Sir Christopher Staughton Memorial Lecture: Reflections on my first year as Independent Reviewer

UNIVERSITY OF HERTFORSHIRE

SIR CHRISTOPHER STAUGHTON MEMORIAL LECTURE

14TH MARCH 2018.

MAX HILL Q.C.

INDEPENDENT REVIEWER OF TERRORISM LEGISLATION

REFLECTIONS ON MY FIRST YEAR AS INDEPENDENT REVIEWER

On Wednesday 22 March 2017, 52-year old British-born Khalid Masood drove a hired vehicle across Westminster Bridge in the direction of the Palace of Westminster. He mounted the pavement twice colliding with pedestrians and then a third time crashing into the east perimeter gates of the Palace of Westminster. Masood then exited the car and ran into the vehicle entrance gateway of the Palace of Westminster, Carriage Gates, where he attacked and fatally injured PC Keith Palmer using a knife. Masood was shot at the scene by armed police protection officers who were in Parliament at the time of the attack. The whole incident lasted approximately 82 seconds. The attack resulted in 29 people injured and 6 fatalities.

The UK, in fact England, last year 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, followed by those at 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 on 15th September.

I became Independent Reviewer of Terrorism Legislation on 1st March 2017. Just in time to witness the horror that unfolded on Westminster Bridge exactly three weeks later. 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 (TAFA) 2010. My first annual report into the operation of the Terrorism Acts in 2016 was delivered to the Home Office in November 2017 and published in January 2018. That report does not cover the events of 2017 which will be the focus of the next Annual Report. Meanwhile, my second report addresses the police investigation which followed the Westminster Bridge attack; the operation name of the investigation was Classific, and it encompassed the arrest of 12 people, who were detained for between 1 and 6 days, but then released without charge in every case. Having presented my report to the Home Office a month ago, it is my hope that it will be published in Parliament by the Home Secretary in time for the first anniversary of the Westminster Bridge attack, on 22nd March next week. For the time being, courtesy to Parliament requires that I maintain silence as to the detail of the report, but I can tell you that I have attempted to provide an insight into the hour by hour progress of the investigation, covering every arrest and what then happened to each of the 12 persons who were detained and ultimately released. I can also tell you that in my view this was an efficient and timely investigation, involving the appropriate use of statutory powers by the police. Just because nobody was charged, that does not mean that the police acted improperly. On the contrary, a thorough and speedy investigation was needed, arriving at the conclusion that the terrorist Masood acted alone on that day.

A Reviewer reviews, he does not set policy, still less make laws, and there is a necessary delay between all of the operational activity after the terrorist atrocities we have witnessed on our streets this year, and any attempt by me to sensibly review our legislation going forward.

I do not have all the answers. I hope however to shine a light in some useful ways, and this evening I hope to provoke thought and perhaps discussion by touching on a number of topics, sometimes looking through the prism of what has happened last year, as well as some reflections on what is happening this year.

May we start with some headlines and statistics.

  • During 2016, the overall threat picture for the UK remained at Severe. Daesh continued to represent the most significant terrorist threat, but the UK faced a continuing threat of violence and terrorism from groups or individuals associated with the far right. This was evidenced by the proscription of the extreme right wing group National Action in December 2016, following the terrorism-related murder of Jo Cox MP in June 2016. In 2017, the aftermath of two of the attacks required elevation of the threat level from Severe to Critical – decisions made not by the PM or by Government, but by JTAC. However, on each occasion the elevated threat level was returned to Severe again within 48 hours.
  • 71 organisations are proscribed under the Terrorism Act, and 14 organisations in Northern Ireland under previous legislation. 6 people were subject to TPIM notices during 2016. That number altered very little during 2017.
  • The Terrorism Act stop and search powers were used 483 times in Great Britain during 2016 with an arrest rate of 9%. The powers were used 197 times in Northern Ireland. The power to stop and search without suspicion was once again not used.
  • The frequency of use of Schedule 7 powers to examine people at ports and airports continued to decline, with 17,501 examinations in Great Britain in the year ending June 2017 compared to 23,719 examinations in the previous 12 months.
  • The number of Terrorism Act arrests across the UK decreased in 2016 compared to 2015, with Northern Ireland figures being the lowest recorded number of arrests in any year since 2001. During 2017, we can be sure that numbers rose – I do not yet have a complete set of figures –  but that was because of the aftermath of the attacks we all witnessed, together with the increase in detection of far and extreme right wing activity, coupled with the sharp rise in Islamophobia which was a sad consequence of last year’s events.  The arrest power was once again used with far greater frequency, certainly during 2016,  in Northern Ireland than in Great Britain, but detention beyond 48 hours, common in Great Britain, is still rare in Northern Ireland. Terrorism trials are conducted quickly in Great Britain, almost always commencing within one year of the event leading to the arrest of any suspects. In Northern Ireland, by contrast, terrorism trials often take 2 or 3 years to come to fruition, and along the way a large number of those facing trial are admitted to bail. This is one of many significant differences between GB and NI, another of course being the continuance of non-jury criminal trials in NI, something we do not see in GB.
  • In GB, there were 62 completed trials for terrorism related offences in 2016. Of these, 54 persons were convicted and 8 acquitted. The concluded cases included those of Thomas Mair the killer of Jo Cox MP, and Anjem Chaudary, often regarded as a leading hate preacher as well as leader of Al Muhajiroun.

A further word now about my role.

The Independent Reviewer’s role is to monitor UK counter-terrorism legislation for its fairness, effectiveness and proportionality. The work is underpinned by three central principles, without which it could not function. These principles, which were identified by my predecessor David Anderson QC in one of his reports, are: 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.

To the legislation; let’s look at the most recent changes, as a means of assessing where we are now:

All four of the statutes which I now review remain in force. There were no substantive recent changes, but the following changes were made to the legislation during 2017:

(a) Schedule 8 of the TA 2000 was amended by Section 71 of the Policing and Crime Act 2017 to enable DNA profiles and fingerprints to be retained indefinitely where a person has convictions outside the United Kingdom. Section 68 of the 2017 Act (with more details in section 69) creates a new offence of breaching travel-related conditions of pre-charge bail (defined as ‘travel restriction conditions’) for those arrested on suspicion of committing a terrorist offence.

(b) The Criminal Justice Act 1988 (Reviews of Sentencing) (Amendment) Order 2017, SI 2017/1751, adds 19 either way offences which trigger the terrorism notification requirements in Part 4 of the Counter-Terrorism Act 2008 to Schedule 1 of the original Review of Sentencing 2006 Order. Part IV of the 2017 Order allows the Attorney General, with leave from the Court of Appeal, to refer certain cases to the Court of Appeal where he considers that a sentence imposed in the Crown Court was unduly lenient.

(c) Amendments were made to the TA 2000 and to Schedule 1 of the Anti-terrorism, Crime and Security Act (ATCSA) 2001 by Part 2 of the Criminal Finances Act 2017, including the introduction in Schedule 1 of the Act of a new power to administratively forfeit “terrorist cash” in new Part 2A and new civil recovery powers in new Parts 4A and 4B to seize, detain and forfeit terrorist assets and terrorist money held in bank and building society accounts.

(d) The Prison (Amendment) Rules 2017, SI 2017/560, which are linked to the special offences in the legislation, allow for a special separation regime for extremist prisoners as envisaged by the Acheson Report. By r.46A, there will be separation centres, with allocation on any of the following grounds:
i. the interests of national security;
ii. to prevent the commission, preparation or instigation of an act of terrorism, a terrorism offence, or an offence with a terrorist connection, whether in a prison or otherwise;
iii. to prevent the dissemination of views or beliefs that might encourage or induce others to commit any such act or offence, whether in a prison or otherwise, or to protect or safeguard others from such views or beliefs, or
iv. to prevent any political, religious, racial or other views or beliefs being used to undermine good order and discipline in a prison.

So, pending the outcome of the Governments CT strategy review, which was announced by the PM on 4th June last year and is still ongoing, that is where we stand.

Let’s turn to one of the big issues of my first year as IRTL:

Foreign Terrorist Fighters: In the Home Secretary’s words in her published response to my predecessors final annual report, the response being received in July 2017: ’UK-linked individuals who travel to fight in Syria and Iraq pose a clear threat to our country’s security, and we continue to work at a national and international level to mitigate the risk they pose.’ ‘For those who nonetheless still aspire to travel to the region and engage in terrorism-related activity we have a range of tools to disrupt their travel and to manage their return. This includes using the Royal Prerogative to remove passport facilities, using Temporary Exclusion Orders to manage their return, or when they are in the UK imposing travel restrictions and other measures through Terrorism Prevention Investigation Measures. Anyone who returns from the region must also expect to be examined by the police to determine if they have committed criminal offences, and there have already been several successful prosecutions for those who have returned. Whether or not returners are prosecuted, we will take further action to understand and mitigate the risks they pose. This could include providing intense monitoring and psychological support through a de-radicalisation programme.

Pausing here, it is right to acknowledge that I have received  criticism for daring to suggest that not all who return from Syria or Iraq will end up facing prosecution in our criminal courts. When I pointed out this fact, being nothing more than I have just read out from the Home Secretary, some newspapers inaccurately reported that I had said that no returning jihadi should  be prosecuted. That is not what I said. I maintain an Independent Reviewer website on which you can read what I have actually said, so please check there.

I am very clear that we need a range of legal mechanisms to deal with those who return from conflict zones. Criminal prosecution, whilst inevitable for any and all who are found to have committed criminal offences whilst abroad, is not the only solution to a complex problem. We need flexible and creative solutions in this vital area. By and large, it remains my view that the legislation  and policy solutions are already in place, and the Home Secretary’s words which I have just quoted confirm as much. So new laws are only necessary as a last resort.

Now a brief return if I may to threat levels.

It is interesting to note that the UK threat level was elevated from Severe to Critical twice only last year, namely for a period of approximately 48 hours very shortly after the Manchester Arena attack, and for a like period after the discovery of a partially-detonated explosive device on a London Underground train at Parsons Green. 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 the perpetrator 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 – 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. The second elevation of the threat level was for the same reason as in Manchester, namely a police manhunt for the perpetrator of the Parsons Green attack.

The short-term elevation of the UK national threat level from Severe to Critical is not the same as declaring a state of emergency, which would almost certainly require a derogation from Article 15 of the ECHR. We have seen such a derogation elsewhere in Europe, namely in France after the attacks in Paris in November 2015 which included the Bataclan theatre. That state of emergency remained in force without interruption for almost exactly two years, in fact until 31st October 2017 when it expired and was not renewed. However, we should note that although the state of emergency in France has lifted, the national Parliament has sought to enact many of the emergency provisions, therefore ‘normalising’ what were introduced as emergency measures. That is the subject matter for an entire lecture on its own…

So what is the new threat, in the world as we find it in 2018?

Both in this country and in parts of mainland Europe in particular, we have been seeing a move away from the use of Improvised Explosive Devices (IEDs) and the slightly more ‘sophisticated’ attacks of the past decade, and to the emergence of ‘lone actors’, deploying low-cost, low sophistication attacks, often after they have been exposed to online propaganda and/or radicalised online. This has been accompanied by, even enabled by, the rapid and recent expansion in online communications platforms, which are now used by terrorists. Not so many years ago, those planning terrorist attacks were still using text messages or Blackberries, they were meeting in person in each others homes, in local open spaces, and during shopping trips for the everyday items they needed to make the IEDs they planned to deploy. And, equally important, there would usually be clear influence exerted over would-be terrorists by radicalisers or trainers, those who spent time with their acolytes inspiring them to take life and even to end their own life in so doing.

A significant threat indeed.

But, as the statistics for 2016 show, almost all of these attacks (in the UK at least) continued to be successfully detected and disrupted by the Police and security services. Even during 2017, we must remember that more terrorist plots were disrupted than those which ‘got through’ undetected. When the evidence comes to court, we have seen many examples of young men – mostly they are young men – who have moved from a basic understanding and adherence to their religion, to an extreme, radical understanding of what are said to be religious tenets justifying murder. What they claim to do in the name of religion is actually born from an absence of real understanding about the nature of the religion they claim to follow. But the point is that radicalisers just a few years ago would suborn these young men, often rootless young men prone to casual criminality, and brainwash them into a plan for action. That still goes on. But we are now seeing something comparatively new, running alongside.

Whilst we are still coming to an understanding of the full facts of the  2017 attacks in London and Manchester, indeed I think we will be scrutinising and learning lessons from those awful events for some time to come, it seems that some of those who committed terrorist murders on our streets may have reached their murderous state having been influenced by what they read and what they see online, just as much as by whom they meet. It is this element of ‘remote radicalisation’ which is acutely difficult to spot.

Where these awful crimes are facilitated by the use of social media, we all 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. So this is about our rights, not terrorists rights. To go further, would we risk unenforceable infringements on ECHR rights, and/or would we push the current abundance of evidence proving terrorist activity online to go offline or underground, into impenetrable places within the dark web from which clear evidence rarely emerges, and where the placement of a robust counter-narrative to terrorism is hard to effect and harder to gauge?

This is uncertain territory. Driving material, however offensive, from open availability into underground spaces online would be counter-productive if would-be terrorists could still access it. And once this material goes underground, it is harder for law enforcement to detect and much harder for good people to argue against it, to show how wrong the radical propaganda really is.

Solutions need to be found, and are being found. The global internet forum is working hard to discover and to databank known extremist propaganda, so that all internet providers may use the databank to rid their platforms of such material.

In the UK, the CTIRU (counter terrorism internet referral unit) reports that the average takedown time of extreme material by an internet platform on receipt of a CTIRU police request is less than one hour.

And we heard recently about new software which we are told is capable of detecting violent extremist content with high accuracy.

All of this is welcome. I have spoken at several conferences urging tech companies to do more to help in this effort, and they have responded, not to me so much as to government and other bodies who come together in the fight against online crime. I fully support all of that work.

In addition to all of this, can we legislate to rid ourselves of online terrorism? My answer is that Parliament has already done so in meaningful ways including such offences as the dissemination offence under section 2 of the 2006 Act. I go no further for the purposes of this evening, because we await the outcome of the Government’s counter-terrorism strategy review which has been ongoing during the second half of  2017, and which has I am sure been looking to see whether any amendments might hone existing offences given recent technological advances. I am confident that the review is also considering whether sentencing provisions in 2018 are apt for our changing world. I repeat something I have said and written many times during the last 12 months; by and large, we have the legislation we need to deal with terrorism in every modern form.

Threat from Northern Ireland-related terrorism

The Security Service (MI5) has assessed the threat level in Northern Ireland from Northern Ireland related terrorism to be Severe, meaning that a terrorist attack is highly likely. In May 2016, the threat level in the UK for terrorism related to Northern Ireland was raised from Moderate to Substantial, which means an attack is a strong possibility.

The PSNI has recorded that, ‘compared to the preceding ten years between 1996/97 and 2005/06, the level of security related incidents in Northern Ireland has been lower and has remained relatively consistent during the past decade. During 2015/16, the number of shooting incidents that occurred was the lowest since records began in 1969. This is reflected in the number of casualties from paramilitary style shootings which were at their lowest since 2007/08. However, a significant threat still remains as evidenced by the increased number of security related deaths and paramilitary style assaults over the past two years and the continued number of bombing incidents.’ The attack methodologies and capabilities used by Dissident Republican (DR) groups in Northern Ireland in 2016 included firearms or small IEDs such as pipe bombs but they have also employed larger and/or potentially more destructive devices such as vehicle-borne IEDs (VBIEDs) and explosively formed projectiles (EFPs) and all groups retain access to a range of firearms and explosives; there is an ever-present threat of under-vehicle IED attacks. I spent a week in Belfast last month. Amongst a wide range of meetings and events, I went to the relevant part of PSNI to be given a presentation on the use of EFPs. They represent a significant element of the threat, which is ever-present, and which is faced every day by, in particular, PSNI officers, prison officers, and even probation officers. And this is 20 full years after the Good Friday Agreement.

Between 1 January 2015 and 31 December 2016 the PSNI recorded 6 security related deaths (all of whom were civilians); 49 shooting incidents and 27 bombing incidents; 0 incendiary incidents; 64 casualties as a result of paramilitary style assaults (mostly Loyalist) and 20 casualties resulting from paramilitary style shootings (almost all Republican).

Threat from other terrorism

The undoubted increase in the activity of right wing extremist groups in the UK is reflected in the rise in the number of arrests over the last year relating to members of such groups.

In 2016, this threat was brought into focus following the murder of Jo Cox MP by Thomas Mair on 16 June 2016. During the course of the murder Mair was heard by a number of witnesses to say repeatedly “Britain First”, “Keep Britain independent”, “Britain will always come first”. Mair was charged with Murder and sentenced to Life Imprisonment. The murder undoubtedly fell within the definition of ‘terrorism’ as set out in section 1 Terrorism Act 2000.

In December 2016 the UK proscribed the group National Action, being perhaps the most active and well organised right wing group in this country. This is the first right wing group to be proscribed in the UK since wartime. The explanatory memorandum states that National Action is a racist neo-Nazi group that was established in 2013, and the allegations against it are based on promoting or encouraging terrorism rather than direct involvement in violence (section 3 of TA 2000, as amended by the TA 2006).

We should all be alarmed by statistics collected by the Home Office which show a number of sharp increases or spikes in racially or religiously aggravated offences. They occurred in May 2017 (the Manchester Arena attack) and June 2017 (London Bridge / Borough Market and Finsbury Park Mosque). What is troubling is that the rise in such crimes does not seem to return to the same baseline after each spike. In August 2017, the number of racially or religiously aggravated offences recorded by the police was just under 5,000 compared to just over 3,000 in January 2016.

So I have attempted to describe the current landscape, from multiple perspectives. Where does all of this leave our terrorism legislation?

As I suggested earlier, Operation Classific, the investigation into the Westminster Bridge attack,  amounted to what in my view was an impressive, flexible, fast-moving investigation which appeared to face significant challenges, but which reached fruition over several days, where a longer exercise might have been understandable or expected. From initial slim pickings, namely sparse evidential capture from the few belongings left behind by Masood when exiting his hired vehicle on Palace Green, a command structure was in place within a very short period of time, and the interoperability of geographically remote police teams proved its worth. Coordination between London and Birmingham in particular was rapid and effective. Further, it must be remembered that this urgent work was undertaken without any current intelligence information (because Masood was a ‘closed SOI’). Further, the physical context of the murderous terrorist attack in the heart of political London meant that literally thousands of individuals were contained in the Palace of Westminster and Westminster Abbey, any number of whom were potential witnesses to what had occurred. To this number must be added all pedestrians and motorists in the vicinity of Westminster Bridge and on both sides of the Thames embankment as the attack unfolded over 82 sickening seconds. Therefore, in compiling my report I accorded a wide margin of appreciation to the police team under their SIOs. And I did not find the police wanting, nor the terrorism legislation which they used.

So the immediate future, looking into my second year in post, is more of the same in terms of investigation, in terms of the successful disruption of attack planning, and in terms of the use of the legislation which I review.

It is my privilege to have moved from long experience prosecuting terrorism cases into the wider arena of reviewing the legislation and discussing it far and wide, here and abroad, with all who have a legitimate view on our laws. For all the tribulations of 2017, we still have a legal system, and an investigative network which is rightly the envy of the rest of the world. Long may that continue. Nothing is perfect, and I will continue to offer what constructive criticism I can, in the interest of improving our legislation whilst maintaining the necessary balance between security and rights. Thank you.