increase the length of custodial sentences for terrorism-related offences, even apparently less serious offences, that is what we will do.

Naturally enough, I am receiving many requests for interviews and comment. Whilst it should be clearly understood that  ‘counter terrorism strategy’ encompasses far more than the terrorism legislation which I review, commentators may be right that the Prime Minister has some form of review of parts of that legislation in mind. However, I know no more than what we have all heard the Prime Minister announce this morning. I am not going to speculate, especially as we remain in the grip of an election campaign until Thursday. I therefore intend to maintain my previous stance, namely to allow the Police investigation to develop over the coming days. I hope that others will understand my position, but know that I am closely monitoring things said from any quarter which may impact upon my role as Independent Reviewer. Once the Election is concluded, I shall of course provide my comments as and when appropriate.

Meanwhile, like everyone else I applaud all who attend or perform at the Manchester tribute concert this evening, whilst mourning this new loss of life on the streets of London.

The murderous actions of one individual on the streets of Westminster yesterday afternoon will be subjected to full scrutiny and investigation by our Police and intelligence services. It is vital that we await the outcome before any detailed comment.

I join with many others in offering deep respect to those who lost their lives, sympathy and condolence to their loved ones, and a prayer for the recovery of all who were injured.

It seems highly likely that what happened provides an unwelcome reminder of the existence of the threat from terrorism which we all face. However, the instant response by the Police and emergency services has been exemplary, and has been followed by the thorough investigation which is now underway.

I have no doubt that we will reflect on the events of yesterday for a long time to come. This tragedy can only serve to heighten our vigilance, and that of those who serve to protect us all.

Whilst awaiting developments from the ongoing investigation, my thoughts rest with those whose everyday lives were so shockingly interrupted yesterday afternoon.