Okay, This Time Britain Really Has Killed Terrorism (Updated)

Okay, This Time Britain Really Has Killed Terrorism (Updated)

Last November, I wrote a post entitled “Terrorism Is Dead, and Britain Has Killed It.” I chose that title because I couldn’t imagine a conception of terrorism more absurd than the one argued by the British government and accepted by a Divisional Court: namely, that David Miranda’s mere possession of documents illegally obtained by Edward Snowden qualified as terrorism under the Terrorism Act 2000.

I obviously need to expand my imagination.

Why? Because the British government’s is now arguing that merely watching the video of James Foley’s execution is terrorism. From the Telegraph:

Viewing or sharing the harrowing video of James Foley’s beheading online could be regarded as a terrorist offence, Scotland Yard has warned.

A spokesman for the Metropolitan Police said specialists from the Counter Terrorism unit were continuing to examine the footage in order to look for clues as to the identity of the suspected British jihadist but said the public should refrain from viewing the video.

In a statement a spokesman said: “We would like to remind the public that viewing, downloading or disseminating extremist material within the UK may constitute an offence under Terrorism legislation.”

Metropolitan Police Commissioner Sir Bernard Hogan-Howe explained that while viewing the video was technically a crime, his officers would be more focused on tracking down those who shared the footage or glorified it.

Um, no — viewing the Foley video is not “technically a crime.” Foley’s execution is a horrific act by a horrific organisation. But there is absolutely no plausible argument that merely watching a video of it qualifies as terrorism under the Terrorism Act 2000 — not even in light of the awful Miranda judgment. We can see why by quoting the UK Independent Reviewer of Terrorism Legislation‘s summary of that case:

What the Miranda judgment reveals is that the publication (or threatened publication) of words may equally constitute terrorist action. It seems that the writing of a book, an article or a blog may therefore amount to terrorism if publication is “for the purpose of advancing a political, religious, racial or ideological cause”, “designed to influence the government” and liable to endanger life or create a serious risk to health or safety.

There are two obvious problems with considering the mere act of watching the Foley video an act of terrorism. First, watching the video is not “liable to endanger life or create a serious risk of health or safety,” as required by s 1(2) of the Terrorism Act 2000 — unless, of course, we think that anyone who watches it will somehow magically be transformed into an ISIS terrorist. Second, although I don’t understand why anyone would want to watch the savage murder of an innocent person, individuals are clearly not watching the video “for the purpose of advancing a political, religious, racial or ideological cause” or because they intend “to influence the government.” So no, watching the Foley video does not qualify as a terrorist act under s 1(1).

Nor does merely watching the Foley video violate any of the substantive offences in either the Terrorism Act 2000 or the Terrorism Act 2006. (Section 1(1) is not an offence in itself; it provides the definition of terrorism for the substantive offences.) In terms of the Terrorism Act 2000, it’s not “support” under s 12, because that section requires the defendant to have “invite[d] support for a proscribed organisation.” It’s not “use and possession” under s 16, because that section, like s 1(1), requires the specific intent to promote terrorism. It’s not “possession for terrorist purposes” under s 57, because merely having the Foley video on a computer (which streaming does not even involve) does not “give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism.” And it’s not “collection of information” under s 58, because an execution video, though disgusting, is not “a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism.”

Merely watching the Foley video also does not run afoul of the Terrorism Act 2006. Section 1 criminalises “encouragement of terrorism,” but it applies only to those who “publish” a statement that encourages “the commission or preparation of acts of terrorism.” Watching a video is not publication. For similar reasons, watching a video does not qualify as “dissemination of terrorist publications” under s 2 — not even in light of s 2(2)(f), which criminalises possessing a terrorist publication “with a view to its” dissemination.

In his most recent report, the Independent Reviewer wrote that “[a] statutory definition [of terrorism] so broad that the enforcement authorities resort to their own rules of thumb in order to make sense of it is unhelpful.” I think the Metropolitan Police’s argument about the Foley video makes his point.

NOTE: I have updated the post in response to Adrian Hunt‘s excellent comment below, which deserves to be read in full.

Topics
Courts & Tribunals, Foreign Relations Law, International Criminal Law, International Human Rights Law, Middle East, National Security Law
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Adrian Hunt

Hi Kevin. Useful post. Thanks One problem with the Metropolitan Police’s claim is that we do not know which “terrorist offence” they are saying is engaged. However it is thought that they may have been (mistakenly , wrongly, and irresponsibly) thinking (lazily) of two offences not mentioned in your above analysis, which are provided for in sections 1 and 2 of the Terrorism Act 2006. – see http://www.legislation.gov.uk/ukpga/2006/11/section/1 and http://www.legislation.gov.uk/ukpga/2006/11/section/2 . These offences were in part created in order to “tackle” utterances of “radical preachers”, and the dissemination of various types of material especially, though not exclusively, on the internet. Unlike conventional common law incitement (which in any event has subsequently been abolished and replaced by a statutory offence), these offences seek to criminalise “indirect encouragement” – which is of course something of a contradiction in terms, but the statute says that “indirect encouragement” includes “any statement etc which (a) glorifies the commission or preparation (whether in the past, in the future or generally) of such acts or offences; and (b) is a statement from which those members of the public could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be… Read more »

Benjamin Davis
Benjamin Davis

The Metropolitan Police are in thought crime land. Thanks for all the posts on this.