Counter-Terrorism and Border Security Bill (First sitting)

Simon Hoare Excerpts

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

[The Chair]

Thank you.

Gregor McGill: I do not intend to say too much more than my colleague, but I will reflect on something that Mr Basu said—that the legislation is now some two decades old. There have been significant changes in technology, society and the threat to the UK. In the CPS we feel that the legislation should reflect those changes.

I will put my cards on the table straightaway: we support this legislation. In the CPS we try to prosecute all terrorist activity where it meets the test in the code for Crown prosecutors. The Bill addresses both the evolving terrorist threat and the changes in technology, and it should provide the CPS with the ability to prosecute offences that previously we would not have been able to prosecute. In the CPS we are having to put more resources into our division that deals with this type of offending, to reflect the spike in activity last year.

[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?

--- Later in debate ---

[Neil Coyle]

I will take that as a yes.

[Simon Hoare]

Q You may have a different view of this question, depending on which end of the telescope you are looking through. Is there anything that you would have liked to have seen in the Bill to help you with your respective jobs and tasks that is not there?

Gregor McGill: From a Crown Prosecution Service perspective, the Bill is a proportionate response to the threat we face.

Assistant Commissioner Basu: We have discussed the designated area offence and, briefly, the Protect duty. I caveat that by saying I understand how difficult a Protect duty would be. Some 80% of British businesses are small and medium-sized enterprises and I know it would be difficult. I do not want to impose a financial cost on people; I just want them to understand the seriousness with which we need their help. I am not sure that legislation is the right vehicle for that, but it is something we have debated.

The last point I have not mentioned is that we have a continual issue with people marching and waving flags—the whole display issue—and we do not have a power of seizure of flags, which is part of the evidential chain for a successful prosecution. That is a minor point. Otherwise, it is a well-balanced set of proposals.

[Gavin Newlands]

Q If I can draw attention to schedule 2, the retention of biometric data. Mr McGill, we—or certainly I—have heard that removing the oversight accorded by the Biometrics Commissioner could be seen as a retrograde step. Any data vulnerability is an issue, but it is particularly important when it comes to biometrics. In America there was a hack of 5.5 million unencrypted fingerprints, which would obviously be an issue if it were to happen over here. With all that in mind, could you provide any examples that would support the notion that the detection of crime is improved by retaining the biometric data of people who are not charged, whose charges are dropped or who are, indeed, found innocent?

Gregor McGill: That is quite a wide question. I do not have specific examples of that, although we could look for them. What we do know is that successful investigations and prosecutions use a number of investigative tools and evidence from different places. The more powers that investigators and prosecutors have to exercise those safeguards, the stronger the prosecutions and better the results. An example of where we have used biometric data for that? Off the top of my head, I do not know in these circumstances.

Assistant Commissioner Basu: The most famous example in recent years was Sardar, a cab driver from Wembley, in 2014. The US shared his biometrics with us. He had been overseas and become a terrorist. The reason we were able to match was that in 2007 he was subject to a schedule 7 stop and his biometrics were taken. So he was not convicted of anything. His biometrics were taken and retained for seven years. He was clearly suspected of travelling for a purpose, but not enough to cross the threshold. He travelled and was later convicted of murder.