Counter-Terrorism and Border Security Bill (First sitting)

Nick Thomas-Symonds Excerpts

Committee Debate: 1st sitting: House of Commons
Tuesday 26th June 2018 Public Bill Committees

[Simon Hoare (North Dorset) (Con)]

Q Thank you, gentlemen, for your representations. My question is to Mr McGill because he has his CPS hat on. Clause 3(2)(c) uses the phrase:

“on three or more different occasions the person views by means of the internet a document or record containing information of that kind.”

Does that provide the necessary discretion to prosecutors? Is it clear enough, or would you need greater clarity? Could you comment on that, because the clause has been discussed here?

Gregor McGill: I am aware of the discussion that there has been. Prosecutors require clarity when looking at legislation, because they have to apply that legislation. Approaching this practically—we discussed this beforehand—three seems an appropriate number to us, because we would not want people to be criminalised for inadvertently going on to a website. I have to accept that that could happen. That could be a single occasion. It is a more difficult argument to accept if the person has gone on to it twice, and it is more difficult again if the person has gone on to it three times.

There is of course a statutory defence to the offence as set out, which gives some safeguards. The code for Crown prosecutors has a two-stage test, which is sufficiency of evidence and, if the evidence is satisfied, whether it would be in the public interest to prosecute. There are a number of safeguards in that for us to say that we think the legislation as drafted hits the right balance between protecting society and protecting the rights of a suspect.

[Nick Thomas-Symonds (Torfaen) (Lab)]

Q Welcome, and thank you both for your opening statements. I want to turn first to clause 1 and the expressions of support for a proscribed organisation. The original offence is in section 12 of the Terrorism Act 2000, which says:

“A person commits an offence…if he invites support for a proscribed organisation”.

The new clause in the Bill states:

“A person commits an offence if the person…expresses an opinion or belief that is supportive of a proscribed organisation”.

It then brings in the concept of recklessness. Could both of you give me an example of a type of situation that could not be prosecuted under the previous regime but could be prosecuted under this new regime?

Assistant Commissioner Basu: Yes, I can certainly give you an example of that. The biggest problem we have in counter-terrorism, without a doubt, which is making this a generational challenge, is radicalisation. I think that is a given, from my position, but I could find a great deal of current support in Government and in social media sentiment to say that the ability to radicalise is a significant issue. I will leave the fine legal point of “reckless” to Greg, but it is a well-established criminal tenet, so I do not see that necessarily as an issue.

I could relate a number of studies. One is of Mohammed Shamsuddin. Many of you will have seen commentary on the Channel 4 documentary “The Jihadis Next Door” last year. On 27 June 2015, Shamsuddin gave a speech. In the context of that speech, it was very clear that he supported Daesh and what they were doing. He did not invite others, which is obviously the current test, so he did not meet a section 12 charge. He shouted anti-kufr rhetoric and said, “Allahu Akbar” in relation to the Kuwait mosque bombing. He said that one should not feel sorry for the British who died in Tunisia or for the kufr killed in Kuwait. He criticised Gay Pride and said that gay people should be thrown from tall buildings. Having spoken on recent shootings in Tunisia, he said, “The spark was lit,” and that the listeners knew the rest.

A second example is Omar Brooks, again in 2015, on 4 July. He gave provocative talks and spoke of jihad and of how Islam was spread by the sword and was not a soft religion about peace. Brooks also mocked a sheikh who had spoken against the killing of Lee Rigby. Again, it was clear, when you look at the full tone of his speech, that he supported the concept and principle of Daesh, but he did not invite others, under the terms of the current legislation, and again it would not have met a section 12 charge.

Now, were either of those two people reckless in that they would have thought that their deeds would have encouraged terrorism? My contention is that they absolutely would. What we have seen in the rise of terrorism—particularly with the malleable, vulnerable people not well equipped to understand the nuances of religion or ideology—is that this kind of radicalisation speech has really worked to increase the threat to the UK.

Gregor McGill: I would adopt that. I think there is a gap in the law at the moment that means that we cannot always prosecute people in the circumstances that Mr Basu has set out. You raised the question of recklessness. Do you want me to deal with the question of recklessness?

[Nick Thomas-Symonds]

Please do.

Gregor McGill: As you are aware, recklessness is a concept that is well known to the criminal lawyer. It is currently in the terrorism legislation. It is something that investigative colleagues and prosecutors are aware of dealing with. It has been seen to be ECHR-compliant; that is correct.

The legal definition of recklessness is a subjective test now; the courts made that clear in the 2003 case of G. It is about a person who realises that there is an obvious risk in what they are doing and, realising that obvious risk, goes on to do something that brings about that obvious risk happening.

It is a concept that is well known in terrorism legislation and also well known in the wider criminal law. It is used in a number of offences—for instance, arson, child neglect and some assaults. It is not an unknown concept. It is not unknown to prosecutors and judges, who are used to dealing with these difficult situations.

[Nick Thomas-Symonds]

Q I have a couple more questions. Let us move on to clause 2 for a moment, which is about the publication of an image of an item of clothing or other article. I think this argument probably also applies to clause 1, where we are trying to balance things up—in clause 1, it is freedom of expression versus the offending that we are talking about. In clause 2, where we are talking about the publication of images, presumably we would not want to criminalise a reckless 16 or 17-year-old going to a fancy dress party or something who clearly does not have terrorist intent. They may be doing something very distasteful, but we would not want to criminalise them via this clause. Could you both comment on that balance in relation to clause 2?

Gregor McGill: I agree with you. Most of the decisions that are made in the criminal law are a balancing exercise. Prosecutors have to balance the rights of a suspect against the rights and protection of the public. The code enables us to do that. That is why we have a public interest test that enables us to ask. Even if the evidence in its purest form makes out the criminal offence, it has never been the case here that, just because you prove an offence, you necessarily should prosecute it. Prosecutors have the discretion not to prosecute, and they exercise that discretion very frequently.

Assistant Commissioner Basu: I do not want to be glib about this, but I have worked with Greg for a very long time and I would never get such a case past him anyway, even if I was prepared to put that case. We are far too busy on genuine acts of terrorism to be concerned with such a case. What it might point to is somebody who is in trouble and needs a bit of guidance: that is the Prevent tactic under the Government’s Contest strategy. There are some remarkable people on the front line capable of speaking to people and changing their minds about the path they might be following.

The other thing I would say about this clause is that this, again, is a modern technology phenomenon. The idea of dressing up in regalia that would be abhorrent to—hopefully—all of us here and the vast majority of the public has been well-established. The Public Order Act has established that. People just do not attend public assemblies, marches and demonstrations in the same way that they used to. Why would you need to? A tiny fraction of the population might see that for a fraction of a second, but now you can put it online and publicly display your message.

We would look at all the circumstances in relation to how that was being publicised and what you were trying to achieve by that before we looked at any form of executive action.

[Nick Thomas-Symonds]

Q Can I turn to clause 3, before we come to the issue of streaming and so on? This is to Mr McGill. Consider a situation in which someone goes to somebody’s house and that person has, for example, streamed four or five things that we would be unable to prosecute under section 58, as it stands. I have seen it argued that that could or should be prosecuted. Section 5 of the 2006 Act relates to acts “preparatory” to terrorism: why could that not be prosecuted at the moment under that section or any other?

Gregor McGill: The answer to that, I think, is that we are dealing with specific offences under section 58, which is about viewing and streaming material. Prosecutors are adept at looking for other offences that would enable you to deal with the criminality, but the essence of prosecution is that you prosecute the most appropriate offence set out by the facts in front of you.

Prosecutors can sometimes shoehorn offending into other offences, but experience tells us that that can result in problems down the line because there can be technical defences to certain clauses that superficially make you think you can prosecute under those offences, although it is more difficult. Prosecutors will always try to prosecute under the most appropriate offence, and the most appropriate offence for this type of material is the section 58 offence under the 2000 Act.

[Nick Thomas-Symonds]

Q Have there been any attempts to prosecute under different sections, such as section 5 of the Terrorism Act 2006, or is it simply a decision that prosecutors have felt unable to make because of the nature of the offence?

Gregor McGill: Most cases are fact-specific, so it is difficult to talk in general terms. In these particular cases, so much turns on the particular circumstances of each case, the particular evidence in the case and the particular conduct of the person under investigation. It is difficult to speak in generalities. Prosecutors have, of course, tried a number of offences to deal with certain criminality, but generally it is difficult to shoehorn some conduct into offences that were not specifically set out to deal with that type of offending.

[Nick Thomas-Symonds]

Q I have one more question, still on clause 3. Obviously, there is the concept of three viewings, which you referred to specifically in your opening statement, Mr Basu, but there is no time limit in the Act as it stands for viewing three times over a specified period of time. In prosecuting the offence in practice, would the Crown Prosecution Service consider the period over which the three viewings had been made?

Gregor McGill: The CPS prosecutor, in looking at the case, would consider all aspects and look at the particular circumstances and timings of the access. If they were close together, that could tell a story; if they were apart, that could tell a story. We work closely with our investigative colleagues and find out from them exactly what the evidence shows and, if it has been put to the suspect in interview, precisely what they have said about that. But as a prosecutor, you have to look at the evidence in the round and consider all the evidence, including the circumstances in which the contact has happened. Depending on the circumstances of the case, the particular type of contact may tell a particular story.

[Nic Dakin (Scunthorpe) (Lab)]

Q You have drawn attention to a number of areas where these new powers would assist in addressing issues that cannot be addressed at the moment. Are there any other areas that you would like to draw attention to? Are there any other powers that we should be considering in order to make progress against counter-terrorism?

Assistant Commissioner Basu: I did not want to get off clause 3 without making some really important comments about it from the policing perspective, if that is possible, Chair. To answer your question directly, we are very fortunate in this country, with the support of the Government over many decades, to have pretty robust legislation in terms of counter-terrorism.

What we are looking to do—and most of these clauses do it—is close some loopholes, because of the changing nature of the threat and the change in technology. There is very little that was left in the first debates that took place in terms of what would be best to counteract terrorism. One of the major partners that I am looking to involve much more in the counter-terrorism fight is the business sector—and the public sector. We have a Prevent duty that has gone a long way towards getting statutory partners more engaged in the battle, but we do not currently have any licensing, regulation or regime for the business sector to improve its ability to protect its employees, customers and management of events. We do not have that; it is a conversation we are still having.

I think—and you may want to get on to this—that the Australians have a “designated area” offence for people who wish to travel to war zones and fight. Although that would not be retrospective, and therefore would not have great utility in respect of the Syrian conflict, I think it would have utility for the future. If we were dealing with a similar situation in the future, stopping people from going to fight or enabling the prosecution of people fighting in theatre when they return would have great utility to us. Those are probably the two things that I would consider at the moment.

Gregor McGill: The Australians have such a power and they consider it a useful addition to their armament. We do not have a power. As my colleague Mr Basu has said, it would not help us address some of the issues that have happened in the past, but it could help us address some of the issues in the future.

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[Gavin Newlands]

Q It would be useful if you provided the Committee with more examples. The Bill is asking for an extension from two plus one to five years; that would be more than double in some cases. To justify that, it would be useful for the Committee to have that information.

Gregor McGill: We can certainly look for those examples and write to the Committee.

[Nick Thomas-Symonds]

Q I have a narrow question. Clause 12 concerns the power to enter and search houses. I am trying to get a practical sense of that. There are, of course, various requirements. On at least two occasions there has to have been attempts at entry before. The purpose is this:

“to enter premises specified in the warrant for the purpose of assessing the risks posed by the person to whom the warrant relates;”

Could you expand on that? Mr Basu, what exactly do you think is meant by “assessing the risks”? What practically would be likely in a situation like that?

Assistant Commissioner Basu: This is based around lifetime offender management of terrorism. The parallel is obviously registered sex offenders, where this power exists. You are looking for anything that looks as though they have re-engaged or are breaching their notification requirements, if they are on notification. It is something that allows us to assess the ongoing risk of their re-engaging with terrorism. You might find material if you were to do such a warrant. You might find a flag being displayed. You might find material that is of use to a terrorist. That is the purpose of it.

[Mr Wallace]

Q I think we are coming towards the end. Can I just thank you very much for your evidence? Could I ask you to set the scene, assistant commissioner, of where we are with today’s threat and to put in context why these powers are needed?

Assistant Commissioner Basu: Certainly. You can listen to me or you can listen to Andrew Parker from MI5, who has spent 35 years in terrorism and says he has never seen anything like it. If I wanted to describe the threat, that is where I would start. It is definitely a shift, not a spike. We saw the start of problems that were predictable when the military push went into Mosul and Raqqa at the beginning of 2017.

Before Khalid Masood hit Westminster Bridge on 22 March, the number of leads from international partners, covert means and here in the UK were starting to increase in January. What we reached, post Khalid Masood’s attack, was probably a lowering of the bar for terrorism in this country, where people thought that perhaps we were not as hostile to terrorism as we could be and, therefore, they were capable of committing attacks. The attacks that followed were not connected in any way, shape or form, but they say something about the inspiration and the radicalisation that we have discussed.

That has left us with a trebling of our leads; on a monthly basis we deal with three times the number of investigative leads that might later work themselves through into a priority investigation against terrorism. There is more attack planning here in the UK, which is why section 58 of the Terrorism Act 2000 is so important. Holding information is often a precursor for people seeking to do a much more serious offence down the line. We are seeing something in the region of about a 30% increase in case load.

We talk about somewhere between about 500 and 600 cases. Taking the cases that are not police and MI5-led and including the ones that are led by police alone, it is more like 650. We have talked openly about the fact that 3,000 subjects are of acute interest to us, which means 3,000 open cases of individuals who are considered a national security threat. We talk about the growing pool of those we have looked at and are no longer considered a national security threat, but who may re-engage in the future, as being 20,000.

We also have a number of issues, as we have discussed, of people who have been exposed to this in countries overseas. Now that the caliphate has collapsed, what will happen to those people? Will they return to their countries of origin? We still have a substantial number of people who could return against whom we do not have prosecutable case.

Within our communities, we continue to see a rise in extremism. Most disturbingly, along with the jihadist Islamist threat that we see in international counter-terrorism, we now see the extreme right wing growing as well. Those probably feed off of each other, which is why this becomes a whole-society problem, because we are seeing both sides of the coin. The previous Home Secretary proscribed National Action. We have done a great deal of work against National Action.

The most disturbing thing about the extreme right-wing threat, in terms of how it transfigured as National Action, is that it shows very similar signs to what was discussed about al-Muhajiroun—ALM—many years ago. It probably took years to get on top of ALM, and we did not want to make that same mistake with the extreme right-wing threat. Counting that together with the scale of the pace, our ability to counter that level of threat will be severely challenged over the next couple of years. This legislation provides me with some help on that.

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[The Chair]

Q We will now hear oral evidence from Richard Atkinson, chair of the criminal law committee of the Law Society. We have until 11.25 am. I welcome you, Mr Atkinson. Thank you for being with us this morning. Will you please introduce yourself for the record?

Richard Atkinson: Good morning. I am Richard Atkinson and I am co-chair of the Law Society’s criminal law committee. I am a defence practitioner specialising in criminal law.

[Nick Thomas-Symonds]

Q Thank you for coming to give evidence to us, Mr Atkinson. I want to turn to the border security part of the Bill and issues of detention and access to a lawyer. There is no right to consult a solicitor in private in the Bill. The way the Bill works is that there is a one-hour period without the right to consult. Beyond that, there is a further six-hour period. The Bill is pretty clear about the power attached to it:

“a detainee who wishes to exercise the right”

may in some circumstances do so

“only in the sight and hearing of a qualified officer.”

Is it a concern that there is no right under the Bill to consult a lawyer in private?

Richard Atkinson: Yes, a very great concern. It fundamentally undermines what I would consider to be a cornerstone of our justice system—legal professional privilege. As you may know, legal professional privilege is a right that belongs to the client, not to the lawyer, and it is a right to consult with their lawyer and have the contents of those discussions, where they are a matter of advice, privileged and not to be disclosed to anyone. Clearly, if someone is listening to that conversation who is not advising them, that conversation is no longer privileged. Therefore, that risks undermining the whole concept we have of privilege.

I understand that the motivation for this is the concern that there may be advisers—lawyers—who may be susceptible to being used, if I can put it that way, by manipulative suspects to achieve the goals being sought to be prohibited—communication with remaining suspects, interfering with evidence or furthering criminal activity. However, that is not unknown to our current justice provisions. Powers are already in place to deal with such situations that do not require the breach of legal professional privilege.

For example, in the Police and Criminal Evidence Act 1984 code H, which deals with counterterrorism cases, where there is concern about an individual lawyer there is provision for the suspect to have the consultation with that lawyer delayed but to be offered the services of another lawyer in the meantime. The suspect is therefore not devoid of legal advice. That advice is in private and maintains privilege but meets the concerns, if there are specific concerns, in relation to that particular legal adviser. So we have in place a situation where we can address the concern but maintain the fundamental principle of legal professional privilege. The Bill goes much further than that and is a step that I feel is very detrimental to our system, and of course to our reputation.

[Nick Thomas-Symonds]

Q From what you are saying, there is a practical solution for any legitimate concerns there may be. There is also a situation—in a police station, for example—where you can have a duty solicitor or lawyer made available. That person could be someone of particular standing and reputation in whom we could all have faith and whom we would not have those concerns about.

Richard Atkinson: Absolutely. Again, code H allows exactly for that. If there are specific concerns about a lawyer, the duty lawyer or solicitor can be called to come and advise. That maintains privilege and maintains the defendant’s access to advice at that point.

[Mr Wallace]

Q In your earlier replies, you talked about how an individual who was detained could have a conversation without legal advice or compromising themselves. It is right, is it not, that in this environment such a conversation would not be admissible in court, under the grounds of the stop?

Richard Atkinson: Not necessarily, because although there is a provision to limit its use, it is not absolute, is it? There are three exceptions where it can be used.

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[Mr Wallace]

Q Are you happy with the Bill’s oversight of that process, with the judicial commissioners and the independent commissioners being the ones who give the authorisation to retain or destroy material?

Richard Atkinson: Yes, but the issue is whether privilege is breached prior to that.

[Nick Thomas-Symonds]

Q Staying on this point, but moving away from the distinction about whether a document is privileged, do you think it would help if the Bill said, “Every single time this power is used, the commissioner will be informed about it”?

Richard Atkinson: Yes, I do.

[Mr Wallace]

The judicial commissioners will be the oversight for the use of the hostile port stops overall—the annual report or whatever it is.