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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.

Statement on the appointment of a new Home Secretary

I congratulate Sajid Javid on his appointment as Home Secretary and wish him luck as he embarks on his many important tasks. Giving credit where it is due, Amber Rudd should be remembered for her calmness and strength in the face of the terror attacks in London and Manchester during 2017 – supported by the Security Minister Ben Wallace –  and for resisting the immediate urge to create new terrorism offences. In her resignation letter, she rightly referred to her own championing of the Global Internet Forum for Counter Terrorism, one of the initiatives that will help in ridding the internet of terrorist propaganda, without curtailing the ability of citizens here and worldwide to exercise free speech.

Sir Christopher Staughton Memorial Lecture: Reflections on my first year as Independent Reviewer

UNIVERSITY OF HERTFORSHIRE

SIR CHRISTOPHER STAUGHTON MEMORIAL LECTURE

14TH MARCH 2018.

MAX HILL Q.C.

INDEPENDENT REVIEWER OF TERRORISM LEGISLATION

REFLECTIONS ON MY FIRST YEAR AS INDEPENDENT REVIEWER

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

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The Westminster Bridge terrorist attack: a report on the use of terrorism legislation

My Report into Operation Classific, the police investigation into the terrorist attack on Westminster Bridge on 22nd March 2017, has been presented to Parliament by the Home Secretary today, 28 March 2018. It can be accessed here.

As everyone knows, it is my responsibility to monitor the use of the terrorism legislation (the Terrorism Acts 2000 and 2006, together with the Terrorist Asset Freezing Act 2010 and the Terrorism Prevention and Investigation Measures Act 2010) and to report annually to Parliament. I additionally focus on individual major investigations from time to time. My Report on Operation Classific is the first example by me of an investigation report.

It is important to remember that my report is limited to the use of the terrorism legislation by the police in the course of their criminal investigation. Therefore, I have not inquired into the circumstances of the tragic deaths or injuries caused by the terrorist Masood. Indeed, that is the responsibility of the Chief Coroner HHJ Lucraft QC, with whom I have liaised in order to ensure that my report does not trespass into the inquests which are yet to be completed. Finally it has been necessary to redact from my report the identities of the twelve individuals who were arrested by the police, because none of them were charged with any criminal offence.

My overall conclusion (found at page 41) is that there was a reasoned and proportionate use of the relevant terrorism legislation in this case. I have made some practical recommendations, found at page 42; they are that:

  1. Greater thought and clarity be given to the question whether and when it is necessary to transport a detainee sometimes hundreds of miles from their place of arrest.
  2. The introduction of a bail provision for TACT arrests be reconsidered.
  3. Learning outcomes should be identified to ensure that every detainee is given their rights at the earliest moment after arrival at the relevant police custody suite.
  4. Questioning detainees about religion or any other matter occurs with careful thought and planning. Reviewing high-profile investigations can only add to the learning and training for the future. Therefore, in the interest of clarity,  the police should take this opportunity to review training on the circumstances and extent to which detailed questions on religion and other matters will be necessary in future interviews.

 

The Terrorism Acts in 2016 (January 2018)

My first Annual Report on the operation of the Terrorism Acts 2000 and 2006 has been presented to Parliament today. It can be accessed here.

This Report deals with the operation of the legislation during the year 2016. It is a feature of the timing of my appointment that my first Report deals with the period before I became Independent Reviewer of Terrorism Legislation on 1st March 2017. There was much to consider and review, though I recognise that many readers and commentators will be awaiting my review of the use of our legislation during 2017, in the aftermath of the atrocities commencing with the Westminster Bridge attack on 22nd March last year. With that in mind, I can confirm that I am in the final stages of completing a separate Report into Operation Classific, which was the Police investigation into the Westminster Bridge attack. I hope to present that Report to the Home Office next month.

Meanwhile, the first Annual Report follows a format made familiar by my predecessor, and it addresses the following:
Threat picture
Proscribed organisations and executive orders
Stop and search
Port and border controls
Arrest and detention
Criminal proceedings

As a further echo of my predecessor’s reports, I have asked my Senior Special Advisor, Professor Emeritus Clive Walker QC (Hon) to provide a Guest Chapter, this year entitled:
Executive legal measures and terrorism: proscription and financial sanctions

In this way, I hope that my Report and the Annexes (which include the Guest Chapter) provide useful information on the operation of all four of the statutes which I review, namely the two Terrorism Acts together with the Terrorism Prevention and Investigation Measures Act 2011 (which I address in the ‘executive orders’ chapter) and the Terrorist Asset Freezing Act 2010 (which is addressed by Professor Walker).

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

Ensuring legislation effectively mitigates the increasing terror threat

Westminster eForum Keynote Seminar:

Regulation, responsibility and internet safety: policy, practicalities and the role of providers

Timing: Morning, Tuesday, 16th January 2018

Venue: Hallam Conference Centre, 44 Hallam Street, London W1W 6JJ

Ensuring legislation effectively mitigates the increasing terror threat

Max Hill QC, Independent Reviewer of Terrorism Legislation

I have been asked to address legislative solutions to the threat from terrorism which we all face in this country, mindful of the atrocities committed on our streets and bridges commencing on 22nd March last year in Westminster.

I accept the title given to me today, which is useful because it serves to underline my role and remit, which is to annually review our terrorism legislation, essentially the Terrorism Acts 2000 and 2006, together with the Terrorism Prevention and Investigation Measures (TPIM) Act 2011 and the Terrorist Asset Freezing Act 2010.

In addressing the title given to me for this short address, we must ask whether and to what extent legislation can ever provide the remedy? I have spoken and written about this many times before:

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.

Careful study of the relevant section of the Crown Prosecution Service website reveals that a wide range of statutory offences were deployed in charging terrorism cases  recently, including preparation of terrorist acts (section 5, 2006 Act), encouraging terrorism (section 1, 2006), belonging to a proscribed organization  ie  ISIS (section 11, 2000, together with inviting support for such an organization, section 12), funding terrorism (section 17, 2000), disseminating terrorist publications (section 2, 2006), 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. In general, I would suggest that our legislators ie Parliament have provided for just about every descriptive action in relation to terrorism, so we should pause before rushing to add yet more offences to the already long list.

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Final update 2017

December 2017.

Having delivered my first Annual Report to the Home Office last month, it was my hope that the Report would be published before Christmas. It is in the nature of Annual Reports that they reflect on the previous year,  therefore this Report deals with the operation of the terrorism legislation in 2016. By the same token, my predecessors report into the operation of the legislation in 2015 was published in December 2016. It is also in the nature of Independent Reviewer reporting that the content is checked for sensitivity before publication by the Home Office and presentation to Parliament. Because I have access to sensitive and secure information, I accept this necessary delay between reporting and publication. That said, it is regrettable that my Annual Report into 2016 will not now be published until the beginning of 2018. I hope it will be available early in the New Year.

In order to address the delay going forward, I have resolved to embark upon writing my Annual Report for 2017 earlier than usual. Whilst it is necessary to await publication of all of the details and statistics from the year under review, I appreciate that there will be a strong public interest in the details of how our terrorism legislation operated when all were under great strain in the aftermath of the terrorist attacks we  witnessed in London and Manchester this year. If I can, I intend to complete my Annual Report for 2017 by the summer of 2018.

This month has been notable for the publication of David Anderson QC’s report, Attacks in London and Manchester between March and June 2017: Independent assessment of MI5 and police internal reviews, December 2017. The content is fascinating. It is also timely, because I am near to completing my report into Operation Classific, the police investigation following the Westminster Bridge attack. My work necessarily follows David’s report, where he looked at the intelligence picture before the event. I resolved to report as quickly as possible on Operation Classific because it was the first of the major investigations during 2017, and because it did not lead to ongoing criminal proceedings (in contrast, for example, to the Finsbury Park incident or the Parsons Green incident). I hope to complete this report within the first two months of 2018, prior to embarking on my next Annual Report as mentioned.

2017 has been a year of tragedy, but also a year of steadfast resilience on the part of all who work so hard to keep us safe. For every right-minded citizen of this country, 2017 has also been a year of outright refusal to be cowed by terrorism. I would like to thank everyone who has helped me in whatever way  to perform my work as Independent Reviewer, and I look forward to 2018.

Returning foreign fighters and extreme material online

My words have been misrepresented in some quarters recently.

The sources of the controversy are:

– My interview on the Today programme on Thursday 19th October. Full transcript here.

– My Tom Sargant Memorial lecture for JUSTICE on Tuesday 24th October. Full transcript here.

At no time have I said that returning jihadis (to use the media term, but it might be more correct to say returning foreign fighters) should be welcomed rather than prosecuted. I have spoken and written about the various legal mechanisms available to our authorities in such cases, including Deprivation of citizenship for dual nationals, Temporary Exclusion Orders, the use of Schedule 7 port stop powers, the application of TPIMs in cases where there is intelligence but not evidence, and the use of prosecution in our criminal courts in every case where there is evidence of the commission of serious offences by British citizens whilst abroad.

In my Today interview, following the revelation by the Director-General of MI5 that many British citizens who travelled to Iraq or Syria are already back in the UK, I indicated that we should allow some space for individuals who do not fit into the categories requiring the legal sanctions I have listed, but who may be very young and naive; by which I mean for example the teenage girls who left a London Academy school in order to travel to Syria via Iraq. Even such teenagers would not escape prosecution if there is evidence that they have committed serious criminal offences, but if not, surely we should make an allowance for their return in circumstances where they were simply brainwashed, as immature  and vulnerable teenagers.

For the avoidance of doubt, it must be clear that in the case of those returning having fought for so-called Islamic State – which we may yet see, and which would be a different number than those identified by the DG of MI5 as having already returned – the expectation will be that prosecution and trial will be necessary in every case.

In my JUSTICE lecture, I did not seek to strike down the Home Secretary’s declared intention to legislate and to sentence for repeat viewing of extreme material online, by extension to sections 58 and 58A of the Terrorism Act 2000. However, as is clear from the full content of my lecture which I urge everyone to read, I indicated that great care must be taken with the definitions and the drafting of such legislation, including any extension of sentencing powers. It is my job to scrutinise and to comment upon any such proposals made by government.

My interview on the Today programme on Thursday 19th October

INTERVIEW ON THE TODAY PROGRAMME 19/10/17 07:50

MAX HILL QC INDEPENDENT REVIEWER OF TERRORISM LEGISLATION

Justin Webb (JW): How great is the risk that the killers who flee from the defeat of Islamic State in Raqqa come back to Europe, to Britain, and kill people here? The battle for Raqqa is over and Islamic State lost. The centre-piece of what they thought was going to be their caliphate is gone, there’s no doubt about that, but plenty of them survived. The European Union security commissioner, Julian King, told us yesterday that about 8,000 of them might try to come to Europe. Many of them are of course European passport holders, some are British. So after Raqqa, what now?

Max Hill QC is on the line, he’s the Independent Reviewer of Terrorist Legislation and Richard Barrett is as well, former global counter terrorism director of MI6, now director of the think tank the Global Strategy Network. Good morning to you both.

Richard Barrett (RB): Good morning.

Max Hill QC (MHQC): Good morning.

JW: Can I start with you Richard Barrett, how ready are we to deal with an upsurge of people coming back from Raqqa and from other parts of the area, if indeed that is what happens now?

RB: Well some of them are back already so I suppose the security services are already dealing with that problem, and Andrew Parker said just the day before yesterday that he’d never seen so many terrorist threats out there..

JW: He’s the boss of MI5?

RB: Indeed, indeed, and he no doubt reflects the return of some of the foreign fighters, and we believe about half of the 850 or so British citizens or residents who went to join the Islamic State are now back home. But it’s not so much a question of what to do when they come back as to understand why they came back I think, and to understand a little bit about the atmosphere, the environment to which they’re returning. And if they are received as sort of heroes, people who have achieved a great thing, then clearly that makes them more dangerous than if they’re rejected by society, so the attitude of society on return I think is very important.

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