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Tom Sargant Memorial Lecture for JUSTICE 24th October 2017

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.

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

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:

  1. 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.
  2. 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.
  3. Whilst we wait, there are several aspects which will require very careful attention:

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Lecture to the Criminal Bar Association 19th September 2017

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.

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Reflections on media articles this weekend

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.

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

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?

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

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’

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Finsbury Park Mosque

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.

Sunday Telegraph article, 28th May 2017

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.

This week, for the first time in a decade, it proved necessary to elevate the national threat level from severe to critical, meaning that an attack was thought to be imminent.
 This heavy decision was taken by the Prime Minister and others in the immediate aftermath of the atrocity at the Manchester Arena on Monday.
A comparison can be drawn with the position after the Westminster Bridge attack in March. At the time, the Joint Terrorism Analysis Centre (JTAC) rightly assessed that Khalid Masood had acted alone and it was not therefore necessary to go to critical.
This week, however, JTAC correctly reasoned that the comparative sophistication of the Manchester attack dictated that the authorities take extreme care and deploy every available resource to discover whether this week’s killer also acted alone.
Whilst we all mourn the cruel loss of life in Manchester, including such young lives, perhaps this is a moment to reflect on the legislation available to the police and security services. In speeches and seminars, I commended the fact that there were few calls for additional terror laws in light of the Westminster attack. I believe the same applies to Manchester.
In fact, many of the laws which most accurately deal with these attacks are not “terror laws” as such. I have pointed out that Masood, had he survived, would have been charged with five counts of murder and many more of attempted murder. The same applies, though in tragically higher numbers, to the individual who detonated the bomb in Manchester, together with anyone proved to have worked with him to that terrible end.
Does it follow that criminals such as these, when charged with murder, are not to be regarded as terrorists?
Not at all. The unlawful and intentional taking of another life is the most serious crime of them all. We do not need to create a special category of statutory terrorism offence in order to mark out this heinous crime.
Next, the appalling loss of life in Manchester was caused by a bomb. So how do prosecutors charge any person found to be involved with the bomber?
The answer lies within the Explosive Substances Act 1883, an Act of Parliament passed 130 years before so-called Islamic State of Iraq and the Levant (which has claimed responsibility for the Manchester attack) was formed. Are the offences of the late Victorian era still fit for purpose? They are in my book.
Does that mean that we fail to charge terrorists with terrorism offences? Not at all. I see no need to create more statutory offences if we already have what we need.
Parliament has added an abundance of modern provisions, all of which I review directly, under the Terrorism Acts 2000 and 2006, the Terrorism Prevention Investigation Measures Act 2011 and the Terrorist Asset Freezing Act 2010. In my view, we do not lack for law in this country. Those who keep us safe, including the contingent of armed personnel we saw on our streets this week, need resources – rather than yet more law – to do the job.
The same applies to those who conduct urgent criminal investigations such as the one necessitated by the Manchester attack. These are policy and financial considerations, beyond my remit. Whilst all of that work is done, as it must be done, current legislation both old and new is ready to provide legal remedies in the name of all who spend this weekend in sorrow and in solidarity with the people of Manchester.

The London Bridge/Borough market attack, and the PM’s announcement.

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.

City Circle and Association Of Muslim Lawyers event 28th April 2017

I attended Abror House in Crawford Place, London W1 for an evening event jointly organised by City Circle @thecitycircle and the Association of Muslim Lawyers, principally focussed on Prevent. I spoke alongside one of my Special Advisers and fellow barrister Hashi Mohamed @hm_hashi . We heard an impassioned but constructive plea from Kevin Courtney, General Secretary of the NUT, who argues that the statutory duty should be lifted from the education sector, upon the basis that teachers have long safeguarded their pupils and have no need of Prevent on a statutory footing. Many in the packed hall agreed, and there were others who contended the same in relation to the health sector. I was particularly pleased to hear from many individuals, who came to speak to me at the conclusion of the formal event and who provided valuable insight and recommendations for the future of terrorism legislation.

My speech included the  following:

I start by telling you that I have been an independent, self-employed barrister for 30 years, and nothing has changed. I have not become a Minister, nor Home Office official, nor civil servant overnight. I have no contract of employment with the Government, the Home Office or any other ministry. I remain an independent lawyer and QC.

So to the essentials of  my new role.

The Independent Reviewer’s role is to monitor UK counter- terrorism legislation for its fairness, effectiveness and proportionality.

The essence of independent review lies in the combination of three concepts not often seen together:  complete independence from Government; unrestricted access to classified documents and national security personnel; and a statutory obligation on Government to lay the Independent Reviewer’s reports before Parliament on receipt.

Next, the single most significant event during my short seven weeks as Independent Reviewer, the Westminster attack, amounting to multiple murder by one individual.

I want to make the following brief points about this horrific act: Read more…