On 17 September 2015 David Anderson QC, the independent reviewer of terrorism legislation, published his annual report on the operation of the Terrorism Acts 2000 and 2006. In the report he discusses the significance of proposals for a new Counter-Extremism Bill in terms of the limits the State may place on “some of our most basic freedoms". That same day David Cameron also announced a new duty requiring universities and colleges “to stop extremists radicalising students on campuses” which will come into force today.

On the BBC Victoria Derbyshire programme, David Anderson QC discussed the difficulties in identifying proposals for a Counter-Extremism Bill, arguing that criminalising the views of individuals could place “all sorts of people under suspicion”. He explained that existing legislation on inciting violence or hatred already provides a mechanism by which to challenge extremist behaviour.

Is further legislation necessary?

There are concerns about the impact a new Counter-Extremism Bill may have on freedom of expression and civil liberties. The right to freedom of expression has long included the right to offend (Handyside v UK (1976)). It is well established that annoying, rude or offensive behaviour will not necessarily constitute a criminal offence. The relevant CPS guidance points out that overuse of the existing legislation has, “The potential for a chilling effect on free speech”, and therefore encourages prosecutors to exercise, “considerable caution” before bringing charges.

Notwithstanding the right to free speech there is significant provision in the current law for offences which can impact an individual’s freedom of expression where it is deemed proportionate or necessary to do so.
With the advent of the internet and social media the application of section 1 of the Malicious Communications Act 1988 (indecent; grossly offensive; or threatening messages) and section 127 of the Communications Act 2003(indecent; grossly offensive; obscene or menacing messages) has been discussed widely, see our blog post.

Further offences which may be relevant include offences of inciting racial or religious hatred or hatred on grounds of sexual orientation under Part III of the Public Order Act 1986. In the case of inciting racial hatred the relevant conduct must involve the use of threatening, abusive or insulting words, behaviour or material.

Sections 44 to 46 of the Serious Crime Act 2007 can be applied where an individual engages in conduct capable of encouraging or assisting another in the commission of an offence.

The aforementioned legislation exists over and above the wide raft of offences under the Terrorism Acts 2000 and 2006. These acts include specific terrorism offences relating to violence, possession of information for terrorist purposes and also incitement to terrorism such as section 59 Terrorism Act 2000whereby a person commits an offence if he incites another person to commit an act of terrorism wholly or partly outside of the United Kingdom.

Is further legislation desirable?

The Government has spoken about the need to attack the “ideology of Islamist extremism” but how does one attack an ideology and by what standards will the Government define “Islamist extremism”?

It awaits to be seen exactly what measures will be included in a Counter-Extremism Bill which is expected this autumn. In the meantime Teresa May has said she will respond formally to David Anderson QC’s report. The debate as to the right balance between the protection of society and freedom of expression looks set to continue for the foreseeable future.