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.

I mentioned jurisdiction, which we at the criminal Bar all recognise as England & Wales, though oddly the reach of these statutes covers Scotland and Northern Ireland, hence the role is correctly described as the UK Reviewer. Thus, a person suspected of terrorism related activity under section 41 of the Terrorism Act 2000, which is the main arrest provision, can be arrested using that power in Belfast or Glasgow as well as Cardiff and Loughborough. Equally, the provisions of Schedule 7 to the 2000 Act apply to all ports and borders around the UK, so Q & A and temporary detention of suspects under those provisions can happen anywhere. Therefore, I review the custody regime throughout the UK, and that means both the short and temporary ports detention under Schedule 7, as well as the pre-charge detention of up to 14 days under section 41. More on this later.

Pausing there, to this extent the work of the Independent Reviewer is a very 21st Century thing nowadays. All of the legislation I review has been enacted recently in fact under the Blair, Brown and Cameron governments. This fact leads me to say that we should not be lulled into thinking that our legislature has come up with remedies for terrorism only and for the first time this century. As all who act in terrorism trials know, Parliament has provided areas in this vital area last century, and the one before that. This is why, when the CPS ask for counsel’s advice on drawing Indictments in terrorism trials, the answers lie in common law and what we might call general crime statutes, more often that the four major terrorism statutes that I have mentioned. Thus, the killers of Fusilier Lee Rigby outside Woolwich Barracks in 2011 were tried and convicted for Murder under common law. And that is why the killer of Jo Cox MP in 2015 was also convicted and sentenced for Murder. We should be in no doubt that both of these appalling crimes were acts of terrorism, though as we shall see there are many who do not perceive it this way. Confusion reigns, to a degree.

But I am running ahead. Returning to the essentials of my role as IRTL, the work is underpinned by three central principles, without which it would not work an neither I nor my predecessors who have accepted the role. I have not invented these principles, they were identified by my predecessor David Anderson in one of his reports and I endorse all three:

First, the Independent Reviewer is entirely independent from the Government, from Ministries and from the Civil Service. You would think that much is obvious from the first word of my title, but to many it seems far from obvious. I am not complaining. I understand that for a white male, another white male, to be appointed from a background of terrorism prosecution, this comes as a sore temptation to many who find it easier to see me as a functionary of the establishment. So I have withstood outbreaks of criticism on social media, often from those with a vested interest in seeing me as dependent upon the Government, rather than independent. And I have tried to answer many concerned individuals and groups around the country, who are confused by the relevance and targeting of our legislation as they see it, and  who are sometimes prone to conspiracy theories which do not exist. And on occasions, not every week but on multiple occasions, I find that media reporting plays to the gallery by describing me as Number 10s adviser, the governments top terror adviser, the terror chief, etc. This evening, amongst fellow Bar and judiciary, I hope and expect that most of you are mystified by such positioning, and by such criticism. You and I know that we accept a brief from wherever and whomever. We do our professional best for the side that instructs us. It isn’t personal. It doesn’t mean that we take a partisan view on the application of the law, just a considered view on the law which applies to every citizen.

Second, the Independent Reviewer has unfettered access to security personnel and to sensitive information. This is entirely true. It is also why some have difficulty with the first principle, independence. I certainly find that my words, spoken and written since 1st March when I came into post, my words are seen by some as an insight into a secret world, and an insight into the policy of HMG. Well, sorry to disappoint but I do not take tea at Number 10 whilst plotting new anti-terror laws with the higher echelons of government. In fact, I have never been to Number 10, yet.

However, this second principle has worked out thus far. I have been to all of the Ministries whose work touches on the relevant legislation, for example HM Treasury in relation to the Asset Freezing Act, and of course the Home Office in relation to TPIMs and the Terrorism Acts, including the Office for Security and Counter Terrorism, OSCT, set up as a directorate within the Home Office during John Reid’s time as Home Secretary. And I go to all of the security and intelligence agencies that you would expect, including GCHQ, the Security Service or MI5 and the Secret Intelligence or MI6. So far so unsurprising, as many of you will have been to these places conducting disclosure reviews in CT-related casework. What I have found new and utterly fascinating, however, is the level of access from top to bottom which is afforded to the Independent Reviewer. Whilst I am alive to the possibility of a world identified memorably by Donald Rumsfeld a few years ago, a world in which there are ‘unknown unknowns’, I am yet to find any limit I can discern to the questions I ask or the places I wish to go. In this regard, I suggest that my previous career history at the Bar equips me well in knowing where I should look within Ministries and agencies, because I know what a terrorism investigation looks like from the perspective of a trial lawyer, so I have not found it so difficult to reverse engineer criminal cases in order to ask what I hope are all the right questions when I examine the agencies and the rest in uncovering their adherence to proper practice in applying our terrorism legislation.

That said, it will be in the eye of the beholder whether I hold either a biased view or fail to ask the right questions, so you can judge me as and when I produce my written reports. This brings me to the third principle underpinning the Independent Reviewer’s work; although my written reports are presented to the Home Secretary, the Minister is obliged to provide those reports to Parliament. That is an inescapable duty, albeit there is a delay from stage one to two; David Anderson’s final report, on Deportation with Assurances, went to the Minister in February this year but only made it to Parliament in the summer. A short delay is acceptable, for obvious reasons such as checking whether the report itself contains classified information. Long delays are harder to explain, and I live in hope that this will not happen to any of my reports. If it does, it diminishes the role of the Independent Reviewer, which neither I nor any of my predecessors wish to see on our watch.

This third principle, the obligation to lay reports before Parliament, leads me into the territory which is new for me but which is surely vital for the proper carrying out of this public appointment. If there is unfettered access to the machinery of UK PLC when it comes to my examining the inner workings of the intelligence services and the rest, there must also be unfettered access to all who can shed light on the impact of our terrorism legislation. Because in order to report on the operation of the statutes, we need to understand what impact these laws have around the country.

I said this is one part of the job which is new to me. It is the area in which I have tried to work hard, even hardest. My previous professional work at the Bar has included prosecuting Police officers for Murder and Misconduct; the killing of Azelle Rodney, tried here, and the death of Sean Rigg, tried at Southwark. Both trials placed police officers in the dock, and I prosecuted. I hope this provides evidence to some of the doubters, who saw me as a state prosecutor against the people. Perhaps I don’t need to dwell on this in front of you, because as I mentioned before we all know what professional practice entails. Therefore you will recognise that over many years I have defended in this building in almost as many serious cases as I have prosecuted.

Since 1st March though, I have regarded it as a priority that I engage with the wider impact of our legislation. I have regarded it as a given that I will be allowed to inspect the agencies and services including the Metropolitan Police Counter Terrorism Command who are on the prosecution side of the house. Therefore, I quickly embarked upon what for the want of a better phrase I might call community engagement work.

Let’s take a short cut to Cage at this point. We know who they are, up to a point. Former Guantanamo detainees including Moazzem Begg, now active in arguing against key elements of the governments counter-terrorism strategy, and their recent efforts have included hostility towards the Schedule 7 port-stop regime. Their public endorsement of UK citizen Mohamed Emwazi as a ‘beautiful young man’ has done them little good in most circles, because Emwazi is better known as ‘Jihadi John’, the most notorious of the so-called Islamic State Beatles, the not-so fab four most if not all of whom are now thankfully deceased.

Is it an error to meet with Cage, or other groups or individuals like that? I think not. I think that my duty of inquiry demands that I sometimes go to uncomfortable places. I have no problem with that. Holding a meeting is not the same as sharing a platform. And I can and do hold meetings with others whose views I do not accept. Back to the first word of my title, independence is all.

But Cage is merely a newsworthy example. I have travelled up and down the country, meeting with families whose homes have been searched by the Police in the wake of the recent attacks in London and Manchester. Families where one or more members, usually of the younger generation, have been arrested and taken into custody but usually later released without charge. More on that in a moment.

I have also met the son of the Imam at the largest Mosque in south Manchester, 20 years of age and he was on duty as a door supervisor at the Arena during the Ariane Grande concert. Lucky not to have been murdered therefore, and he is the son of the Imam.

I have also met the Chairman of a Mosque in Leicester who told me that his Mosque had long-prepared a visit by primary school children from outside of town on the day after the Westminster Bridge attack, therefore March 23rd. That morning the sole Muslim teacher at the school rang to say he was very sorry but the white parents of the children had decided they didn’t want their children visiting a Mosque.

And the same Mosque Committee told me that young Muslim professionals in their community were no longer willing to associate formally with the Mosque for fear of professional repercussions when it came to background checks during job applications.

Pausing there, what are witnessing in this country? Limiting ourselves to the snapshot I have just provided, we are seeing the rise of Islamophobia, the potential loss of young professionals – perhaps second generation migrants to this country  – from serving in the Mosque and cementing its role within the Muslim community of the 21st century. And we are seeing large numbers of individuals and families feeling first-hand the impact of our terrorism legislation because of the unprecedented levels of search and arrest operations in light of the recent attacks.

It is an unsettling picture. For more, I refer you to a non-governmental organisation called Forward Thinking, who took me into Muslim communities in Leicester, Bradford and Manchester, and whose report under their Building Bridges programme charts my progress during those visits.

Many of the problems I am seeing, and I am by no means alone in commentating upon these issues, reveal political and societal issues which are beyond my remit. The Prevent programme, being one of the four limbs of the overarching CONTEST strategy, is also beyond my remit. So I don’t want to make any more of all that this evening.

However, the impact of the operation of our terrorism legislation is strictly within remit, thus my observations on the wave of arrests and pre-charge detentions under section 41 Terrorism Act are relevant. This brings me to another aspect of the Independent Reviewer’s role. Since January this year, the IRTL became a member of the National Preventive Mechanism, a group of some 20 plus entities including the Chief Inspectors of Prisons and Police, charged with adherence to the European Directive to keep the conditions in which detained persons are held under close scrutiny.

What that means to me is that I see the pre-charge terrorism custody environment in all its aspects. Unlike ordinary police detention under PACE, the Terrorism Act regime as you know entails holding individuals in bespoke facilities, entirely separate from normal custody suites and in conditions of solitary confinement. For up to 14 days.

I was very relieved to discover that there is an Independent Custody Visitors Association, the ICVA. They train and run hundreds of volunteers throughout the UK, who conduct daily visits to Police custody suites; and they run a cadre of specially trained Terrorism Act volunteers who hold security clearance and who go to see Terrorism Act detained every day.

This is great resource, and I have latched on quickly. Since the end of March, I receive daily emails attaching scanned report forms from each of the terrorism suites which happen to be open, and I also receive emails notifying me of every Terrorism Act arrest, Warrant of Further Detention and/or charging decision or release without charge; remembering that the Terrorism Act custody powers do not include bail before charge, in contrast to the PACE regime.

Linking all of this back to what was revealed to me by families  within the Libyan Muslim community in Manchester and elsewhere, you might be surprised to hear that I have come across very little by way of complaint about the custody regime or the use of Terrorism Act powers by the Police in general.

If you will allow me to give a self-serving example, but a relevant one, when amongst the Libyan community in Manchester I was told by one community leader of his fears for a friend who had been arrested at Heathrow the previous day and whose health and treatment was an urgent preoccupation. Whilst the details of Terrorism Act detentions are not for public airing for obvious reasons, and even  the location of Terrorism Act suites is hidden, on this occasion in Manchester I thought it appropriate to tell the community leader that I had personally visited his friend in the custody suite some three hours earlier, and to his great surprise and relief I was able to confirm that this friend was being treated well and had no complaints about his conditions.

I don’t want to overdo this. Yes, there are examples – in fact only one which has reached be but nonetheless important – where families disrupted by police investigations do wish to complain about it. I have done my bit in facilitating a complaint in the case in question. It is important that grievances are aired and I hope resolved. The future of effective community policing demands nothing less.

However, I have found in general that even the detention of hundreds of suspects in the aftermath of major terrorist attacks should not cause concern or damage, always provided the statutory powers vested in the Police are appropriately used.

So may we turn to the immediate future of our terrorism legislation. My principal concern of course. This brings me to the ongoing government review of counter-terrorism strategy, a review foreshadowed by the Prime Minister in her ‘enough is enough’ speech on the steps of Number Ten on 4th June, the day after the London Bridge and Borough Market attack.

Terrorism legislation in the UK, to date, has been generated in reaction to major events and in haste. The Explosive Substances Act 1883 is one good example, passed by a late Victorian Parliament in record time and in relation to the events of the day in Ireland. The Terrorism Act 2006, passed again in quick time with steerage by Charles Clarke’s Home Office, is another good example which we all remember was in relation to the atrocity on 7/7 the previous year.

And the Prevention of Terrorism Acts late last century provide continuous examples of emergency legislation, intended to be in force only for one year at a time, but circumstances required annual renewal for a long period during the Irish Republican era prior to the 1998 Good Friday agreement.

Moving over the Channel for a moment, we have a prime example of what the French claim to be a continuing state of emergency ever since the Bataclan attack in Paris. The French decision is understandable, whom am I to say otherwise, but I believe it is  not correct. In fact it is corrosive to require a national population to live under a state of emergency for a long period of time.

In the UK, we know that the national threat level is assessed and maintained not by government, but by JTAC, the Joint Terrorism Analysis Centre. Their work is part reactive, part proactive, and their quarterly worldwide threat level assessments are fascinating. How they do it is not the subject of this lecture, nor am I the right person to explain. however, it is notable that the UK threat level only reached ‘emergency’ or Critical twice this year, namely for a period of approximately 48 hours very shortly after the Manchester Arena attack, and then again this weekend after the Parsons Green incident. The first was a reaction to the newly-commenced investigation led by Greater Manchester Police, and the move upwards from Severe to Critical was justified because in the earliest days of that investigation it was unknown whether Abedi was a lone actor – to use the current phrase- or part of a wider conspiracy. The level of sophistication to the Arena attack – a large improvised explosive device, assembled from parts which were gathered over time and stored ready for use – this justified an assessment which was absent after Westminster Bridge, Finsbury Park and even London Bridge, the first two of which were lone actors, and the third albeit multi-handed was rapidly contained by the Metropolitan Police.

So we have avoided a state of emergency, which means that we have as far as possible avoided a sense of rising panic amongst the populace. I do not mean to say that all French citizens are panicking, but our position is surely preferable.

The relevance of all of this to my role is because the government’s counter terrorism strategy review can be expected to consider whether difficult times call for difficult measures. Put another way, one way of reading the PM’s ‘enough is enough’ speech is that it begs the question whether the UK in 2017 will move towards a set of laws in use during ‘situation normal’, but a different set of laws during a state or states of emergency.

I sincerely hope this is not the future. For two reasons, the first of which I have just addressed by comparison with the prevailing situation in France.

The second reason is that differential sets of legislation are in my view inadvisable. Which leads me to one of the major bridgeheads in my own review of our legislation; far from encompassing two sets of terrorism legislation, one when everything is normal and the other when it is not, do we really need bespoke terrorism legislation at all?

I realise this is difficult territory. I recognise that our Parliament is hardly likely to sweep away the terrorism legislation overnight. There is a point of principle which I will attempt to articulate. Then there is hard reality, to which I will come.

The point of principle is that terrorism is crime, and all terrorists are criminals. As such, they should be arrested, charged and brought before the courts, and the more that can be done under general criminal legislation the better. Back to the examples I gave earlier of two major terrorist atrocities which did not require terrorism legislation, namely the Murders of Fusilier Lee Rigby and Jo Cox MP. Many within the Muslim communities whom I have visited genuinely believe that terrorism laws are enacted to target them, whereas non-Muslims or white people are branded criminals but not terrorists. We would not have to deal with that conundrum if we had one set of laws – together with surviving common law offences in our jurisdiction of course  – if we were able to consign terrorism statutes to history and to move forward with general criminal laws only.

So that is the point if principle, but reality bites. We have legislation that fits all circumstances, and within the terrorism statutes we have charges of choice for prosecutors which gain far more use than others; I think of sections 2 and 5 of the 2006 Act, the former now in regular use to indict the dissemination of terrorist publications, the latter to deal with all forms of preparatory activity with terrorism in mind. These offences are not about to be swept away. But this brings me to my request for you this evening. As advocates and judges, many with experience of terrorism casework, may I call on you to make recommendations for change to our legislation as they seem necessary or desirable to you? Are there sections of any of the four statutes which I review, which are either in disuse and should be repealed, or were passed by Parliament in unnecessarily complex or confusing terms, which call for clarification? Whether from the perspective of practitioner -defending or prosecuting – or judge grappling with draft legal directions, do you think we have current offences which are problematic for one reason or another? I am actively preparing my annual report into the operation of the legislation during 2016, a report due for delivery to the Home Secretary by November according to my own timetable. I need and would welcome your help.

I should add, though do not propose to dwell on it this evening, that a proper review will of course consider sentencing provisions as well as offence-creation, so I welcome views from you on the sentencing regime as well. We know that Treacy LJ and the Sentencing Council are preparing Terrorism sentencing Guidelines, which I believe are now due for consultation by the middle of next year. Therefore, where the Court of Appeal led the way in Kahar in relation to the section 5 preparation offence, we can expect general guidelines for many more of the principal terrorism offences. They will be extremely interesting; but of course they are separate to any review of discretionary maximum sentences, hence my call for your views there.

I have not thus far touched on one of the most challenging aspects for anyone dealing with our terrorism legislation, as practitioner, judge, or academic commentator. This is of course the extent to which legislation in the interests of national security impinges upon rights which we hold to be fundamental. I do not mean to ignore this, but I am to give the Tom Sargant Memorial Lecture for JUSTICE on 24th October, and my attempt at a rights-based analysis belongs there, and I hope you will come. For now, we might agree that any debate about the need for bespoke terrorism legislation alongside general crime statutes springs from the fact that the attacks that got through this year were in many instances committed by individuals who moved from general criminality into terrorism. Sometimes this happens with alarming speed, partly at least because of the proliferation of online extremist propaganda. Because of this, anyone working in this area must think about precursor criminality and precursor offences. We have a good example of a precursor terrorism offence in section 5 of the 2006 Act already mentioned. Whilst not every incipient terrorist is a general criminal first, many are. Whether or not this is their route into terrorism, we need to consider whether our existing precursor offences are effective, and here that means ECHR compliant too. As the regular hands in terrorism casework will confirm, Article 10 is the source of legal submissions in more current terrorism trials than not. Article 10 is not absolute, hence the legal submissions focus on Article 10(2). In the context of the dissemination offence, section 2 of the 2006 Act, Article 10(2) consideration seems to have been settled by Brown, the Anarchist Handbook case tried in Winchester by Blair J in 2011, and I make a bid for reference to my own case of Faraz in Kingston in the same year, where Calvert-Smith J read down section 2 for Article 10 compliance in ways with which the Court of Appeal found faultless. Some of the multiple convictions met with a degree of  difficulty in front of Pitchford LJ on appeal in 2013, but that was for different reasons than Article 10 compliance.

I think that all I am trying to say in this brief reference to a rights-based analysis this evening, is that any new consideration of precursor offending that may emerge from the government’s CT review will need to pass a stiff test, particularly if our legislators attempt to lower the bar for precursor criminality any further than at present. Again, I would really value your expertise and input in this area if you care to make contact, as soon as possible please. And before anyone says it, of course  I should state the obvious, namely that Brexit and even a repeal of the HRA 1998 in an attempt to divorce the UK from the ECHR would not in my view make any real difference to the necessity of balancing security with individual rights in this most contentious area of criminal legislation. You know that as judges and lawyers. Many of the serious commentators including our former Attorney Dominic Grieve have said it, and I add my small voice to that crowd.

I mentioned the proliferation of extremist propaganda online. There is enough here for a separate lecture, to say the least. In an era of increasingly unsophisticated terrorist activity, in which only one of the four attacks in this country this year even went so far as the construction of an IED, we are seeing what are claimed to be fatwas from so-called Islamic State, in fact nothing more than propaganda messages delivered online by individuals who are in no way Islamically qualified to administer a true fatwa in the style of the Khomeini declaration against Salman Rushdie during the Satanic Verses affair. These new-style fatwas urge hijrah or migration to join the fight in Syria or Iraq – including the Levant, remembering the L of ISIL. In the alternative, such messages as we have seen since the July 2014 declaration of the new caliphate by Abu Bakr al Baghdadi in Mosul, they also urge action in the home country of the would-be terrorist, without migration to Muslim lands. Thus, the covenant of security much mentioned during what I might call the Abu Hamza era a decade ago, seems to have gone; not in the minds of our Muslim population, only in the warped minds of extremists. No longer is it said, by these extremists, that there is a contract, or covenant between Muslims who are treated well in their adopted or home country and who therefore cannot strike against that country.

This is an alarming development, and it goes some way to explain what we have experienced this year. And online material is partly to blame, or to put it another way it is the conduit for such malign views.

Hence the ongoing debate with tech companies, Facebook, Google, WhatsApp and all the rest. Fraught with difficulty both in terms of the technical aspects of encryption software, and in terms of  free speech preservation which is at the heart of the internet which every citizen uses every day worldwide; unless you live in China, North Korea or certain other countries where the authorities think it right to filter what the populace is allowed to see. Nothing like that must ever happen here.

When it comes to any question of what to do about online propaganda, I can tell you that my Twitter accounts fizz with messages from tech-savvy users. I am ignorant of all technicality, I don’t know what I am talking about in even broaching encryption issues, I need to back out of any infringement on the limitless commercial possibilities available to those who develop online platforms.

My ignorance is of course real in comparison to the average software engineer. That said, my mediocre efforts at seeking any answers to the question of how to identify and take down extremist propaganda meet with a deafening silence from the tech brigade, at least thus far. That is fine I suppose, but it gets us no nearer to working out how best to deal with this most modern phenomenon of quick-fix online radicalisation, moulding an adaptable and maybe criminal mind into a terrorist mindset with alarming speed.

I won’t go on about this aspect here and now. In fairness to all who give me and others a hard time for broaching the topic of dealing with online propaganda, it is of course correct that we risk an unwarranted interference with the rights of the citizen if we impinge upon internet platforms available to all when we ‘only’ seek to counter the few who may be predisposed to crime or to terrorism.