The speech by Max Hill QC, independent reviewer of terrorism legislation, on 24 October was an extremely thoughtful and considered summation of the UK’s legislative response to terrorism. One of the topics he addressed was the Government’s proposed “update” of terrorism laws (published online on 3 October) and prompted by the terrorist atrocities of 2017. The Home Secretary, Amber Rudd, has announced her intention to conduct a “wide-ranging” review of the Government’s counter-terrorism strategy, but has already proposed two specific legislative changes – criminalising the “repeated” viewing of terrorist content online; increasing the maximum sentence for certain offences from 10 to 15 years imprisonment. The first of these may seem minor but, as with so many rushed responses, it smacks of desperation, futility and unfairness.

The Current Position

Before examining the review in more detail, it is worth pointing out that the field of counter-terrorism is hardly lacking legislation. The Terrorism Act 2000 creates a wide range of criminal offences related to terrorism including from membership of certain organisations to funding terrorism, possession of articles for use in terrorist purposes and weapons training. The Terrorism Act 2006 creates further offences including encouraging terrorism, disseminating terrorist publications and preparation for terrorist acts. Many of these offences carry a maximum sentence of life imprisonment. In addition, terrorists can of course be prosecuted for any ordinary criminal offence including murder, inflicting grievous bodily harm and so on. Twenty years ago it might legitimately have been said that the British state lacked the legal tools to bring terrorists to justice – that is no longer the case. Terrorism demands severe criminal sanction and English law provides it.

In the face of this array of offences, it might be thought that there would be nothing left for the Government to legislate in the field of counter-terrorism. In fact, low-tech methods used, by the London Bridge and Westminster attackers, for instance, are more susceptible to prosecution under non-terrorist legislation than previous terrorist attacks. If, as seems likely, there is a trend towards the use of such methods, it can be dealt with using existing legislation.

Not so according to the Home Secretary. The Government has already proposed two changes which are ill-advised and problematic.

Widening Section 58 of the Terrorism Act

One change the Government wants to make relates to the offence which covers “collection” of terrorist information. Currently, section 58 of the Terrorism Act 2000 criminalises possessing, collecting or making a record of information likely to be useful to someone preparing or committing an act of terrorism. “Record” explicitly includes electronic material. No offence will be committed if the defendant has a “reasonable excuse” for possessing, collecting or making the relevant material. Thus, the offence is already extremely wide.

The Government’s proposal seems to widen the offence to cover “repeatedly” viewing or streaming “terrorist content”. It is not clear what this means – does it involve only such information as would already be covered by the section, or does it include material which, whilst not useful in the preparation of terrorist acts, is “extremist” and justifies atrocities? The online summary of the review[1] merely refers to “terrorist content” and offers no further definition. However, the Home Secretary’s speech seems to suggest the Government is seeking to ban viewing of extremist material as well. Her speech singles out “viewing” of “jihadi websites, far-right propaganda and bomb-making instructions”.

The key problem with the Home Secretary’s approach is that it elides perusal of objectionable material with preparation for acts of violence. It is vital to avoid such confusion. Many individuals may view extremist material without having the least intention of committing any acts of violence (they may be opposed to the aims of the authors of the material and view it with a sense of horrified fascination). Unlike the making of child-pornography, the creation of extremist material does not necessarily result in immediate psychological harm. For this reason, it is much more difficult to justify the banning of the mere viewing of extremist material.

Furthermore, even among those ideologically sympathetic to violence, many individuals may never cross the line between supporting atrocities and actually planning or executing them. The idea that people who support atrocities without taking action should be prosecuted at all is open to question. After all, such individuals have not actually harmed anybody. Even if they should be prosecuted, it seems bizarre to indict them under the same section as those collecting information. Such a move risks creating the impression that reading extremist material and collecting information to help terrorists are of similar severity, which is not the case.

Even if the Government only seeks to criminalise the viewing of material which would currently fall within the section (that is, information which is useful in preparing or executing acts of terrorism rather than being merely extreme) the proposal is troubling. Such a change would be both unnecessary and risks criminalising people who have no links to terrorism whatsoever. It must be remembered that, even as it currently stands, there is no need to prove any actual involvement with terrorism or any intention to carry out a terrorist act. The only requirement is the possession collection or making of a record of information which is “likely” to be of use to those planning terrorism. For example, an individual who has a morbid fascination with terrorism but has no inclination whatsoever to undertake any violence themselves or assist others to do so; if they viewed material on how bombs are constructed, they would have committed an offense. Equally, an individual who was naïve and curious might view material falling foul of the section online.

Of course, such a defendant would likely claim they had a “reasonable excuse” for what they did. However, it is very easy to see such an argument failing where, as in this example, the facts of the defence are unattractive. Certain categories of people (journalists for example) would almost certainly be able to use the defence but those whose reasons may be connected with naivety or lack of socialisation could be much more vulnerable. In other words, the problem with the “reasonable excuse” defence is that it lacks any positive definition and gives individuals no guidance on what conduct is permitted.

Other individuals who might fall foul of an expanded section 58 include children dared to collect or possess information falling within the section, the learning disabled and those manipulated by others. Are these the kind of people that should be prosecuted for this offence? Of course, such individuals are always at risk of prosecution for any crime; but, the ease of accessing information online and the apparent anonymity of the internet make an expanded section 58 particularly dangerous to them. So, even if only the viewing material useful to terrorists is banned (as opposed to extremist material per se) the difference between the criminal and the innocent could end up being no moral culpability, but a few clicks of a computer mouse. It would surely be better not to criminalise the viewing of extremist material unless viewers are inspired to take action because of the propaganda.

Ironically, another problem with the expansion of section 58 (whether the measure covers all extremist material or only that useful in preparing terrorism) arises from the very part of the measure, which seems to be designed to place limits on its impact. The Government’s online summary of the review states that only “repeated” viewing of information likely to be of assistance to terrorists would be criminalised. Nowhere in that summary (or elsewhere) is the word “repeatedly” defined. This presents two major difficulties.

First, how could the word “repeatedly” be sensibly defined in a new section 58? The term could mean “more than once”, in which case someone viewing material twice could be found guilty of the offence. This seems extremely harsh. The difficulty is in choosing how many incidents of viewing should trigger criminality. Why should someone who views material, say, six times be innocent whereas someone who views it seven could be sent to prison for several years?

Second, it may well be almost impossible to sensibly differentiate one viewing of proscribed material from another. If someone views the material for an hour, leaves the computer for two hours and then returns to resume viewing it, does that count as two occasions and therefore “repeatedly” viewed? If a different individual views material for fifteen hours without a break on one occasion, and there is no evidence of any further viewing, should he escape liability because they have only viewed banned material once and therefore not repeatedly?

If it ain’t broke…

The obvious problem with the proposed measures is the reason given for their introduction. The spring and summer of 2017 saw a series of brutal attacks on British civilians by jihadi terrorists, which killed over thirty people and wounded many more. The Government’s review of terrorism legislation was an explicit response to these incidents. In general terms, such a response is welcomed, but it is difficult to see how the precise nature of these proposals associated with the review would have in any way assisted in the prevention of any of these attacks.

Some of the attackers involved in the 2017 atrocities were not known to hold extremist views, whilst other individuals who had no connection to these events were known terrorist sympathisers. In theory, if one of the future attackers had happened to look at terrorist material and if that viewing had been detected by the authorities and if they had chosen to prosecute the individual at a time when they were planning a terrorist atrocity, the proposal may have had a positive impact. Such a theoretical benefit is surely too remote to justify amending primary legislation of any kind.

It is difficult to see any serious linkage between the proposed reforms and the stated aims of the Government. Such announcements may grab headlines but they are unlikely, alone, to add much to the already extensive arsenal of legal weapons available to the state in fighting terrorism. On the other hand, the impact of the proposed widening of section 58 of the Terrorism Act on individual defendants could be severe. Final responses to the Government’s review of terror legislation must wait until its results are published. But if its proposals are cut from the same cloth as the measures the Government is already advocating, there is significant cause for concern.

Passing legislation is relatively easy and cheap for Governments, but it is rarely effective by itself. The lack of any convictions under the Female Genital Mutilation Act 2003, which is supposed to stop this dangerous practise from occurring, demonstrates the futility of legislation unsupported by proper enforcement. This lack of action cannot be defended by arguing that the law is acting as an effective deterrent since there were reportedly 5702 new cases of FGM in the UK throughout 2015 and 2016[2].

The sky will not fall if these measures are passed. The vast majority of us will be unaffected and the machinery of British justice will continue stolidly on. But, beneath the surface, something significant will have happened. The British Government will (not for the first time) have criminalised previously legal activity and increased potential penalties without sufficient reason, and perhaps for its own political ends. The UK’s legal system will have taken yet another step away from the measured practicality. That, on its own, would be a tragedy. for which it is rightly famous. That, on its own, would be a tragedy.

This article was originally published in Criminal Law & Justice Weekly, and can be accessed here behind a paywall.