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An activist's guide to the Terrorism Bill
an in-depth guide
by Ralph Smyth 3rd January 2000
Terrorism Act 2000/2001
Terrorism Bill - Straw redefines terrorism,
Opposition grows to the proposed Terrorism Bill
Please note: this information is now out of date: please go to www.blagged.freeserve.co.uk/ for the latest updates.
This guide refers to clause numbers of the original draft Terrorism Bill. As the Bill goes through the Houses of Parliament it is very likely that there will be amendments, which will result in some numbering changes. If or rather when the Bill becomes an Act, the clauses will then be known as sections.
The next stage for the Bill starts when Parliament returns on 10 January when it will go into committee stage in the Commons. The Government refused to let it go to a Special Standing Committee, and won a vote on the point. Their justification was the extensive consultation there had been, which managed to produce an impressive 80 responses, many of them being opposed to the proposed definition of terrorism!
The new Terrorism Bill is clearly a serious threat for those who are engaged in direct action but there are grounds for hope. What was known back in 1994 as the Criminal Justice Bill not only polarised and politicised a lot of people, it also freed many of them from concern about staying inside the criminal law. If sitting down in front of a bulldozer was now a crime, surely it would be more sensible to deal with the bulldozer beforehand when you were less likely to be caught?
A crucial difference to the 'CJB' is the political nature of the Bill and the offences it creates. Terrorism and the associated offences have been defined so widely that a huge and uncertain range of activity is covered, with the main safeguard being the need for a Government appointee, the Director of Public Prosecutions, to approve prosecutions before they can go ahead.
The new Terrorist Bill, if there is effective and outspoken opposition to it, could help liberate people further from statist propaganda and, for example, realise that in many instances it is states that are engaging in terrorism and not those they label terrorists. Fortunately there are still MPs like Jeremy Corbyn left to make this point in the Commons debate during the Second Reading on 14 December 1999 in Columns 200-201. This guide attempts to go beyond a narrow legalistic view of the legislation and look at the context in which it would operate. After all, as those of us who have been harassed, detained and arrested while engaged in direct action know, what happens in practice is often a world apart from the black letters of the law.
PART I – The new definition of 'terrorism'
A large part of this guide examines this proposed definition of terrorism leaving less space to look at the various offences that the Bill creates as arguments about the related offences depend crucially on the central definition. More important is the stigmatisation of anyone dealt with by the state as a terrorist. This could mean, to take one example, that courts might scrutinise an application to search premises or approve continued detention less thoroughly.
Crucially, though, is how this fits in with the battle of winning public opinion. Blair's biggest PR disaster since his election was over his support for GMOs. It would be much easier if in future activists could be immediately dismissed and sidelined as crazed eco-terrorists. Indeed Alan Simpson MP pointed out (Cm 199) that bio-tech corporations 'are keen to push this phrase into the language of our view of society and of our civil rights legislation'. Simon Hughes MP really hit the nail on the head when he said (Cm 186) :
'It is absolutely clear, however, that the Bill changes the definition of terrorism as understood by the man or woman in the street. The New Oxford Dictionary definition is probably the one that they would understand. It defines terrorism as
"the use of violence and intimidation in the pursuit of political aims."
The first clause of the Bill however states:
Definition 1. - (1) In this Act "terrorism" means the use or threat, for the purpose of advancing a political, religious or ideological cause, of action which:
The fundamental error that has been made is that the proposed legal definition of terrorism is being based on a law-enforcement context. The FBI's definition sets the predication threshold, to use the American term, for it becoming involved in investigating a crime that would otherwise be investigated by police of a US state. Such a definition can be far more indeterminate and vague than one used to define a number of crimes and limit human rights.
The proposed definition replaces the word 'social' in the FBI definition with 'religious' as the Government was concerned that including social objectives within the definition could catch people merely committing crimes such as extortion for financial gain would otherwise be classed as terrorists. However earlier in the Consultation Document Legislation against Terrorism at 3.6 the Government justifies extending the legislation to cover domestic matters saying that domestic terrorists use the same methods and that:
'[there is no] difference in the fear, pain or despair felt by the victims or their families whether the bomb…is planted by a republican or loyalist paramilitary, an international terrorist or an animal rights activist. The injuries and the destruction of life and property are the same. On that view, it seems illogical to draw distinctions between these types of criminal activity and refuse to allow the police to exercise the powers conferred by the Act save in relation to Irish and international terrorism.'
The differentiation here between those taking action for moral reasons and those doing so for naked greed is clearly illogical and shows how obsession with the idea of the invisible hand of the market has clouded the minds of those responsible for the Bill.
As Fiona Mactaggart suggests (Cm 182) it would be generally more appropriate for the impact of terrorism, such as the terror felt by the wider community and the damage to the so-called democratic process, to be dealt with at the point of sentencing. Though sentences for certain offences such as murder are already fixed at life, as Douglas Hogg MP pointed out to Mactaggart during her speech, the tariff for a terrorist murder could always be increased.
How serious is serious?
The next problem is that 'serious violence' is not a clear concept. While Straw claims (Cm152) that the Bill 'rais[es] the threshold for triggering the powers in the Bill above the threshold in the temporary legislation' due to the insertion of the word 'serious' before 'violence', this does seems rather dubious. Even his view that there is a 'thin dividing line' between violence and serious violence is optimistic.
Under section 60 of the Criminal Justice and Public Order Act 1994, police can search people without needing reasonable grounds, if an incident of 'serious violence' is feared. This power has been used extremely readily at demonstrations, particularly animal liberation ones. The lack of reported cases on s60 shows how hard it is to challenge the interpretation of the phrase. The addition of the word 'serious' to the definition of terrorism is really just presentational gloss for wavering backbenchers.
Making terrorism mean terror-ism
What is needed is some "bright line" in the definition to distinguish clearly terrorist from non-terrorist behaviour. Admittedly in times of extreme crisis any such division could be bent by the courts to suit the state but there is little one can do to stop this happening in terms of legal drafting alone. The essence of terrorism is instilling extreme fear or "terror", as the word terrorism suggests, so I propose this should be the trigger. Straw in his opening speech actually agrees, saying terrorism 'aims to create a climate of extreme fear'.
Indeed the original proposed definition in the Consultation Document defined the purpose of terrorism as being 'to intimidate or coerce a government, the public, or any section of the public' rather than for 'for the purpose of advancing' the certain ends. No reasons have been given for this further watering down of the definition.
Clause 1(1) could be amended so that 'for the purpose…cause' is taken out of the first line and put to the end of the subsection with something like 'by putting or attempting to put the public or a section of the public in extreme fear / terror' following it. This would equate the legal definition of terrorism to what people think of when the word comes into their head.
Straw in his opening speech talks of the "special difficulties" for liberal democracies caused by terrorism. Surely this relates to the climate of extreme fear and how this undermines the usual legal and so-called democratic process? For example, the only qualification to the historic rule of double jeopardy allows a person to be tried twice for the same offence if there is evidence that a witness in the first trial was intimidated for the purpose of changing the outcome.
The rights of suspects only need to be reduced where there is this climate of extreme fear and it is only then that they should be reduced. Liberty have pointed out in their briefing that the Government has failed to provide any argument, let alone evidence, why the additional powers are needed for domestic "terrorism".
Indeed when challenged on why activists should be classified as terrorists, Straw is only able to manage saying (Cm 155): 'I believe that we must have some confidence in the law enforcement agencies and the courts. If we look back at the past 25 years, we can see that the [anti-terrorism] powers have been used proportionately...'.
Clearly he hopes Middle England has forgotten about the Birmingham Six, the Guilford Four, etc., and never came into contact with the people who have been repeatedly harassed by the security forces on the sole basis of something as innocuous as their accents.
Liberty contends that the terrorist provisions should only have effect where the so-called democratic process of the state is undermined. This would be much more vague than a fear-based trigger clause and their arguments for this alternative do not seem, at least for me, at all persuasive.
The Need for Direct Action in a Democracy
Straw claims (Cm 152) that "terrorism" (his definition) is even more outrageous since there are 'adequate non-violent means for expressing opposition and dissent'. Perhaps he should learn a little history.
'Emmeline Pankhurst, leader of the suffragettes, found that argument alone won her only stormy denials. Peaceful mass protest turned heads but won her no vote. She was eventually reduced to the tactics of the urban terrorist to make even a dent in the resolve of male politicians not to give women the vote... [The right of women to vote] was won only by the determination of a woman prepared to starve, to be imprisoned and to be beaten for rights that we take for granted today.' The Times, Editorial 24/12/98: People of the Century [I don't think what she did could be called terrorism – that seems to be journalistic licence]
Throughout our history, the major rights have been won not by peaceful expression but by what we now call direct action. People have broken the law to get that law or other laws changed. If anything, with the rise of neo-liberalism and economic globalisation, the need for this is greater than ever, a point hammered home by Alan Simpson MP during his speech (Cm 199-204).
Free speech is maybe enough to get a minor change in the law on something like misrepresentations in holiday brochures but it's definitely not enough for major social or ecological change.
Some argue that protesters ought to take full responsibility for their law-breaking and by being sent to prison should hope to shame wider society into change. Whatever the merits of that view, it is certainly true that the costs imposed by direct action have made up another key element in political advances.
The proposed Terrorism Bill would shift the balance and allow police to harass activists and anyone with the slightest involvement, gather information and scare off many others from getting involved or even donating money from the comfort of their armchair. The present law, mainly based on the Police and Criminal Evidence Act 1984 (PACE), is clearly enough to cope with present protests in terms of convicting people who have committed crimes. But it has not been enough to stop the successes of the last decade on new roads, GMOs, suppliers of non-human animals for vivisection, etc., that has taken power from the Government and big businesses and given it back to the people.
The Terrorism Bill as currently drafted would in essence neutralise activism and decisively shift the balance back. Most importantly of all, as Alan Simpson MP said (Cm 200), 'turn[ing] direct action movements into potentially terrorist movements…would be devastatingly destructive for the whole of the social fabric of the United Kingdom.'
Violence to Property
There has rightly been much concern that mere damage to property should not be seen as terrorism. However, David Lidington MP said (Cm 221) that damage to property could amount to terrorism if it was to 'vital computer or other communications systems, which could result in extensive disruption to economic and other infrastructure'. Certainly in the original Consultation Document, the intention to include serious disruption within the notion of terrorism was made clear.
However in clause 57, which creates an offence of inciting terrorism abroad, under subsection (2)(e) only the aggravated form of criminal damage (that is damage with intent to endanger life, or being reckless as to whether life is endangered contrary to s1(2) Criminal Damage Act 1971) counts.
No reason has been provided why terrorism should include mere damage to property in the UK but not abroad. Perhaps it is the fact that GM crops have been destroyed so successfully here and the Government wants extra powers to deal with this?
Endangering Life & Serious Risks to Health and Safety
Subsections (1)(b) and (1)(c) of clause 1 should set alarm bells ringing for anyone who has read 'WINNING THE ECO-WAR – A new strategy for policing environmental protests', in Police Review (27 August and 3 September 1999). These articles advocate a strategy of "proactive policing", i.e. harassment, partly based on getting rid of protest sites before they have been fortified with tunnels, lock-ons, etc.
In one telling part about the eviction of the BNRR, the article recites how '[a] press conference was held to challenge that this was a peaceful protest, and show how the lives of protesters, officers of court and police officers were being put at risk' in terms of tunnels, etc. on the protest site.
So under the Bill, merely endangering your own life for a political purpose, even if there was no violence, would count as terrorism! While one officer quoted in the article felt the need for 'an offence 'in its own right' of a trespasser constructing fortifications…with associated powers of search, arrest and seizure of evidence', the Government is far too clever to risk the adverse publicity that seeking to create such an offence could lead to.
Under the Bill, constructing fortifications would involve a threat to endanger life for a political purpose, would therefore count as terrorism and as a result the police could have the swathe of powers that will be examined later.
Subsection (1)(c) has to be the most vague and indeterminate of the three alternatives. While it is understandable that the Government wants to be able to deal with new forms of terrorism, surely they will fall within the other subsections?
As far as I know, no other country has or has needed It would seem that no other country has. Certainly there is always the possibility of creative activists arguing that multinationals are endangering the public's safety with their bio-tech products for the advancement of neo-liberal ideology / profit, though this has more chance of embarrassing the multinationals than actually achieving their proscription, however desirable that might be. This highlights the fact that this Bill is more about upholding a certain ideology than preventing and responding to harm to the public.
Under clause 1(2) terrorism is defined so that it covers acts done or threatened anywhere in the world. Liberty have rightly pointed out that there is much scope for prosecutions under clauses 57-59 (relating to inciting terrorism overseas) to be motivated by pressure from foreign governments and that a fair trial could be difficult to obtain as evidence and witnesses would have to come from those countries.
That said, they have not highlighted that as clause 1(2) widens the scope of the Bill to any terrorism occurring anywhere, there is an even bigger risk to those involved in overseas activism. In essence anyone involved in solidarity campaigns with movements abroad that fall within the new definition could be treated exactly the same as someone involved in terrorism here.
PART II – Proscribed Organisations
It is important to distinguish those offences that can only be committed in relation to a proscribed organisation from the others in the Bill. Under clause 3 the Home Secretary can proscribe, i.e. ban, an organisation if it:
The only right of further appeal is again on legal points only and such an appeal would go to the Court of Appeal. It gets worse: under clause 3(3) of Schedule 3, not only can the representative of the proscribed organisation and their lawyer be banned from the hearing, POAC can refuse to give full details of its reasons for dismissing an appeal.
So who is likely to be affected? Straw claims that (Cm 154) 'the new definition [of terrorism] will not catch the vast majority of so-called domestic activist groups'. Indeed Charles Clarke MP, a junior minister at the home office states (Cm 225) that 'the Home Secretary has no plans at present to proscribe any domestic group' though he is considering which international groups to proscribe.
The only groups proscribed at present are involved in Irish terrorism. The junior minister quotes from the Consultation Document which suggests only the Justice Department and Animal Rights Militia 'have crossed the threshold'. Proscription is a really extreme power and it is unlikely that any domestic groups would be proscribed unless they are extremely active and their public reputation has been blackened enough, through dirty tricks or otherwise.
The offences relating to proscribed organisations, which all carry a maximum punishment of ten years and an unlimited fine are:
PART III – Funding and terrorist property
The following offences relate to funding and "terrorist" property and carry a maximum penalty of 14 years imprisonment and an unlimited fine. Under clause 20 it is a defence to these offences to prove that you were acting with the express consent of a police officer.
Duty to disclose suspicions
Clause 18 (disclosure of information: duty) creates an offence of believing or suspecting someone has committed one of the offences in the previous section (clauses 14 to 17) due to 'information which comes to his attention in the course of a trade, profession, business or employment'. The maximum punishment is an unlimited fine and 5 years. This could end up being used to get journalists to report activists to the police: while there is no offence of committing terrorism, under clause 15 using or even possessing property for terrorism is a crime, so there effectively is.
This could cover, for example, possessing tools for trashing a genetics test site or for fortifying a protest site. Journalists not telling all could be threatened by police who would have an excellent tool to keep activist-friendly journalists in line. It could also lead to journalists being forced to rely less on people in direct action movements for information and instead turning to the state, etc.
Note: This offence does NOT apply to information that comes to your attention in a personal capacity or relationship. The Government has kindly restricted the offence to business relationships. There are also extensive powers to seize terrorist assets and other property in this part but as most activist groups survive on a shoestring, they have not been covered here.
PART IV – Terrorist Investigations
Under clause 32 if a police officer considers it 'expedient for the purposes of a terrorist investigation' she (okay more probably he) could declare a cordon. Anyone going inside or not following a direction to leave or remove a vehicle commits an offence.
While there is a defence of having a "reasonable excuse" it is not clear how this will be interpreted. The cordon can last for 14 days and can be extended to a maximum period of 28 days, surely enough for any eviction?
With terrorism so loosely defined and the only requirement for setting up a cordon being expediency, a rather vague term itself, it would be hard to challenge the use of this power, which only needs a superintendent to authorise it. Worse is that you would commit an offence even if you hadn't been told about the cordon.
Clause 36 simply gives effect to the complex Schedule 5 which relates to search warrants (for searching premises) in terrorist cases. I haven't had time to examine in detail the differences between the provisions here and the usual rights in PACE – Liberty are to produce a detailed guide on this technical area. There are two very worrying provisions. First, in cases of 'great emergency' where 'immediate action is necessary' a superintendent can give permission for a search without a warrant.
Second and worst of all is paragraph 13, which could force a suspect to give an explanation for any material found. While Liberty point out that failure to obey would be contempt of court, they don't mention that it is a separate offence to recklessly make a statement that is untrue or even just partially misleading. This carries a maximum of two years imprisonment and a unlimited fine.
How easy this will be to prove and how it will be used is hard to guess at. Hopefully this provision, surely the most draconian provision in the Bill that applies to the mainland, will never become law.
Clause 37 (Disclosure of Information) creates an offence of tipping off during a terrorist investigation. The offence is much wider than it sounds as it also covers interfering with material likely to be relevant to an investigation and disclosing anything to anybody if it is likely to prejudice an investigation. Worse still (that phrase is becoming rather worn now) it applies even if a terrorist investigation has not been started yet, if you have reasonable grounds to suspect it might be and the burden will be on you to prove you didn't.
Don't forget that a terrorist investigation, as defined in clause 31, not only covers investigations into terrorist acts and their preparation, but also their "instigation". Instigation seems to be a far more vague and loose term than incitement as it covers general support for acts rather than just encouraging someone to do a specific act. However, it would probably need to exist in a longer timeframe and be based around more than one specific act of terrorism, unless that act was exceptional.
PART V – Counter Terrorist Powers
From the perspective of an activist, the new powers the Bill would create are of far greater concern than the new offences. For as Straw points out (Cm 162): 'The main purpose of the Bill is not to extend the criminal code, but to give the police special powers to enable them to prevent and investigate that special category of crime.' While Straw does claim (Cm 154) that the Bill 'is not designed to be used in situations where demonstrations unaccountably turn ugly', you have to remember all the allegations about the violence at J18 being pre-planned.
If the Bill becomes law in its present form, it is most likely that the powers will be first used domestically against those engaged in the struggle for animal liberation. It is they who are presently the closest to what the public considers terrorism.
At the same time a combination of dirty tricks, for example Sunday Times articles and careful provoking of riots as happened at N30, along with slick media manipulation and press conferences will be used to try to divide the radical direct action groups and activists from the liberals. Dirty tricks were a key part of the state's tactics in Northern Ireland, during the miners' strike and Greenham Common and it seems certain that they will continue to be used.
There has probably been enough dirt on RTS to allow the police to feel confident about using some of the proposed powers against them and groups working with them before another big day of action.
Straw does say (Cm 158) that 'I say with considerable care that I know of no evidence whatever related to Greenpeace's activities that could bring it remotely within the Bill's ambit.' Since Greenpeace has been involved in trashing test sites, this might make you think that this sort of activity would not be covered by the Bill.
Then again remember that there were specific assurances given about the Harassment Act 1997 and how it wouldn't be used against protesters – the first few times it was used was against, yes you've guessed it, animal liberationists. Greenpeace is very unlikely to find itself directly at risk from the Bill as this would probably backfire and cause public outrage. On the other hand radical genetix activists could find themselves targeted in an attempt to divide and rule.
Powers of arrest and detention
A terrorist is defined in clause 38 as a person who
Clause 39 then allows a general power of arrest without a warrant for anyone who a police officer reasonably suspects to be a terrorist and provides that instead of the normal PACE rights the provisions of Schedule 7 (detention: treatment, review and extension) shall apply. The danger of this power of arrest is that police do not need evidence of a specific offence and can arrest for a more general suspicion of involvement or support for terrorism – don't forget what was just said about "instigation".
So while Straw is at pains to point out that no new offence of "terrorism" is created by the Bill, this is beside the point. It's characteristic of this type of legislation that there a lot of arrests and few prosecutions. This is backed up by an arrest card Fuascailt made advising the Irish community on the PTA. It says:
'It is important to bear in mind that your detention will probably have little to do with being a "suspected terrorist" and more to do with general information gathering and intimidation of the Irish Community…Some statistics: 98% of all those detained under the PTA were innocent of any crime. In 1995 (during IRA ceasefire) 22,691 overwhelmingly Irish people were stopped and searched for up to one hour.'
This was pretty much admitted by Leon Brittan, the former Home Secretary, in a 1985 interview on Radio Telefis Eireann, when he defended the PTA saying 'The object of the exercise is not just to secure convictions but to secure information.' What makes these arrests really frightening is that it is usual practice for the arrested person to be held incommunicado without any legal advice. It is very likely that these "fishing trips" could be found to be a violation of the ECHR if used against activists, indeed Liberty in their briefing produce strong arguments that the arrest clause would be a clear violation of Convention rights.
While Schedule 7 does bring the regime for detention of those charged with terrorist offences more into line with PACE than is the case under the present legislation, there are some extremely disturbing aspects. Firstly access to a lawyer and the first authorisation of detention by a court can be delayed up to 48 hours after arrest, as opposed to 36 hours under PACE. During the hearing on whether to authorise continued detention, the court can under paragraph 28(3) exclude the person being held and their lawyer and information relied upon by the police to justify continued detention. So while there may be a right to a hearing, there is certainly no right to a fair hearing.
It seems that while a court needs reasonable grounds to withhold information from the detainee or their lawyer, there is no such qualification for excluding them from the hearing. Hopefully there will be some guidelines laid down for this. The maximum period before charge or release is still 7 days as opposed to four days under PACE and for this the Government will need a derogation – an opt-out – from the ECHR. Another very worrying provision is that under paragraphs 3, 5 and 7, relating to fingerprints, intimate and non-intimate samples respectively, even if a detainee is not convicted, their fingerprints or samples will not have to be destroyed unlike the situation under PACE.
Note: Paragraphs 11-15 of Schedule 7 apply only to Scotland where PACE does not apply.
Powers relating to searches and vehicles
A power to search a building to find a suspected terrorist on a warrant from a magistrate is provided by Clause 40. Clause 41 creates a general power of stop & search for anyone whom a constable 'reasonably suspects to be a terrorist to discover whether he has in his possession anything which may constitute evidence that he is a terrorist.'
With the definition of a terrorist being so vague and freed from the need to be based on a specific offence it would not be difficult for the police to use these powers. Basically if you've been at all involved in any campaign or group they start using anti-terrorist powers against, you would not be being at all paranoid to expect a visit from the police and a free trip down the police station.
Clause 42 gives a specific power to stop and search vehicles and pedestrians in a specified area 'for articles of a kind which could be used in connection with terrorism' without needing the usual reasonable grounds. This would replace the existing power inserted by s81 CJPOA 1994 into s13 PTA 1989. An authorisation for the use of this power needs an assistant chief constable or in London a commander to consider it 'expedient for the prevention of acts of terrorism', plus it has to be approved within 48 hours by the home secretary and cannot last more than 28 days.
This power is unlikely to be used much against us for they already have s60 CJPOA 1994, mentioned previously and dependent on the finding of "serious violence". While it can be only used to search for offensive weapons and dangerous instruments, the police can carry out very thorough searches as they claim to be looking for razor blades. While this power can be authorised by a superintendent and does not need the approval of the Home Secretary, it can only last for 24 hours and could not be used merely for threats to health and safety, etc.
Clause 46 permits an authorisation restricting or prohibiting the parking of vehicles along a specified stretch of road if an officer 'considers it expedient for the prevention of acts of terrorism'. While it has to be given by one of the highest ranks of police officer, there is no exception for orange badge holders. The authorisation can last for up to 28 days.
PART VI – Miscellaneous
Clause 51 gives effect to Schedule 6 containing provisions on port and border controls, which shouldn't be much of an issue except for those lucky activists who jet around to Seattle, Geneva, etc. It does allow officials to detain and question you for up to nine hours without needing any reasonable grounds.
Clause 52 creates an offence of weapons training, which covers providing, receiving or inciting others to provide training in the making or use of firearms, explosives or NCB weapons. So as not to catch the armed forces there is a defence that the purpose was wholly other than terrorism.
While the offence of weapons training shouldn't worry activists, the offence in clause 54 of directing a terrorist organisation should. It does not matter what level you are directing an organisation which is concerned in the commission of acts of terrorism and the maximum sentence is life imprisonment. We all know the classic police inability to understand the concept of non-hierarchical organisation and their insistence to be taken to the "leader", so they could well adopt a flexible interpretation of this clause.
While placing facilitation of a meeting within the scope of this offence could be a bit over the top, on the other hand evidence of being a facilitator could be the final piece needed to secure a conviction. It is possible this offence would be used in the context of non-hierarchical groups as an alternative to conspiracy charges, which are very unpopular among judges and readily chucked out of court.
Possession of information
Liberty provide an excellent analysis of the draconian offences proposed in clauses 55 (possession for terrorist purposes) and 56 (collection of information). As they point out, there have only been two prosecutions under the predecessor of the first offence and in both of those it was literature and correspondence which was relied upon.
After the failure of the GAndALF trial, the security services must be licking their lips in anticipation of this offence becoming law, especially as if they find anything on you or in the place where you are, you have to prove you did not possess it. This, along with the fact you have to prove the article found had nothing to do with terrorism, means that you could be put away for ten years just for reasonable suspicion, even if there is a reasonable doubt. You could be done under this offence for possession of a Genetix Snowball handbook in theory, so a lot of notable people should watch out.
The offence of collection of information is very worrying as well. The Corporate Watchers' Address Book is a prime example of a tool for lobbying and information that could be caught as it is 'information of a kind likely to be useful to a person committing or preparing an act of terrorism'. Mere possession as well as collection of information is enough to commit the offence and again the burden is on you to prove you had a reasonable excuse to possess the information.
As in the GAndALF case, the police and security services would sift through everything personal to try to dig up enough dirt to cast enough suspicions on your character to secure a prosecution. Of course they would very much enjoy making copies of everything for their own records as well. This offence is worrying for journalists, especially campaigning journalists with a record of investigative political journalism. It is likely the police could target them to make their work difficult, just as they target photographers and video journalists on actions, seizing their films until deadlines are past.
Inciting terrorism overseas
Clause 57 creates an offence in England & Wales of inciting terrorism overseas, while clauses 58 and 59 contain the offences for Scotland and Northern Ireland respectively. Only acts of terrorism that would constitute certain offences if carried out in this country would count. Those offences are: murder; wounding with intent (GBH); poisoning; causing explosions, and criminal damage being reckless as to whether life is endangered. Incitement has to be very specific, so simply inciting someone to bomb a MuckDonalds in Russia would not be enough, but inciting someone to bomb a specific one or indeed all of them would be.
It is ironic that Straw claims his Bill is 'simply protecting democracy'. Many of those struggling for self-determination and national liberation have no choice but to use force, even in the part of Kurdistan occupied by our ally Turkey, for example. Straw says (Cm 164) that as long as protesters are peaceful there will be no problem.
But what of those who are organising self-defence of their communities and peoples against the violence of an oppressive occupier, fully in accordance with their rights under international law? Under the Terrorism Bill they not only have a lot to fear at home, but also a lot to fear here. A sensible modification of these clauses would be to fetter the discretion of the DPP so that no prosecution could be brought where there were violation of key rights under the United Nation's charter. The fear of such a finding being made in a British court should persuade oppressive states from lobbying our Government to prosecute people here.
Can the state be involved in terrorism?
Clause 57(5), which relates to inciting terrorism abroad, provides:
'Nothing in this section imposes criminal liability on any person acting on behalf of, or holding office under, the Crown.' Clause 52(5) provides an exception to the offence of weapons training that was thought to be needed to cover the armed forces.
This is extremely interesting as there is no general provision excepting the state from the Bill. The fact it was felt necessary to draft these sub-clauses does strongly suggest that the Bill as a whole covers the state. It will be possible to have any decision made by the DPP to prosecute or not to prosecute (see commentary on Part VIII) judicially reviewed. While this will not allow an attack on the merits of a decision to be examined it will allow at least some review. This area of law is developing very quickly and could prove fruitful in the future.
PART VII – Northern Ireland
Clauses 62 to 109 (Part VII) apply to Northern Ireland ONLY – this includes Schedule 9 which allows the police and army to search for munitions and transmitters. The provisions in this part will gradually be removed as the situation in Northern Ireland improves. It is therefore highly unlikely that these exceptional provisions will be extended to the rest of the UK, even taking account of the U-turn that Labour has done on terrorism legislation since it came to power.
PART VIII – General
Clause 113 provides that no prosecutions for any offence created in the Bill can proceed without permission from the Director of Public Prosecutions. One of the most damning criticisms of the Bill that Straw and his supporters could not deal with was that the uncertainty of not knowing what the DPP will do would scare off people from activities which they have fundamental rights to doing in a democracy. This 'chilling effect' alone opens the Bill to serious challenges under the Human Rights Act 1998.
Straw avoids the point when he claims that the Act will be a 'profound safeguard' against disproportionate use of the Bill's powers. Citizens will not know how much of a safeguard the HRA will be until a prosecution or use of powers under the Terrorism Bill is challenged and only then when a ruling comes from the highest courts of the land. Even then, for a citizen to have some certainty about the legality of their actions, the subject matter of the decision will have to be rather similar to that of their acts. As it will take a number of years for these rulings, the chilling effect will be a problem for a long time.
Clause 116 provides for the interpretation of a number of terms in the act. Worthy of note is the definition of "organisation" which 'includes any association or combination of persons' so it would easily cover an affinity group let alone a self-styled (horrible journo phrase, I know) "disorganisation". Some have commented that the fact "premises" is defined to include 'any place and…a tent or moveable structure' suggests that protest sites are being specifically targeted. But the existing law on searches under s23 PACE already defines premises in exactly the same way so this fear seems unfounded.
Summary and desirable amendments (incomplete)
'We are being asked to accept a real paradigm shift. Somehow the threat to the stability of the state has given way to threats to the corporate estate, and that will be the basis for the new definition of social terrorism. That is a desperately dangerous path to go down.'
Alan Simpson MP (Cm 202)
It is best to view the powers and offences in the Bill as tools for the state to use to enforce social discipline and their order on us. How much they dare to use them indeed whether they get put on the statute book depends on whether society consents or rather acquiesces. It's time to get active…
Clause 1(1): narrowing down of violence to property; new trigger condition of extreme fear
Clause 1(2): fetter discretion of DPP to prosecute overseas terrorism with reference to violations of UN Charter / 1993 Vienna Declaration
Schedule 3: POAC having full appeal not just Judicial Review powers and being subject to natural justice
Schedule 7: wholesale reform of the detention provisions needed so they comply with the ECHR
Remove reverse presumptions (clauses 17, 18, 35, 37, 49, 52, 55, 56) – this is the real basis for the allegation of creation of a twin-track system. Possible exceptions: money-laundering and weapons training (clauses 17 and 52)
Renewal every year, including annual independent review. Could then modify / repeal sections that are being misused.
Guide by Ralph Smyth, 3 January 2000
Barrister (non-practising), BA, BCL.
For updates, check out: go.to/ta2000
Terrorism Act 2000/2001
Jack Boot terror
Terrorism bill becomes law.
An activist's guide to the Terrorism Bill
A30: New Prevention of Terrorism Act Imminent
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