Navigating Legal Grounds

PART A

This essay discusses critically the proscription charge against David and discusses whether he may be able to overturn any possible conviction under the charge.

The Terrorism Act 2000, Section 3 gives the power to the Home Secretary to proscribe an organisation that they believe is “concerned with terrorism”. The proscription powers have been considered to be necessary for making UK an hostile environment for terror organisations. In order to proscribe an organisation, the Home Secretary would review whether the organisation is involved in acts that come within the definition of terrorism in Section 1 of the Terrorism Act 2000. The issue with regard to David’s proscription order can be said to be that he refuses that he knew that Nature First was proscribed. It is to be noted that it is Environment First that was proscribed. Moreover, Nature First has denounced violent activities eight years ago.

This raises the question of whether the proscription order is proper. In this context, the decision of Secretary of State for the Home Department v Lord Alton of Liverpool, becomes relevant because in that case it was held that if the proscribed group which had given up these activities many years ago, then it was not “concerned with terrorism” and therefore there was no longer a justifiable reason as to keep the group proscribed. In such cases however, the Secretary of the State will de-proscribe the organisation as per Section 5 of the Terrorism Act. However, in this case such de-proscription does not appear to have been made, only the name of the group has changed to Nature First.

1. Clive Walker, Terrorism and the Law (Oxford University Press 2011).
2. Helen Fenwick, Civil Liberties and Human rights (4th edn, Routledge-Cavendish 2007) 1381.
3. Jacob Tron, ‘The law relating to Proscription of terrorist organisations as set out in the Terrorism Act 2000’ (2019) 1(2) The Student Journal of Professional Practice and Academic Research 39.
4. Secretary of State for the Home Department v Lord Alton of Liverpool and others [2008] EWCA Civ 443.

Terrorism Act 2000, Section 3(5) outlines four criteria that can indicate a group is concerned in terrorism so as to be proscribed which are participation in acts of terrorism, preparing for terrorism, promoting terrorism, or otherwise concerned in terrorism. Under Terrorism Act 2006, “unlawful glorification” of terrorism is also a ground for proscription. Section 21 of the Terrorism Act 2006 includes for the purpose of proscription an organisation that does unlawful glorification of terrorism or an organisation whose activities are carried out in a manner that ensures that it is associated with statements containing unlawful glorification of terrorism.

In this situation, the recent series of tweets from the group’s Twitter account become relevant because these can be understood to be akin to celebrating the actions of a German environmental group that burned down a new luxury housing development which was being built on a site that is equivalent to a greenfield site in the UK. These statements can become relevant to the decision of the authorities to issue proscription orders for people who are associated with the Nature First group although a question would be whether this would be appropriate considering that Nature First is not a proscribed organisation under Schedule 2 of the Terrorism Act 2000. In this regard, Section 22 of the Terrorism Act 2006 becomes relevant.

Section 22 relates to proscribed organisations that may not be able to avoid the proscription regime by changing their names because the new procedure inserted into the Terrorism Act 2000 by this section, allows the Secretary of State who believes that an organisation that is listed in Schedule 2 is operating under a name that is not specified in Schedule 2, but under a different name to be proscribed in the same way if this organisation is in effect the same as a listed organisation. In this situation, after David is arrested, it is discovered that Nature First is not listed in Schedule 2 of the Terrorism Act 2000; rather ‘Environment First’ which historically was the same as Nature First is listed. The question may be that Nature First is splintered from Environment First or that it is the same organisation with a different name or it may be a sub-group of Environment First. In R v Z, where the defendants were members of an organisation called ‘Real IRA’ and were convicted for being members of proscribed organisation, the defendants had argued that they were not members of the proscribed IRA and that Real IRA had not been proscribed by the government, their appeal was dismissed on the ground that the law is aimed at preventing a mischief and had also recognised that organisations are prone to splintering. The court accepted that membership of sub-groups of proscribed organisations is also caught within the law.

Therefore, David may not be able to challenge his arrest on the basis that Nature First is not proscribed and is different from Environment First because the court may see it as a sub-group of Environment First. Additionally, the tweets celebrating the actions of a German environmental group that burned down a new luxury housing development may also lend credence to the argument that Nature First and Environment First are the same organisations or that the former is a sub-group of the latter. It is important to note that Nature First was proscribed 10 years ago but two years after that, Nature First stated it was renouncing violence to achieve its ends and claimed to be a group wholly committed to achieving environmental change through peaceful means. Nevertheless, their cache of arms were subjected to police inspection three years after that statement, and any items that could cause violence were given up and destroyed by authorities. Would that mean that Nature First is not the same as Environment First? Can David challenge his arrest based on this?

1. R v Z [2005] 3 All ER 95.
2. Ibid; David Lowe, Terrorism: law and policy (Routledge 2018).

Section 11(2) of the Terrorism Act 2000 provides a defence against the involvement in a proscribed group, which can be claimed by David. For this, he would have to establish that at the time of joining the organisation the group was not listed in Schedule 2, which is the case here. David will also have to establish that he did not take part in any activities relating to the group while it was proscribed. To conclude, David would have to establish that at the time of joining Nature First, the organisation was not proscribed in Schedule 2 and that he did not participate in any activities relating to the group while it was proscribed.

PART B

Since the decision of the Court of Appeal in Regina (Miranda) v. Secretary of State for the Home Department, the question of what activities may amount to terrorism and whether the definition of terrorism is too wide has come to be one of the important areas of concern. In Miranda as well Lord Dyson made an observation related to the ordinary meaning of terrorism as being an act or an attempt to advance some political or religious cause through violent means; his Lordship also noted that describing newspapers inadvertently revealing the identity of members of the intelligence service or opposing certain government as “terrorism” is inappropriate. He noted that to use the word “terrorism” in this way is to use it in a way that bears no relationship to any ordinary understanding of the concept. This essay argues that the decision in Miranda demonstrates that there is a need to reconsider the definition of terrorism in the counter-terrorism legislation of the UK as this definition may be too wide.

1. Regina (Miranda) v. Secretary of State for the Home Department [2016] EWCA Civ 6.
2. Clive Walker, ‘Investigative Journalism and Counter Terrorism Laws’ (2017) 31 Notre Dame JL Ethics & Pub. Pol'y 129.
3. Regina (Miranda) v. Secretary of State for the Home Department [2016] EWCA Civ 6, para 48.

In the UK, terrorism is defined in the Terrorism Act 2000, Section 1 as the use or threat of action where the action involves serious violence against person or property or endangers a person’s life or creates serious risk to public health or safety or is designed to interfere with or seriously to disrupt an electronic system and the use of threat is designed to influence the government or an international government organisation, or to intimidate the public or a section of the public and the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause. The definition of terrorism is considered to be comprehensive; it is also using both inductive and deductive approaches to provide a more general definition of terrorism by linking the acts with the motivations of the actor. An inductive approach is related to defining categories of offences that can be classified as terrorism, and the deductive approach is related to the formulating of a generic definition of terrorism into which different offences relating to terrorism can be included. In Section 1, a generic definition is provided by providing a wider definition linked to motivations of the terrorist and specific or inductive approach is taken for also classifying as certain acts as terrorism, such as, seriously disrupting an electronic system.

The question is whether the definition of terrorism in Section 1 is too wide. Reference can be made to the Miranda decision in this context. The facts of the case can be briefly considered first. Miranda was detained at the Heathrow Airport in August 2013, Miranda when he was transporting computer materials supplied by Edward Snowden to journalist Glenn Greenwald for an investigative report being written for The Guardian newspaper. These computer materials were seized during Miranda’s detention. The MI5 contended that Miranda was involved in ‘terrorism’ as defined by Section 1 of the Terrorism Act 2000 on the ground that his mission was aimed at influencing the government by promoting a political or ideological cause related to ethical issues involved in government surveillance. These grounds were used to justify Miranda’s detention. One of the questions before the Court of Appeal in this case was who qualifies as a ‘terrorist’ and whether certain journalistic activities should be excluded from definition of terrorism.

1. Ibid.
2. Paul Wilkinson, Terrorism versus Democracy, The Liberal State Response (Routledge 2006) pp. 2-3.
3. Geoffrey Levitt, ‘Is Terrorism Worth Defining?’ 1986 (13) Ohio N.V.L. Review 97.

That the definition of terrorism under Section 1 of the Terrorism Act 2000 is wide is also accepted by the Supreme Court in the UK, with the court holding that despite there being some “undesirable consequences of the combination of the very wide definition of ‘terrorism … it is difficult to see how the natural, very wide, meaning of the definition can properly be cut down by this Court.” Therefore, it may be noted at the outset that there is some judicial agreement on the point of the UK definition of terrorism being wide and having some undesirable consequences attributable due to this reason. Some concern regarding this is that a person may be guilty of an act of terrorism even where unintentionally or unwittingly committing some act that can come within the scope of the definition. In Miranda, the Court of Appeal has considered the effect of the absence of mens rea by observing that this would mean that “[terrorism] would include activity that is entirely non-violent; is in pursuit of a legitimate and mainstream political cause; may ‘endanger life’ by accident; and where the person may be ‘concerned’ in such activity wholly accidentally or even without knowledge.” Due to this absence of a mens rea component, there have been instances where individual acts have been brought under the ambit of the terrorism definition even when unintended as such; an example is given of a group of protesters who erected a sign to protest about Government policy but inadvertently erected in a way that accidentally endangered the life of a passer-by. Clive Walker argues that there is no need to add mens rea component to Section 1 because it does not really create an offence of terrorism, but only sets off the “basis for pre-emptive action by the police and executive—such as in the proscription of organisations, financial controls and other personal restrictions on suspects, and wide investigative powers for the police” However, it can be argued that as in the case of Miranda these powers can be used to take away journalistic material as well as detain a person for a period of time. These can in themselves be considered as violation of human rights; in Miranda, Article 10 of the ECHR which protects free speech rights is clearly involved.

1. Regina (Miranda) v. Secretary of State for the Home Department [2016] EWCA Civ 6.
2. Ibid.
3. R v. Gul [2013] UKSC 64.

With reference to certain kinds of journalistic activities, predominantly those that fall within the scope of investigative journalism, there is a danger that too wide a definition of terrorism may lead to a hindrance for journalists and come in the way of press freedoms. The European Court of Human Rights has also noted the significance of press freedoms in Castells v. Spain , where the court held that freedom of press is important in a democratic society as it affords the “public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders.” In the context of press freedoms and terrorism, the European Court of Human Rights has (under Article 10 of the ECHR), explained the extent of freedom of press while also drawing a balance with security of the state and propriety of reporting; thus, every journalistic piece is not given the protection of Article 10 rights. This can be seen in the decisions of the European Court of Human Rights in three decisions. In Zana v. Turkey, the press statement by the Mayor sympathising with the Kurdistan Workers’ Party was not protected by Article 10 because it was regarded as likely to exacerbate an already violent situation. Similarly, in Gund¨uz v. Turkey, a press report calling on “one brave man among the Muslims to plant a dagger in their soft underbelly and run them through twice with a bayonet” was held to go beyond what was free speech. In Leroy v. France, a cartoon in praise of the attacks in the United States on the September 11, 2001, was held to go beyond the scope of free speech. The European Court of Human Rights has been clear about not protecting under the free speech rights any kind of publication that seeks to serve as an apologia for terrorist organisations, is a manifestation of support for terrorism or is an incitement to violence and hatred. Journalists or other persons who are involved in disseminating messages praising terror attack perpetrators or in the denigration of terror attack victims or in raising money for terrorist organisations, will not be protected under the established jurisprudence of the European Court of Human Rights. It is submitted that this is a reasonable way of dealing with journalists or other persons.

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1. Regina (Miranda) v. Secretary of State for the Home Department [2016] EWCA Civ 6, [43].
2. David Anderson, The Terrorism Acts In 2014: Report Of The Independent Reviewer On The Operation In 2014 Of The Terrorism Act 2000 And Part I Of The Terrorism Act 2006 (London: TSO 2015).
3. Clive Walker, ‘Investigative Journalism and Counter Terrorism Laws’ (2017) 31 Notre Dame JL Ethics & Pub. Pol'y 129, 149.
4. Castells v. Spain, 236 Eur. Ct. H.R. (ser. A) (1992), [43].
5. Zana v. Turkey, 1997-VII Eur. Ct. H.R.
6. Gund¨uz v. Turkey, 2003-XI Eur. Ct. H.R. 435, [439].
7. Leroy v. France, App. No. 36109/03 Eur. Ct. H.R. (2008).
8. Gund¨uz v. Turkey, 2003-XI Eur. Ct. H.R. 435.

However, the question is where can such persons themselves be labelled as terrorists or having committed an offence of terrorism. There is a thin line between supporting a terrorist cause and being involved in an activity related to terrorism. What Section 1 of the Terrorism Act 2000 does is to define acts of terrorism. However, it would be important to clearly distinguish acts of terrorism from other acts. The statement made by Lord Dyson in Miranda is relevant here, where he notes that the ordinary meaning of terrorism is an act or an attempt to advance some political or religious cause through violent means and that describing newspapers inadvertently revealing the identity of members of the intelligence service or opposing certain government actions, as “terrorism” is inappropriate. Similar statement was made by the European Court of Human Rights in Gerger v. Turkey, that there should be some incitement to violence. In Ozdemir v. Turkey, where the court held that neutral reportage of interviews of terrorist representatives by media professionals will be protected under Article 10 of the ECHR.

In Miranda, the Court of Appeal despite agreeing with the decision of the High Court with regard to the lawfulness of the action of the authorities in detaining Miranda and taking away his computer material, made an important qualification to the High Court decision in respect of the definition of terrorism. The Court of Appeal held that mental element must be met in relation to the element of action within Section 1(2) of the Terrorism Act 2000, meaning that intent or recklessness as to the action must be established.

1. Clive Walker, ‘Investigative Journalism and Counter Terrorism Laws’ (2017) 31 Notre Dame JL Ethics & Pub. Pol'y 129, 131.
2. Regina (Miranda) v. Secretary of State for the Home Department [2016] EWCA Civ 6, para 48.
3. Gerger v. Turkey, App. No. 24919/94 Eur. Ct. H.R. 50 (1999).
4. Ozdemir v. Turkey, App. No. 23927/94, 24277/94 Eur. Ct. H.R (1999).

It can also be argued that the wide definition of terrorism in Terrorism Act 2000 is a breach of the principle of legality, which demands that an offence should be clearly and narrowly defined so as to not unduly violate the rights of those who may be suspected of the offence. With regard to the Miranda case, even if Clive Walker’s argument is accepted that Section 1 did not create an offence of terrorism, but only set off the “basis for pre-emptive action by the police and executive,” it did lead to the detention and examination of the journalist. Although in this case the Court of Appeal did not find that the actions of the police were unlawful, it can be argued that had the actions been found unlawful in some other case, the individual who was detained or examined on the basis of the suspicion of terrorism would have found his rights seriously violated. This would in part be reasonable attributed to a wide definition of terrorism which gives the authorities wide powers. Thus, one of the important objections that can be made to a wide definition of terrorism is that it allows state authorities to take actions against individuals on the basis of suspicion of having committed offences that are not clearly defined but fall under wide categories that are included in the definition. Due to this reason, some scholars have opposed the tendency of governments to not define terrorism or it define it widely because this allows them to criminalise vast number of activities in the name of terrorism.

1. Regina (Miranda) v. Secretary of State for the Home Department [2016] EWCA Civ 6.
2. Lord Lloyd, Inquiry into Legislation against Terrorism Cm 3420 (London: TSMO 1996).
3. Clive Walker, ‘Investigative Journalism and Counter Terrorism Laws’ (2017) 31 Notre Dame JL Ethics & Pub. Pol'y 129, 149.
4. David J. Whittaker, Counter-Terrorism and Human Rights (Routledge 2014) 80.

To conclude this essay, the Miranda decision once again reveals the need to reconsider the definition of terrorism in Section 1 of the Terrorism Act 2000 because it exposes the way in which powers can be used by state authorities to detain and examine individuals under wide definition of terrorism. The concern in this area is not just limited to the ways in which reasonable journalistic actions can come within the scope of such exercise of powers but also how others can be dealt with even when they have not committed an act of terrorism. The principle of legality also requires that offences are defined as narrowly and precisely as possible so as to minimise incidents of rights violations by state authorities. In Miranda, the Court of Appeal has highlighted this issue because Section 1 does not include a mens rea element. This makes it possible to take action even where mental elements may not be established.

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Books

Fenwick H, Civil Liberties and Human rights (4th edn, Routledge-Cavendish 2007).

Lowe D, Terrorism: law and policy (Routledge 2018).

Rastegari B, Violation of Liberties in Counter-Terrorism Measures: A Human Rights Approach (lulu.com 2014).

Walker C, Terrorism and the Law (Oxford University Press 2011).

Whittaker DJ, Counter-Terrorism and Human Rights (Routledge 2014).

Wilkinson P, Terrorism versus Democracy, The Liberal State Response (Routledge 2006).

1. Behnam Rastegari, Violation of Liberties in Counter-Terrorism Measures: A Human Rights Approach (lulu.com 2014) 12.

Journal

Levitt G, ‘Is Terrorism Worth Defining?’ 1986 (13) Ohio N.V.L. Review 97.

Tron J, ‘The law relating to Proscription of terrorist organisations as set out in the Terrorism Act 2000’ (2019) 1(2) The Student Journal of Professional Practice and Academic Research 39.

Walker C, ‘Investigative Journalism and Counter Terrorism Laws’ (2017) 31 Notre Dame JL Ethics & Pub. Pol'y 129.

Reports

Anderson D, The Terrorism Acts In 2014: Report Of The Independent Reviewer On The Operation In 2014 Of The Terrorism Act 2000 And Part I Of The Terrorism Act 2006 (London: TSO 2015).

Lloyd L, Inquiry into Legislation against Terrorism Cm 3420 (London: TSMO 1996).