Speeches and articles

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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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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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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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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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.

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…