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

by Kevin Jon Heller

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.


3 Responses

  1. 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 emulated by them in existing circumstances.

    This, it is thought would cover various Jiahdi type material, possibly, likely the Foley tape.

    However, even if does, the lazy thinking lies in the fact that watching the video is not caught by section 1 since this requires publication. And in so far as section 2 covers “possession” with a view to publication, merely watching the video or mere mere possession (e.g. downloading) , is not covered, since the possession must be with a view to dissemination. In addition any prospective dissemination would require intention or recklessness as to direct/indirect encouragement.

    Incidently the offences set out in sections 1 and 2 of the Terrorism Act 2006 are not themselves acts of terrorism, and of course section 1 of the Terrorism Act 2000 does not create an offence of terrorism. “Terrorism” per se is not a substantive offence in the UK. In that sense it is not quite correct to say that the Met Police were saying watching the video “was a terrorist act” as you say, rather as the quotation from the Telegraph indicates they claimed it was a “terrorist offence”. Many of the bespoke terrorist offences, including section 57 and 58 of the Terrorist Act 2000 to which you refer are not in themselves “acts of terrorism”, but they utilise the definition of terrorism set out in section 1 as part of the architecture of the bespoke offence definition.

    As for your analysis of section 57, your conclusion may well be correct but the matter has not been quite treated by the British courts as being as straight forward as you suggest. It is possible that possessing extreme material may amount to circumstances, (depending on the circumstances,) where the circumstances of possession gives rise to a reasonable suspicion that the material is possessed for a purpose connected with the commission, preparation or instigation of an act of terrorism (in this case possibly instigation).

    In Zafar & Ors v R [2008] EWCA Crim 184 (13 February 2008)
    http://www.bailii.org/ew/cases/EWCA/Crim/2008/184.html the Court of Appeal accepted that “possessing a document for the purpose of inciting a person to commit an act of terrorism falls within the ambit of section 57”. However they noted that the phrase “for a purpose in connection with” ..”is so imprecise as to give rise to uncertainty unless defined in a manner that constrains it….[therefore]…..if section 57 is to have the certainty of meaning that the law requires, it must be interpreted in a way that requires a direct connection between the object possessed and the act of terrorism. ” In that scase the materials concerned did not have that attribute. In the Foley video situation it is possible that someone may possess it in circumstances which give rise to a reasonable suspicion that they possess it for the purposes of instigating terrorism. And all that is required is a reasonable suspicion, in which case the individual concerned would need to rely on the defence, and prove that their purpose for possession was not connected with the instigation of terrorism (it’s an evidential rather than legal burden).

    Section 57 was used to secure a number of convictions for that kind of possession prior to the enactment of the offences in sections 1 and 2 of the Terrorism Act 2006. However suffice it to say “watching” the video is not in and of itself covered by any of the offences.

    As for section 58, this is an even more draconian offence than section 57 since the offence is a simple possession offence. The House of Lords in R v G [2009] UKHL 13 (4 March 2009) http://www.bailii.org/uk/cases/UKHL/2009/13.html held

    “Section 58(1) focuses on the nature of the information which the defendant collects, records or possesses, rather than on the circumstances in which he does so. The description of the information is given in general terms: information will meet that description, irrespective of who might commit or prepare an act of terrorism and so be likely to find the information useful. It could be a third party or it could indeed be the defendant himself. So the offence is apt to catch someone who gathers the information and stores it with a view to passing it on to someone else who is preparing an act of terrorism. But, equally, it will cover someone who does these things with the intention of using the information himself to prepare an act of terrorism. Or else, the accused may have gathered and stored the information without having any clear idea of what he intends to do with it. None of this matters, since the legislation makes it an offence simply to collect, record or possess information of this kind. Parliament must have proceeded on the view that, in fighting something as dangerous and insidious as acts of terrorism, the law was justified in intervening to prevent these steps being taken, even if events were at an early stage or if the defendant’s actual intention could not be established.”

    The reason why possession of this material is not caught by section 58 is because section 58 does not mention “instigation,” as you say it only covers commission and preparation, and therefore possession of radical material which might be useful for inciting terrorism is not covered by the offence.

  2. Adrian,

    Thanks for that. You’ll see I’ve considerably updated my post. If I’d had more time, I would have discussed sharing the video. Suffice it to say that even innocent sharing may well run afoul of the Terrorism Acts — another indication how woefully overbroad they are.

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

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