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Clause 1: Encouragement etc. of Terrorism

Human Rights Watch remains seriously concerned about the new criminal offence contained in clause 1, despite amendments introduced during consideration of the bill in the House of Commons. Under the clause, it becomes a criminal offence for a person to intentionally or “recklessly” publish a statement which is likely to be understood “as a direct or indirect encouragement or other inducement” to commit a terrorist act. The offence carries a sentence of imprisonment of up to seven years on conviction. The bill makes it clear that statements likely to be understood as encouraging terrorism include those that “glorify” terrorist acts, when members of the public hearing the statement would understand “what is being glorified as conduct that should be emulated by them.”

In considering any proposed new speech-related offence, it is important to recognize the special status enjoyed by freedom of expression under both the ECHR and ICCPR, particularly as it is seen as a prerequisite for the enjoyment of many of the other rights and freedoms. As the European Court of Human Rights (ECtHR) has said:

Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment.⁹

And the United Nations Human Rights Committee, the body which supervises state compliance with the ICCPR, has emphasized in its General Comment on freedom of expression that “when a State party imposes certain restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself.”¹⁰

As a consequence, any proposed restrictions must be subjected to close scrutiny to determine whether they are both “necessary” and “proportionate”, requirements for limitations of the right under article 10(2) of the ECHR. According to the ECtHR, the question of whether a restriction on free speech is “necessary” must be convincingly established.

Not shown to be necessary 

The government has sought to justify the introduction of the new offence by arguing that it is a requirement for ratification of the Council of Europe Convention on the Prevention of Terrorism.¹¹ The convention requires states parties to “adopt such measures as may be necessary to establish public provocation to commit a terrorist offence…when committed unlawfully and intentionally, as a criminal offence under its domestic law.”¹² Under the Convention, the offence is committed when a public message “with the intent to incite the commission of a terrorist act” “causes a danger” that such an offence may be committed. The message may either directly or indirectly advocate terrorist offences.

In so far as this requires the U.K. to adopt an offence of direct incitement (where the speaker directly advocates violence), there are already a range of existing domestic offences available to cover such conduct and therefore any new offence is not necessary. Some are terrorist-specific, including the offence of incitement of terrorist violence overseas under section 59 of the Terrorism Act 2000 and the offences of inviting or displaying support in public for a proscribed organization under the same Act.¹³ Others are to be found in the ordinary criminal law where the offence of incitement is common—ranging from a general offence of incitement to commit an indictable offence to the offence of incitement to murder.

The fact that the proposed new offence uses “encouragement” and “inducement” rather than “incitement” is solely a matter of linguistics. A commonsense understanding of these words, and the way in which they were variously used in the discussions preceding adoption of the Convention on the Prevention of Terrorism, suggests that they cover the same or sufficiently similar behavior so as to fall within the existing offence of incitement under the 2000 Act.

The Privy Counsellor Review Committee noted in its review of the Anti-Terrorism, Crime and Security Act (ATCSA) 2001 that the difficulties with sustaining prosecutions for terrorism offences in the United Kingdom are primarily related to matters of evidence rather than the gaps in the criminal law.¹⁴ It did not identify the need for a new “speech” offence as is now being proposed. In 2004, the Joint Committee on Human Rights (JCHR) reached a similar view, arguing that the evidential problem in terrorism prosecutions “is unlikely to be helped by the creation of still more criminal offences.”¹⁵ In evidence to the JCHR, the Director of Public Prosecutions said that there is already “an amount of legislation that can be used in the fight against terrorism” and that the existing criminal law “covers a huge swathe of activity that could be described as terrorist.” It is also notable that the Home Office February 2004 consultation paper, Counter-terrorism Powers: Reconciling Security and Liberty in an Open Society, did not itself identify a need for this new offence.

The question of introducing an offence of indirect incitement (where the speaker does not directly advocate violence, but where the speech nonetheless is deemed somehow to be capable of inciting violence) has been the subject of considerable debate. In order for such an offence to be consistent with the Convention on the Prevention of Terrorism, its scope would have to be limited to situations where the speaker is shown to have specifically intended to incite violence.

The government has not shown that the existing offences mentioned above cannot also be used to cover intentional conduct falling within the description of indirect incitement. There is nothing to suggest, for example, that the offence of incitement to terrorism under section 59 of the 2000 Act is limited in such a way.

The government has yet to explain why existing criminal offences are not sufficient to meet the threat posed by speech which incites terrorist acts. In this context it has also not produced evidence showing how existing offences are in fact being used to cover such behavior. For instance, a minister of Islam known as “Sheikh Faisal” was recently convicted of offences of soliciting murder under section 4 of the Offences against the Person Act 1861 and the public order offence of racial hatred. He was accused of creating a number of inflammatory audio tapes urging Muslims to fight and kill, among others, Jews, Christians, Americans, Hindus and other “unbelievers.”¹⁶ Sheikh Abu Hamza has been charged with similar offences, including solicitation to murder of non-Muslims and incitement to racial hatred.¹⁷ Both prosecutions suggest that existing law is sufficient to cover speech that incites violence.

Unclear mental requirement for commission of the offence

An immediate problem arising from the measure is whether a person could commit the offense of “encouraging terrorism” without realizing it. As drafted, the proposed criminal offence appears to apply not only where the speaker either (i) intended to incite terrorism or (ii) knew that terrorism was likely to be incited by his or her actions but took the action anyway, but also (iii) wherever a reasonable person would conclude that the statement was likely to incite terrorism, regardless of what the speaker intended.

The amended bill defines “recklessness” in clause 1(3) as follows:

For the purposes of this section the cases in which a person is to be taken as reckless as to whether a statement is likely to be understood as mentioned in subsection (1) include any case in which he could not reasonably have failed to be aware of that likelihood.

The use of the term “include” suggests that its application may not be confined to cases where the speaker knew that his words were likely to incite terrorism, but could also apply to situations where the speaker was unaware that his words would have that effect.  

It is important to reiterate that under the Council of Europe Convention on the Prevention of Terrorism, to which the new offence is intended to give effect, acts that constitute “provocation to commit a terrorist offence” should only be criminalized if committed “intentionally.” ¹⁸

There is a strong argument that the offence as drafted is an overstretched interpretation of the requirement, in that it does not require intent to incite the commission of a terrorist act, even if “intent” is understood in its broadest sense to include those situations where a person knows that the commission of a terrorist act is likely to be the result of his or her speech.

Offence lacks legal certainty

Human Rights Watch believes that the draft offence is so vaguely worded that it will not be possible to determine what behavior constitutes the offence. It therefore violates the well-established principle that laws must be of such certainty and legal precision that people are able to regulate their conduct to avoid infringement. This principle of legality, enshrined in article 7 of the ECHR (and therefore into U.K. law through the Human Rights Act) was emphasized by Council of Europe Commissioner for Human Rights Alvaro Gil-Robles in his comments on draft article 5 (then article 4) of the Convention on the Prevention of Terrorism. He said that “if the Article were incorporated as it stands in the States Parties’ domestic law, it would be particularly difficult to predict the circumstances in which a message would be considered as public provocation to commit an act of terrorism and those in which it would represent the legitimate exercise of the right to express and idea or voice criticism freely.”¹⁹

The inclusion of “glorification” as a form of indirect incitement is particularly worrying in this context. The term “glorification” is most often used in the context of apologie du terrorisme offences. This category of offence was addressed in a study by the Council of Europe Committee of Experts on Terrorism (CODEXTER) used to inform the negotiations leading to the Convention on the Prevention of Terrorism. The Committee examined the incidence and experience of national provisions criminalizing the public expression of praise, support, and justification of terrorist crimes in order to analyze the potential risk to free expression posed by such offences. The survey indicated that only three countries in Europe (Denmark, France and Spain) have such an offence.

A number of countries that participated in the survey acknowledged that the risk of infringing legitimate free expression makes criminalizing “apologie du terrorisme” an especially difficult task. The Netherlands in its reply explicitly states “apologie du terrorisme is not a specific criminal offence at this moment, nor is the creation of such an offence envisaged since that would seriously infringe the constitutional freedom of expression.”²⁰

The case law of the European Court of Human Rights provides a further illustration of the difficulty of seeking to limit language that does not directly advocate violence, without restricting legitimate free expression. In a series of cases, the court has held that speech criticizing democracy and calling for the imposition of Sharia law, for example, ²¹ or containing separatist propaganda,²² cannot legitimately be subject to restriction provided that it does not incite violence.

Overly broad

The new offence is overly broad. It relies on the definition of “terrorism” in the Terrorism Act 2000, which includes the use or threat of action including “serious damage to property” that is “designed to influence the government or to intimidate the public or a section of the public,” and “made for the purpose of advancing a political, religious or ideological cause.”²³ As written, the definition encompasses far more than obvious terrorist conduct such as participating in bombing and hijacking, and could be read to apply to certain sorts of industrial action or unauthorized public demonstrations which cause significant economic loss.²⁴ It has therefore the potential to apply even to many forms of non-violent direct action, which would not be understood as “terrorism” in the conventional meaning of the term. The potential application of the offence to speech that “encourages” acts that fall outside the conventional understanding of the term “terrorism” raises serious free expression concerns.

No causal link to violence required

Under the Convention on the Prevention of Terrorism a statement should only be subject to criminalization where it “causes a danger” that a terrorist act might be committed. This establishes the importance of a causal link between a statement deemed to be provocative and the act that is to be prevented.

As presently drafted in the Terrorism Bill, the required causal link is simply that “members of the public” to whom a statement is made “are likely to understand” it as an encouragement to a terrorist act. There is no need to show that any person is in fact so “encouraged” by the statement. Causality is further attenuated in that “members of the public” can include anyone in the world.

As such, the causal link in the new offence fails the imminence test set down in the 1996 Johannesburg Principles on National Security, Freedom of Expression and Access to Information. Principle 6 requires that there is a direct and immediate connection between the expression and the likelihood of such violence occurring.²⁵

Chilling effect on free expression generally

As a line of cases before the ECtHR confirms, it is essential for any democracy to ensure that controversial or shocking ideas, including criticisms and points of view be neither inhibited nor prohibited.²⁶

The proposed legislation, however, casts a wide net and can be expected to curb a considerable amount of such speech. It is worth noting that statements made by journalist John Pilger during a 2004 television interview in Australia—indicating that the resistance to U.S. forces in Iraq is legitimate and desirable—arguably fall within the range of speech prohibited by clause 1.²⁷ Whatever view one has about those statements, it is difficult to avoid the conclusion that Pilger’s opinions may be seen by some as precisely the sort of “shocking ideas” that the European Court thinks merit protection.

In this context it is perhaps worth repeating the paradox raised by Douglas Hogg MP in the debate in the House of Commons: “...on the one hand, it appears that it is proper for Governments to wage war to procure regime change in Iraq, whereas on the other, if we recommended the citizens of Iraq should have risen up to destroy Saddam Hussein, we could be prosecuted in this country for doing that.”²⁸

There is always a danger that laws that criminalize speech will have a chilling effect on free expression generally, creating self-censorship and inhibiting political discourse, including criticism of the government. The media, universities, schools, mosques and other places of worship, are all likely to be affected by the measures. This runs directly contrary to the fact that public debates based on free and unhindered dissemination of ideas and opinions are an important way of countering radicalism (“sunlight is the best disinfectant”) and promoting understanding and tolerance with the overall aim of preventing terrorism. And while there is little or no evidence that criminalizing such speech will deter terrorism, there is very strong evidence that it will deter free expression.

The prospect of self-censorship on the part of the media is particularly worrying. It could mean, for example, that material that is freely transmitted in other European countries or anywhere else in the world would not appear on U.K.-based broadcasting services. This could lead to consequences similar to those arising from the 1988 ban forbidding the broadcasting of statements made by members of Sinn Fein. Not only did the media render the ban something of a farce by using actors to speak the words instead, it also reflected extremely badly on the UK internationally. John Simpson, a journalist with the BBC, complained in 1991 that the Iraqi government was using the example of the ban to justify its own censorship.

Counterproductive 

With all of these measures, unless it is convincingly shown that they are necessary and fair, there is a danger that the very communities whose support is needed in the fight against terrorism will be alienated. This is particularly so in the case of the Muslim community. A recent report by the “Preventing Extremism Together” working groups underscores this concern. The working groups, containing many prominent British Muslim leaders, were established by the Home Office after the July 7 London bombings.²⁹ In the report, the working group on community security expressed “particular concern” about proposed counter-terrorism measures, including those related to speech:

[T]he proposal on “inciting, justifying or glorifying terrorism,” as currently formulated, could lead to a significant chill factor in the Muslim community in expressing legitimate support for self-determination struggles around the world and in using legitimate concepts and terminology because of fear of being misunderstood and implicated for terrorism by authorities ignorant of Arabic/Islamic vocabulary—e.g., a speech on “jihad” could easily be misunderstood as “glorifying terrorism.” This would not only result in an inappropriate restriction around the practice of Islam but also its development in the present context. The deficiencies in the proposed legislation can be demonstrated by the fact that there is a general perception that there is an extremely thin line between empathising with the Palestinian cause, for example, and justifying and condoning the actions of suicide bombers, a point highlighted by Cherie Blair during a speech in Jordan in 2004 for which she was publicly accused by Israel of “condoning” such bombings. It is not a line that can be drawn with any legal certainty.

At the same time, as part of a formal recommendation, the working group made it clear that the government must consult widely, particularly with the Muslim community, on any further anti-terrorism provisions. As the working group emphasized: “The UK must lead on and not unilaterally derogate from international principles and standards of human rights.” Ifath Nawaz, the deputy convenor of the community security working group said on publication of the report: “There is huge concern about the anti-terrorism legislation—that it is excessive and is going to drive people underground. We ask for a dialogue to be opened up with the community.”³⁰