Features « Independent Reviewer of Terrorism Legislation

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.

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.

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.

Today I met with representatives of Cage, an organisation which states on its website that it aims to ‘empower communities impacted by the War on Terror’.

I have previously criticised Cage for inaccurately quoting my views about our terrorism legislation. The meeting today was against that background, and it should be remembered that my predecessor also met with Cage. Today’s meeting lasted 90 minutes and the topics on which I listened to the views expressed by Cage representatives were:

• Schedule 7 of the Terrorism Act 2000

• Current terrorism legislation

I have come under some criticism for agreeing to meet with Cage, an organisation considered to be beyond the pale in many circles.

Successive Governments have taken the view that there are some organisations with which any engagement is inappropriate, and Cage certainly falls within that category. That is of course a matter for government and it is neither my place nor would it be appropriate for me to pass judgment on their stance.

For my part, as the Independent Reviewer of Terrorism Legislation, it is my duty and within my remit to engage with anyone who is affected in any way by the legislation. This not only helps inform my annual review of the legislation but also informs my wider contextual understanding of how our laws apply generally to society.

There are those who accuse me of being naïve in thinking anything may be achieved from this or any meeting with Cage, and I have addressed this on a previous post.

To those who suggest that Cage gains legitimacy from meeting with me, I respectfully disagree. And even if that is right, this is not a good enough reason to refuse to sit and listen to what they have to say. The independence of my role requires nothing less.

Finally, as I made clear to Cage representatives today, engagement does not mean endorsement. My own views will be reflected in my annual reports, the first of which will I hope be published by the end of this year.

TOM SARGANT MEMORIAL LECTURE FOR JUSTICE 24/10/2017

MAX HILL QC INDEPENDENT REVIEWER OF TERRORISM LEGISLATION

‘Rights vs Security: the challenge engaged’

JUSTICE does me a great honour in asking me to speak this evening.

I am especially pleased to be coming home to JUSTICE, because this is an organisation which I know and love, having worked with Andrea Coomber and Jodie Blackstock in particular for several years. We know each other through my work on behalf of the Kalisher Trust, the charity for the criminal Bar which I have chaired for four years and counting. I am proud to say that Kalisher provides an annual internship to JUSTICE, a process in which I am pleased to play my part by interviewing the best of the candidates each year alongside Andrea and Jodie. Together, we have developed a growing cadre of exceptional interns who move into pupillage and tenancy at the junior Bar. I am delighted to report that one of the recent Kalisher JUSTICE interns is currently undertaking her pupillage at Red Lion Chambers.

But I am here for a different purpose, and this kind invitation to speak follows my participation in JUSTICE human rights conferences in recent years, so it is a great pleasure if a little daunting to step up to deliver this lecture.

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

It came as no great surprise when the Prime Minister, speaking from outside Downing Street, declared that ‘enough is enough’ on 4th June, shortly after the London Bridge attack, going on to announce her intention that the Government should review the ‘counter-extremism strategy’, including a review of available legislation together with sentencing powers for terrorism offences.

Meanwhile, I had succeeded my distinguished predecessor David Anderson QC on 1st March 2017. Just in time to witness the horror that unfolded on Westminster Bridge exactly three weeks later, incidentally whilst I was sitting as a Recorder at the Central Criminal Court.

My task is to annually review our terrorism legislation, essentially the Terrorism Acts 2000 and 2006, together with the Terrorism Prevention and Investigation Measures (TPIM) Act 2011 and the Terrorist Asset Freezing Act 2010.

The challenge engaged, to come to the title of this lecture, is the extent to which legislation in the interests of national security impinges upon rights which we hold to be fundamental. And a lecture in the name of the founding Secretary of JUSTICE strikes me as the perfect platform for discussing this challenge.

The Home Secretary today announced that ‘The government intends to change the law, so that people who repeatedly view terrorist content online could face up to 15 years behind bars. The proposed changes will strengthen the existing offence of possessing information likely to be useful to a terrorist (Section 58 Terrorism Act 2000) so that it applies to material that is viewed repeatedly or streamed online’.

This is the first indication we have seen of the outcome of the government’s counter terrorism strategy review, foreshadowed by the Prime Minister in her speech on the steps of 10 Downing Street on 4th June this year, in the aftermath of the London Bridge and Borough Market attack.

There is much for legal and other commentators to consider in today’s announcement. May I offer the following to assist with the debate:

The government’s CT strategy review has been ongoing for several months. Although I am not directly involved – nor could I be as Independent Reviewer – it is clear to me that calm, rational thought is being applied to the problem we face in this country of repeated terror attacks since March this year. I say calm, rational thought is being applied, because if that were not so I suspect we might have faced a slew of brand new ‘terrorism offences’, rushed onto the statute book in haste. Instead, we see today relatively modest proposals to tighten an existing terrorism offence, rather than to create any new laws. To this extent, I welcome this development.
The Home Secretary’s announcement is just that, an announcement of an intention to amend the existing offence under section 58 of the Terrorism Act 2000. To make good that announcement, the government will need to bring forward a Counter Terrorism Bill (or similar title), and will need to engage the services of parliamentary draughtsmen in order to place the essential element of the amended offence (see the words which I have underlined, above) into appropriate statutory language. That is the difficult part, as to which commentators (myself included) will need to await the detailed legislative proposal once drafted.
Whilst we wait, there are several aspects which will require very careful attention:

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 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.

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?

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’

Independent Reviewer of Terrorism Legislation

Features

Final update 2017

Returning foreign fighters and extreme material online

My interview on the Today programme on Thursday 19th October

Meeting of the Independent Reviewer with Cage

Tom Sargant Memorial Lecture for JUSTICE 24th October 2017

‘Law tightened to target terrorists’ use of the internet’

Lecture to the Criminal Bar Association 19th September 2017

Reflections on media articles this weekend

RESPONDING TO TERRORISTS’ USE OF SOCIAL MEDIA: LEGISLATION, INVESTIGATION AND PROSECUTION.

Dogma or Demons, a speech to the Oxford Media Network and Global Strategy Forum