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:

(a) Section 58 currently states that a person commits an offence if ‘he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, or he possesses a document or record containing information of that kind’.  The House of Lords (sitting as our senior appellate court shortly before the creation of the Supreme Court) considered the meaning of these words in R v G, R v J [2009]UKHL 13, and held as follows ‘that section 58(1) of the 2000 Act did not criminalise the possession of information of a kind regularly obtained or used for everyday purposes simply because it could also be useful to someone preparing an act of terrorism; that to fall within section 58 the information had to be of its nature designed to provide practical assistance to a person committing or preparing an act of terrorism’ . I do not expect any change here. Whilst information does not have to be exclusively useful to someone preparing terrorism, nonetheless it must bear that meaning or the offence is not committed.

(b) The possession offence (section 58(1)(b)) requires that the person knows what he/she has in their possession. Again, see R v G, R v J ‘the prosecution had to prove beyond reasonable doubt not only that the defendant had possessed the document or record in the sense of knowing that he had it and having control over it but also that he had been aware of the nature of the information which it contained, although he could not keep a document in his possession and claim ignorance of its contents by deliberately choosing not to inquire into them and, if a document had been hidden, the jury might be asked to infer that he had been aware of the nature of its contents.’  This means that inadvertent or accidental collection or possession of information is not enough. This means in practice that prosecutors must be careful not to indict individuals based upon the content of the internet cache on their laptop computers. To take a simple but important example, clicking on a news website may cause multiple news stories/images to be stored in the laptop user’s cache, but it does not follow that the user has read every story/image, or even that he/she knows these items are there. Care must be taken to ensure that any extension to the section 58 offence does not expose internet users to prosecution in the absence of the proof that the House of Lords has identified.

(c ) The government are clearly alive to the problem I have identified at (b) above, because the Home Secretary added ‘The updated offence will ensure that only those found to repeatedly view online terrorist material will be captured by the offence, to safeguard those who click on a link by mistake or who could argue that they did so out of curiosity rather than with criminal intent’. I welcome this, but we must wait to see what the words ‘repeatedly view’ actually mean. Are two clicks on a link one too many, or will three clicks be required? Can an internet user be innocently curious twice, but not three times? These are matters for the draughtsmen to consider, and I await the outcome with interest.

(d) Section 58, when enacted by Parliament in 2000, has an important statutory defence  of ‘reasonable excuse’ under subsection 3. Again, the Home Secretary is aware if it: ’A defence of ‘reasonable excuse’ would still be available to academics, journalists or others who may have a legitimate reason to view such material’. Here, our appellate courts have repeatedly considered this defence with care. In RvG, RvJ, the House of Lords put it this way ‘since section 58(1) focused on the nature of the information which the defendant collected, recorded or possessed rather than the circumstances in which he did those things, his purpose in doing so was irrelevant unless it amounted to a reasonable excuse within section 58(3) and, in particular, nothing in the terms of section 58(1) required the prosecution to show that he had had a terrorist purpose for doing what he had done; and that, where the prosecution had proved beyond reasonable doubt all the elements of an offence contrary to section 58(1) and the defendant adduced sufficient evidence to entitle the court or jury to find that he had a reasonable excuse within section 58(3), in order to rebut that defence section 118(2) of the 2000 Act required the prosecution to do no more than to prove beyond reasonable doubt that it had not been made out’. A bit of a mouthful if I may say so, but the reasonable excuse defence is important, is broader than the words used by the Home Secretary today, and has been considered by our senior courts on several occasions. In RvY(A) [2010]2Cr.A..R.15, the Court of Appeal put it this way ‘The defence of reasonable excuse furnished the defendant with the opportunity to say that he had an explanation for possessing the material which he asked the jury to say was objectively a reasonable one. That necessarily focused upon his reason for possessing the material and that reason would almost invariably involve him saying what his purpose was in possessing it. What the prosecution had to do to destroy the defence of reasonable excuse was merely disprove the explanation advanced or demonstrate to the satisfaction of the jury that even if the defendant’s explanation was true it was not a reasonable excuse for possessing material of the kind in question; it did not have to go on to prove what the defendant’s reason was for possessing the information. The more alarming or dangerous the information in the document or record the more difficult it was likely to be to advance a reasonable excuse for the possession of it but, unless the judge was satisfied that no reasonable jury could regard the defendant’s excuse as reasonable, the matter had to be left for the jury to decide’. So, the question of reasonable excuse, once raised by a defendant, must be left to a jury to decide unless the judge can say that no jury could find the excuse to be reasonable. This is an important safeguard I suggest, and all the more so if the Home Secretary’s announcement finds its way into draft legislation as is surely intended.

It follows for all of these reasons that any amendment to this terrorism offence must be scrutinised with the utmost care, and must not be passed into law without such scrutiny.

The importance of acting with care but not haste is further underlined by recent events in France, on which I am indebted to my Special Adviser Professor Clive Walker QC  for his research. By Loi no.2016-731 of 3 June 2016, Article 421-2-5-2 was added to the Penal Code:’The act of habitually accessing online public communication services that exhibit messages, images or representations that directly encourage the commission of terrorist acts, or defend these acts, when this service has the purpose of showing images or representations of these acts that consist of voluntary harm to life is punishable by two years of imprisonment and a fine of €30,000. This Article is not applicable when they are accessed in good faith from normal professional activity that has the objective of informing the public, conducting scientific research, or for use as evidence in court‘.  So far so good. However, this new French law was struck down by the Conseil Constitutionel, Decision no. 2016-611 QPC of 10 February 2017. The problem was that ‘good faith’ in the French definition was found to lack certainty. In other words, the French law failed to indicate with sufficient clarity how a person might not be guilty of the offence, a fundamental principle which also applies in our jurisprudence.

The French experience does not end here, it seems, because an amended offence was reintroduced by Loi no.2017-258 of 28 February 2017, art. 24. This time, the offence refers to habitually accessing online material  accompanied by an expression of adherence to ideology, and the good faith excuse has been redefined in terms of  ‘the normal practice  of  a  profession  of  which  the  purpose  is  to  inform  the  public,  arising  in  the  context  of  scientific research or research carried out in order to serve as evidence in legal proceedings, or the fact that this visit is accompanied by a report of the content of this service to the competent public authorities’ (additional thanks to Professor Walker for his translation from the French text).

As I noted above, in her announcement today the Home Secretary added ‘A defence of ‘reasonable excuse’ would still be available to academics, journalists or others who may have a legitimate reason to view such material’. It will be interesting to see how the reformulated French offence passes scrutiny, and whether that will inform those charged with drafting the proposed amendment to section 58. Whatever happens, I suggest that the judgments of the House of Lords and the Court of Appeal, to which I have referred, will be of crucial importance.

Apart from the definition of the offence under section 58 of the Terrorism Act 2000, we are to understand that the government intends to increase the maximum sentence for this offence, as well as for the section 58A offence (introduced via the Counter-Terrorism Act 2008) of eliciting information about members of the armed forces.

As it happens, I prosecuted Junead Khan last year for planning to attack personnel at a USAF airbase in Norfolk. I have no hesitation in saying that offences of this type are very serious and merit long sentences of imprisonment.

As to the proposal to extend the maximum sentence of imprisonment under section 58 and 58A to 15 years’ imprisonment, there will be mixed views on the necessity of this extension. Junead Khan was convicted of a different terrorism offence, one which carries a maximum of life imprisonment, so today’s announcement would not have a direct impact on such a case in future. But where there are future cases prosecuted under section 58 or 58A, I think it important to stress that today’s announcement is for an uplift to the discretionary maximum sentence which judges may apply. That is very different to imposing a mandatory minimum sentence, examples of which we have seen in other areas of criminal offending, including gun and knife crime as well as repeat offences of burglary. I for one am pleased that the government does not intend to follow suit in terrorism sentencing. I have noted before that terrorism trials are presided over by senior and experienced judges who should be entrusted with wide discretion to sentence appropriately for the offence and offender in question. In fact, further guidance in this area will be coming next year in the form of sentencing guidelines for terrorism offences, which the Sentencing Council is currently formulating.