In this essay I will explore the provisions introduced by the Terrorism Act 2006 and assess whether these pose risks which may overshadow any security benefit. As the main critiques of this legislation focus on the section 1 offence of encouragement of terrorism and the section 23 extended detention period for terrorist suspects, these two provision shall be the subject of this essay. I will demonstrate that the provisions of extended detention and the encouragement of terrorism raise issues with regard to freedom of speech and breaches of various ???. I will show how the implementation of previous terrorism provisions have broken the trust between minority, especially Muslim communities and the British Government. These new provisions may pose to further alienate these communities, the very communities with whom a flow of information is vital to reduce the risk of terrorism.
The Terrorism Act 2006 did not pass with ease and human rights and civil liberties groups were the most vocalised opponents (Parker, 2007, p. 749)
The most controversial aspect of the Act was the proposed increase in the detention period for suspects without charge from 14 days to 90 days. The government argued that police and intelligence services required the extension due to the complexities of modern terrorism and the evidence gathering process (Hewitt, 2008, p. 54), however MP’s from all parties remained unconvinced and rejected the plan, accepting a 28 days period instead. The normal detention period without charge in the UK for committing a criminal offence such as murder is 4 days and for a terrorism offence this is 7 times longer. Can this really be justified?
In support of this compromise the Select Committee on Home Affairs stated that although ‘current and recent investigations have gone sufficiently close to 14 days to show that an extension… is justified’ ‘none of the evidence… would have justified a maximum detention period longer than 28 days'(select committee:para34/35 conclusion).
Concerns have however been raised. Although the civil liberties and human rights group, Liberty, welcomed the acceptance that provision needed to be made to ensure the health and well-being of suspects in detention, they expressed concern over the psychological effects and the danger of those who are detained to make false confessions as they may perceive that the short-term benefits outweigh the long term consequences (Liberty:para12). Amnesty International agree with this claim (amnesty international: 45) and it is possible that these confessions may be deemed inadmissible by any court, making the extended pre-charge detention worthless. Amnesty International also draw our attention to the international treaties which require the UK to charge promptly, all people detained in connection with a criminal offence and that they are tried within a reasonable time (Amnesty international: 45) ,therefore the extended detention may be in breach of these treaties. On the other hand the need for detention is always validated by the judiciary as any detention past the first 48 hrs must be authorised by a judicial authority.
Article 20 (2) of the International Covenant on Civil and Political rights requires states to prohibit any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence and Article 5 of the Council of Europe’s Convention on the Prevention of Terrorism requires member states to criminalise the unlawful and intentional public provocation to commit a terrorist offence. The Government implemented these through section 1 of the 2006 Act however this has also been highly criticised. This provision ‘applies to a statement that is likely to be understood by some or all of the members of the public to whom it is published as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism or convention offences’.
As this implements the definition of Terrorism provided in the Terrorism Act 2000, ‘terrorism’ covers the use or threat of action which satisfies three conditions (1) the action involves serious violence against a person or serious damage to property, endangers a person’s life (other than the person committing the action), creates a serious risk to the health or safety of the public or a section of the public, or is designed seriously to interfere with or seriously to disrupt an electronic system; (2) the use or threat of action is designed to influence the government or an intergovernmental organisation or to intimidate the public or a section of the public; and (3) the use or threat is made for the purpose of advancing a political, religious or ideological cause. Using this definition, the UK offence is much wider than the required ‘terrorist offences’ and this has been criticised by the Council of Europe for carrying a ‘considerable risk of incompatibility with the right to freedom of expression in Article 10 ECHR’ (pg 14). This definition is also over encompassing as the 2000 Act deals with actual terrorist acts however the 2006 Act applies to statements regarding such terrorist acts and an additional definition should have been provided. The Mayor of London has argued that as the ‘definition of terrorism is broad enough to encompass almost any form of legitimate protest… the Government may use it as a political tool on whomever it chooses’ (JCHR from Ellen p751).
It has been argued that ‘existing prohibitions on incitement to violence, and other similar crimes, already presented the authorities with the tools to address the sorts of dangerous speech’ (Hunt, 2007) the Government were targeting. Britain has previously convicted, Sheik Faisal, an Islamic minister who encouraged young Muslim men to wage war against those who do not follow the Islamic faith, for soliciting murder under the Offences Against the Person Act 1861 and racial hatred under the Public Order Act 1986 (R v El-Faisal). The notorious Abu Hamza al-Masri has also been convicted under the same two Acts for glorifying and encouraging terrorism. Although neither of these men actually committed any violent acts, pre-existing laws allowed his conviction for speech encouraging terrorism.
Whether ‘an organisation that advocates for an independent Palestinian State, and vocally supports resistance where non-violent means for achieving a just arrangement have failed’ (Chong & Sentas, 2006, p. 8) falls within indirectly encouraging is of course open to interpretation as adopting the literal approach to construction it would be, however only the criminal justice system can decide this in the future. This uncertainty may also have an effect on ‘Muslim community groups who wish to express their solidarity with the Muslims who live under oppressive regimes or… occupying forces’ (Chong & Sentas, 2006, p. 8).
Subsection 3 enables the indirect encouragement of terrorism to include a statement which ‘glorifies the commission of preparation’ of terrorist acts if from this statement ‘members of the public could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated by them’ even though the ??? have recommended that vague terms such as glorifying or promoting terrorism should not be used when restricting expression (short, 43). The House of Lords previously twice rejected this provision and Walker (2006) draws our attention to the ‘furious debates about whether this offence might criminalise anyone who glorified the armed opposition to the Apartheid regime of South Africa’ and provides the example of Nelson Mandela (Walker, 2006, p. 1140), would people really regard him as a terrorist? Many major Muslim groups regard Hamas and Hizbollah as ‘legitimate resistance fighters’ (Spalek & Lambert, 2007, p. 265) and this legislation may place members of these groups in the same faction as terrorists.
The European Court of Human Rights in the case of Karatas v Turkey held that a general prohibition of glorification of violence cannot be justified and only those statements said to actually incite violence may be prohibited. In this case the complainant had been convicted for publishing poetry that glorified acts of terrorism. The Court accepted that violent terrorist attacks occurred regularly in Turkey however even in this context the conviction constituted a violation of the right to freedom of expression. This casts great doubt on whether this prohibition is in accordance with Human Rights.
Section 4 explains that ‘how a statement is likely to be understood’ and ‘what members of the public could reasonably be expected to infer from it’ should be determined by looking at both the ‘content of the statement as a whole’ and the ‘circumstances and manner of it publication’ however the Islamic Human Rights Commission as claimed that ‘certain statements made by Muslims will be regarded as “glorification” due to its delivery to a Muslim audience; similar comments made by members of other communities will not be held to the same standard” (from Assessing damage 130). A possible example of this is seen in calls for Cherie Booth, wife of Tony Blair, to be prosecuted for stating that ‘in view of illegal occupation of Palestinian land I can well understand how decent Palestinians become terrorists’ (Walker, 2006, p. 1140) and some people may even have see George Bush and Tony Blair praising the actions of the coalitions troops in Iraq as the glorification of terrorism (MAKING BAD LAW WORSE) if they are opposed to the occupying coalition forces.
It has been argued that ‘vague definitions of crimes are in violation of international provisions which require that individuals should be able to foresee whether behaviour is criminal or not’ (Jurists International Commission of, 2009, p. 129) however the Government have justified their implementation by arguing that they were merely ratifying the Council of Europe Convention. The offence of indirect encouragement by glorification has however failed to integrate the requirement of intent to incite as this offence can be committed irrespective of the intent of the author (Jurists International Commission of, 2009, p. 129/130). The council of Europe have also made this disapproval (council download, 17). This leads to the criticism that ‘these offences run the danger of penalising equivocal actions… (and) leave room for claims of people being victimised for their views or even their stupid curiosity’ (Walker, 2006, p. 1143). Amnesty International believes that this offence may lead to violations to the right to freedom of expression, allowing the criminalisation of citizens for holding opinions. (Amnesty international: 43). I would agree with the International Commission of Juries that ‘it is clear that speech and other forms of expression can incite terrorism, and that it is legitimate to criminalise such activities. Any limitation must, however, respect international law and not limit forms of expression that are merely controversial’ (International Commission of Juries, 2009 p.127). Muslims may avoid talking about terrorist events and political events over seas such as Palestine, Iraq or Afghanistan for fear of falling foul of this legislation. There is concern that such wide ranging laws such as the glorification reduce legitimate political debate, particularly within immigrant and minority communities (Jurists International Commission of, 2009, p. 130). The Government insist that targeting a particular community was neither their intention, nor the result of the “new” offences’ (Jurists International Commission of, 2009, p. 130) however ‘British public officials, members of Parliament… opponents and proponents… have made speeches and comments that clarify terrorist speech by radical Muslims as the target of the 2006 Act’ (Parker, 2007, p. 722) and rejected provision from the Terrorism Bill such as the suggestion that radical mosques be closed provide strong evidence that singling out the Muslim Community was in fact the aim of the legislation.
The notion of ‘community’ is a significant feature of modern criminal justice policy and since coming to power Gordon Brown has modified his language ‘to encourage a “strong consensual approach” to all of Britain’s communities’ (Parker, 2007, p. 732) . The national policing plan 2005-2008 states that the ‘counter-terrorism strategy… is underpinned by strong intelligence processes … and strong communities to build and increase trust and confidence within minority faith communities’ and anti-terror measures actively encourage surveillance within communities with the ‘responsible Muslim citizen expected to work with the authorities to help reduce the risk of terrorism’ (Spalek & Lambert, 2007, p. 258). The representative of the Mayor of London claims that ‘preventing terrorist attacks, relies heavily on intelligence, which can only come from our communities… law that criminalise non-violent behaviour and groups, perceived as unfairly targeting Muslims and stifling legitimate debate, will lead to a breakdown in trust, resulting in a reduced flow of information’ (from assessing damage 130).
This breakdown in trust is already evident due to tools previously implemented by Terrorism Legislation. Figures show that Stop and Search powers introduced by the Terrorism Act 2000 have been used disproportionately against people of an Asian descent (Mythen, Walklate, & Khan, 2009, p. 738) and in fact the Metropolitan Police gave evidence to the parliamentary Home Affairs Committee that these powers had ‘created deeper racial and ethnic tensions against the Police’ (Mythen, Walklate, & Khan, 2009, p. 739) and have ‘trampled on the basic human rights of too many Londoners… (cutting) off valuable sources of community information and intelligence’ (Mythen, Walklate, & Khan, 2009, p. 739). The case of Walter Wolfgang, an 82 year old who fled to Britain as a Jewish refugee from the Nazis and became a peace activist and Labour party member is often cited as a key example of measures which have encroached fundamental rights. During the Labour Party Conference 2005, Mr Wolfgang shouted the word ‘nonsense’ during the Foreign Secretary’s speech about British policy in Iraq and was detained under s.44, Terrorism Act 2000. This illustrates how legislation places limitations upon legitimate expressions of dissent, indeed political dissent which we should all be free to express.
After the introduction of multiple pieces of anti-terrorism legislation, surrounded by the media and political circles focusing upon security from the terrorist threat and often linking this threat with “foreigners” and “Muslim extremists” (amnesty international: 46), Muslims and other minority communities have experienced increasing racism. ‘These discourses have invariably defined British Muslims en bloc as a risky, suspect population, raising the intensity of scrutiny on Muslims… and potentially exacerbating the degree of public suspicion directed towards young male Muslims’ (Mythen, Walklate, & Khan, 2009, p. 740). Muslim minorities, in particular young Muslim men, have been viewed as a ‘problem group’ (Alexander cited in Spalek and lambert:261) by the media, politicians, the security services and other agencies in the criminal justice system. Hazel Blears, the Minister for Counter Terrorism, has even warned that the Muslim community must face up to the fact that police would target them because of the threat from people ‘associated with an extreme form of Islam’ (From amnesty international: 46), however this statement contradicts the Governments previous statement that they never intended to target a particular community.
Something About Further Alienation
The UK has a long history of Terrorism Law and the Terrorism Act 2000 was intended as a permanent and comprehensive piece of legislation, created with the aim of breaking away from the use of emergency legislation, however in the aftermath of the 9/11 and 7/7 bombings and other attempted attacks, terrorism has become a key policy priority. The implementation of Terrorism legislation in 2001, 2005 and 2006 shows that this aim has not been successful and politicians continue to assume that the public are impressed by reactive legislation (Walker, 2006, p. 1140). For centuries, Britain prided itself in its tradition of welcoming those who felt oppressed by their native lands (londonistan article) however the provisions implemented by terrorism legislation are in danger of dividing these communities. There was previously a disproportionate focus on the Muslim Community by the media, Criminal Justice System and intelligence agencies and the provisions introduced through this legislation may create the clearly undesirable, counter-productive result of further alienating minority communities so that they are less likely to assist in effective investigations. I have demonstrated that previous terrorism legislation has contributed to Muslims and other minority communities feeling socially excluded and disproportionately targeted. From the events of 7th July we can see that the UK has a home grown terrorist problem and that ‘young Muslim men are willing to turn their backs on the country in which they were born and commit heinous acts of terrorism’ (Parker, 2007, p. 731) however we must remember that ‘Muslims were amongst the casualties in the atrocities of 7th July, and the authorities cannot combat terrorism without the confidence and trust of Muslims’ (select committee: para 38). The extended detention and encouragement provision have the potential to further alienate Muslims, resulting in the radical Islamic factions going ‘under ground’ as there the flow of information from these communities is further constricted.
In the case of A v Secretary of State for the Home Department, Lord Hoffman stated that ‘the real threat to the life of the nation… comes not from terrorism but laws such as these’ (United Kingdom House of Lords Reports, 2004). This signals that the greatest challenge may be maintaining the trust of the public by embracing multi-cultural values alongside a legal system which enables citizens to live a life safe from violence but which also values human rights.
These provisions do not however only effect Muslims and the limitation placed upon fundamental rights …
Freedom of speech: we may question whether the glorification clause should have remained but also whether the new offence of indirect encouragement was at all necessary considering that the United Kingdom already have the offence of incitement to murder and the recently added offence of incitement to Terrorism created under the Terrorism Act 2000.
I have demonstrated how these provisions severely limit free speech and expression and may be in breach of ‘Terrorism policies have created an “us and them” approach and have alienated those groups whose support is essential for the success of counter terrorism action’. (Arnold, 2009, p. 14).
Further breaches may occur as the Select committee: longer may be needed in the future.
Article 19
Still, although it remains virtually unused thus far, the 2006 Act remains a viable tool for British law enforcement authorities to begin using at their discretion.
1.6 Million Muslims, 3.1% of the population, is second most popular religion. (MCB website stats)
Lord Carlile, known for his support of civil liberties, and an unlikely supported of such legislation has stated that the introduction of the Encouragement to Terrorism offence is proportional to the threat addressed (Parker, 2007, p. 746)
(R v El-Faisal) [2004] EWCA (Crim) 456