COUNTER -TERRORISM AND BORDER SECURITY BILL 2018
REPORT AMENDMENTS TABLED BY THE GOVERNMENT IN SEPTEMBER 2018
ADDITIONAL COMMENTS BY MAX HILL Q.C. INDEPENDENT REVIEWER OF TERRORISM LEGISLATION, OCTOBER 2018
I gave evidence to the JCHR on 20th June 2018, here. I also gave evidence to the Bill Committee on 26th June 2018, here. Subsequently, together with my Senior Special Advisor Professor Clive Walker QC (Hon), written submissions were provided to the Bill Committee, here. I maintain my previous commentary on the Bill clauses, and restrict these additional comments to matters prompted by the Report Amendments subsequently tabled by the Government.
The Report Amendments came in two sections, here and here. The Government has also provided supplementary documents which include ECHR Memos and an Impact Assessment,Â here.
Entering or remaining in a designated area. By this amendment, the Secretary of State may designate any area outside the United Kingdom, when satisfied that it is necessary for the purpose of protecting members of the public from a risk of terrorism. It becomes an offence punishable with up to ten yearsâ€™ imprisonment to â€˜enter or remain inâ€™ an area so designated. The offence is expressed not to be retrospective, however, a person who remains in an area for more than one month after designation is caught by the new offence. The accompanying Impact Assessment states â€˜due to the instability of these conflict zones, it can be a difficult challenge to gather sufficient admissible evidence that individuals have been involved in specific terrorist-related activity, which limits the Governmentâ€™s ability to prosecute such individuals should they return to the United Kingdomâ€™. The Governmentâ€™s intentions here are understandable. Despite some media reports to the contrary, I have always argued that any person who commits terrorism offences here or abroad must be prosecuted (see here for my clear views on this topic, last year). However, this proposed new offence brings a number of complications.
Research demonstrates that a possible blueprint for the new offence can be found in Australia, namely sections 119.2 and 119.3 of the Criminal Code, the â€˜declared area provisionsâ€™, in force since 2014. As here, Australia recognised the difficulty of gathering evidence in conflict zones, and wished to apply a deterrent to reduce travel to certain areas. Here the similarities end. The Australian test for designation is that the Foreign Affairs Minister â€˜is satisfied that a listed terrorist organisation is engaging in hostile activity in that area of the foreign countryâ€™ (section 119.3(1)). Further, the Australian offence has a â€˜sunset clauseâ€™ of three years. And further, the review that took place earlier this year by the Australian Parliamentary Joint Committee on Intelligence and Security included careful consideration of (a) the difficulty for those facing prosecution of gathering evidence sufficient to raise reasonable excuse as a defence, (b) the disruption to all travel which the new offence creates, and the chilling effect on legitimate travel, and (c) the need for pre-authorisation in certain circumstances.
As to the last, I gave evidence to the JCHR in January this year during scrutiny of the new Sanctions and Anti-Money Laundering Bill (now Act), drawing attention to humanitarian and other aid work which could be severely disrupted by new legislation of this kind. Finally, by section 119.2(3), the Australian offence recognises a defence of legitimate purpose, which is defined to include providing aid of a humanitarian nature and visiting family members. By contrast, the proposed new offence here carries a defence of reasonable excuse (new section 58B(2)), which is not defined or explained further, and the only statutory exemption is for those holding office under the Crown (58B(7)). Therefore, there is much to consider, and no doubt many or all of the arguments raised before the Australian Joint Committee will, and should, be raised here. I regret that this will come too late for my participation after leaving my post as Independent Reviewer on 12th October.
Clause 3 amendment to section 58 Terrorism Act 2000. By this amendment, the so-called â€˜three clicksâ€™ offence proposal has been altered by leaving out the words â€˜on three or more different occasionsâ€™. Thus, three clicks are to become one. My first reaction is to recognise an element of consistency in the drafting. Since 2000, it has been an offence to collect information likely to be useful to terrorists, and section 58 does not require that such information be contained in multiple documents, so just one will do. So why not repeat that logic in the case of those who view material but do not download? However, that argument is in my view overridden by the twin objectives behind section 58 in its original form, neither of which is satisfied by this proposed new variant. The first objective behind section 58 is what in my earlier evidence to Parliament I called â€˜anti-proliferationâ€™. In other words, it is legitimate to bear down upon the copying and/or distribution of material likely to be useful to terrorists. But, as I have said before, mere access is not proliferation. Therefore neither the three clicks version nor the new one click variant satisfy this objective. The second objective, which was identified within the explanatory notes to the draft Bill as first presented to Parliament in June, is the identification of a â€˜pattern of behaviourâ€™, namely by isolating those who repeatedly access material likely to be useful to terrorists. In my view, this was a stronger argument in favour of the three clicks offence, which argument has now been lost by replacement with one click. There can be no pattern of behaviour here. On the contrary, a one click offence will further expose to investigation and prosecution many categories of internet users who access material for multiple purposes, none of which relate to terrorism.
The Memberâ€™s explanatory statement accompanying the clause 3 amendment foreshadows this concern and states â€˜the circumstances in which a reasonable excuse defence will apply include those where the person did not know that the document would contain such informationâ€™. By way of expansion upon this theme, correspondence accompanying the report amendments (including a letter from the Minister of State for Security and Economic Crime dated 4 September 2018)Â states â€˜the reasonable excuse defence includes circumstances to the effect that the person did not know, and had no reason to believe, that the document or video being viewed contained, or was likely to contain, information of a kind likely to be useful…â€™. The letter amplifies this guidance by referring to section 118 of the 2000 Act (placing the burden on the prosecution to disprove the defence of reasonable excuse once raised), by reciting the judgment of the House of Lords in R v G, R v J UKHL13, and refers to â€˜the difficulties of defining legitimate activity in advance or in the abstract, and (on) the importance of juries determining whether an excuse is reasonable on the particular facts and circumstances of the individual caseâ€™. None of which answers evidence given to the Bill Committee in June to the effect that relying upon reasonable excuse is too late, and too expensive for individuals who may be caught by the new offence but who do indeed have a reasonable excuse, including those who are academic researchers or journalists. Further parliamentary scrutiny of clause 3 as amended comes too late for my participation after leaving my post as Independent Reviewer on 12th October, but I fear that this amendment does little if anything to answer the many concerns raised to date.
Clause 6 amendment to sentencing under section 38B Terrorism Act 2000. I have consistently suggested that there may be circumstances in which a discretionary maximum sentence of five yearsâ€™ imprisonment for withholding information about terrorist activity yet to happen, or which has just happened, is insufficient. I was surprised that the draft Bill did not increase the sentencing power in this area, and said so in my evidence to Parliament in June. In my opinion, the amendment to clause 6 puts this matter right. However, it does not follow that the remainder of clause 6 is without controversy. I and others have previously given evidence as to the danger of disproportionality in many cases.