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The Terrorism Act 2000 - commentary

 

by James Hammerton

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The UK's Terrorism Act 2000 was passed and received Royal Assent in the summer of 2000. It will be law by spring 2001. You can find it online at the HMSO website.

This legislation marks a serious assault on civil liberties, using an extremely broad definition of terrorism that would cover those who voice support for armed resistance against repressive regimes, those who damage property in protest at things they oppose (e.g. anti-roads protestors digging tunnels, anti-GM crops protestors destroying GM crops) or even those who organise mass faxing as a form of protest against governments.

It gives the Home Secretary the power to outlaw an organisation (without having to prove a case against it in court) he believes may be concerned in terrorism.

It also gives the police powers to search or arrest people without warrant merely on suspicion of being a terrorist, creates various offences where the burden of proof may be on the defendant to prove their innocence and even makes it an offence to wear clothing that makes the authorities suspicious you may be a member or supporter or a proscribed organisation.

The index and introduction below gives a quick summary of the main problems with this bill, and provides links to full discussion of these problems later in this document. There is also a links section to related material.

 

Index and introduction

This bill is worrying on several grounds:


 

The definition of terrorism
To paraphrase section 1: an act of terrorism is any specified action, the use or threat of which is designed to influence any government or to intimidate the public in order to advance a political religious or ideological purpose. The specified actions are actions which:

    involve serious violence against a person,
    cause serious damage to property,
    endangers a person’s life (other than the person committing the act),
    create a serious risk to the health or safety of the public
    or are designed to interfere with or seriously disrupt an electronic system.

On the face of it, protesters who destroy GM crops or dig tunnels on a site for a new road are causing serious damage to property in order to influence the government for a political purpose. Causing serious damage to property ought to be and is a crime, however to brand Swampy, Greenpeace et al as terrorists and subject them to anti-terrorist laws is quite another thing.

A further point is that many offences and powers are defined with references to this definition. For example, sections 32 to 39 define the notion of a “terrorist investigation” and determine the powers of the police and the obligations of those under investigation. Given the wide definition of terrorism, the police could order a “terrorist investigation” of any organisation that endangers public safety or health or causes serious damage to property for any political purpose and to influence any government.

Thus a nurses’ union could become the subject of a “terrorist investigation” due to a strike over pay that “endangers public health”, with attendant duties to not use their computers as it might “interfere with the investigation” (section 39) and not to inform anyone since it might prejudice the investigation (section 39). The police could order searches of the union offices (schedule 5) for any incriminating information and bank accounts to be frozen, and prevent the union from raising money to support the strike (section 15).

Another possibility is that of an organisation that is campaigning against a repressive overseas government. It decides to do a “mass fax” of the government’s offices, thus “interfering with”, or even “seriously disrupting”, “an electronic system” that the government in question owns. Since the repressive government was about to sign an economically important deal with the UK, the UK government decides to accede to the repressive government’s request to do something about the protest in order to smooth the deal.

Thus the campaigning organisation becomes the subject of a “terrorist investigation” with similar consequences as in the previous scenario. And its most respected and influential committee member, a director of a research laboratory, is charged with “directing a terrorist organisation”(section 56) which carries a possible life sentence as punishment. Note that the activities someone directs under this offence need not themselves be terrorist and it does notreturn to index of 'Terrorism Act 2000' page at magnacartaplus matter at what level the direction takes place. All he or she needs to have done is somehow directed some of the activities of the organisation concerned!

 

 


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The home secretary can proscribe an organisation he believes is concerned with "terrorism".
Section 3 allows the Secretary of State to proscribe an organisation if he believes it to be “concerned in terrorism”. It is deemed to be concerned in terrorism if it:

    commits or participates in acts of terrorism,
    prepares for terrorism,
    promotes or encourages terrorism,
    or is otherwise concerned with terrorism

Schedule 2 lists the organisations proscribed when the Act was passed in Parliament. On February 28th 2001, the Home Secretary, Jack Straw, submitted a further 21 groups for proscription, in a list to be ratified by parliament.[2]

Note that the Home Secretary is not required to make a case against the organisation in court in order to proscribe it. The organisation does not get to defend itself against the proscription. It can only appeal against proscription after the fact (sections 4 to 7). Thus the Home Secretary can in effect criminalise the members and supporters of an organisation without even having to prove any wrong doing on their part.

Recall how widely the definition of “terrorism” is drawn. An organisation that (the Home Secretary believes) engages in serious damage to property (Greenpeace tearing up GM crops?) could be proscribed under this. An organisation that “interferes with” an “electronic system”, e.g. organising a mass faxing of a government? (the mass faxing would risk overloading the faxes and prevent other faxes coming in), would also fall under this heading. An organisation that encourages such actions without engaging in them itself could be proscribed. And most vague of all an organisation that is somehow “concerned with” (organises rallies against?!) “terrorism” could be proscribed.

If proscribed, membership and support for an organisation would become an offence punishable by upto 10 years in prison (see sections 11 and 12). Arranging a meeting to be addressed by a member or professed member of the proscribed organisation would be an offence (section 12) similarly punishable. Addressing a meeting with the aim of encouraging support for the organisation or its activities would also be an offence punishable by upto 10 years in prison. Wearing clothing or carrying an article that makes the authorities suspicious that you may be a member of the proscribed organisation (section 13) is also an offence, but punishable by 6 months in prison.

The proscription mechanism marks a serious assault on freedom of association and freedom of expression. This might be justifiable for use against aggressive, armed organisations that engage in bombing, shooting or otherwise attacking civilians, e.g. paramilitary groups such as the IRA (currently these are the only proscribed groups).

However, the definition of terrorism, in combination with the vague grounds for proscription and its associated offences, could allow a UK government to outlaw groups that no-one would seriously regard as terrorist, without them even needing to have actually engaged in any violent actions, or even any damage to property whatsoever. The group’s members and supporters could then all be rounded up and jailed, and anyone who voices support for the group or its activities could also be jailed. Even people who arrange meetings with members of the organisation (a meeting being defined as a meeting of 3 or more people) could be jailed. return to index of 'Terrorism Act 2000' page at magnacartaplusThese are powers a potential Hitler or Stalin would love to have on the books, on gaining office.

 

Powers to arrest and search without warrants
are granted to the police where they suspect someone to be a terrorist.

Sections 40 to 43:

Define a terrorist as someone who has committed an offence under sections 11, 12, 15 to 18, 54 and 56 to 63 of the Act, or someone who has been concerned in the commission, preparation or instigation of acts of terrorism. Note the vagueness of the phrase “concerned in”, and as to what “instigation” means. Recall that causing serious damage to property or hacking into a computer system for a political purpose is covered by the definition of terrorism.

Allow the police to arrest someone without warrant on suspicion of being a terrorist (as defined above). There is no requirement for the police to give the grounds for their suspicion. A person can then be held for up to 48 hours (with normal arrests it is only 36 hours) before applications to extend the detention are required or the person has to be released

Allow the police to apply for a warrant to search premises for a suspected terrorist. They only need to give their grounds for believing the suspect to be at the premises, and do not need to give the grounds of their suspicion of the suspect.

Allow the police to stop and search a person whom they suspect to be a terrorist (including somone arrested under such suspicion) in order to see if he holds any evidence he may be a terrorist (section 43). Anything the police find during such a search and regard as evidence the person may be a terrorist may be seized and retained. Again here, recall how widely defined “terrorism” is, and note that the police do not have to justify their suspicions.

These are breathtaking powers. On suspicion of being a terrorist (and remember how widely terrorism is defined here!), you can be arrested without warrant, stopped in the street and searched, or both.

The police can obtain a warrant to enter a building and drag one of its occupants out on suspicion of being a terrorist, without any evidence needed and without the police being required to disclose the reasons for their suspicions. All they need to demonstrate is that there are grounds to believe the person they want is in the building.

Consider how many things could be used to damage property. All that is necessary is for something you could be carrying to be regarded as evidence.

The scope for abuse of these powers without any redress is immense. The wide definition of terrorism, the vagueness of the definition, and the return to index of 'Terrorism Act 2000' page at magnacartaplusvagueness of the grounds for searching and arresting someone, allow these powers to be used against just about anyone.

 

Powers to stop and question anyone in Northern Ireland
with respect to a recent explosion or incident endangering life, or with respect to someone killed in such an incident, are granted to the police via Section 89. Failure to stop, identify yourself, give your movements and answer the questions to the best of your knowledge and ability will result in a fine.

 

Reversals of the burden of proof
Offences defined in sections:

11 (membership of a proscribed organisation),
12(2(c)) (arranging or assisting in arranging a meeting to be addressed by a member of a proscribed organisation),
18 (money laundering),
19 (failure to disclose information -- see below),
39(2)&(4) (disclosing information that affects a terrorist investigation),
54 (weapons training),
57 (possession for terrorist purposes -- see below) and
58 (collection of information -- see below),

to varying degrees, require the defendant to prove they are innocent rather than the prosecution to prove that they are guilty.

It should be noted however that Section 118 mitigates most of these reversals in that, if the defendant can adduce [1] evidence to raise an issue with respect to the matter, the court shall assume the defence is satisfied unless the prosecution can prove beyond reasonable doubt it is not. However section 118 does not cover the offences in sections 11, 18 or 19. This means for example that if you are a member of a proscribed organisation (section 11), you have to prove that you joined before it was proscribed AND did not take part in any of its activities since proscription. I.e. you have to prove a negative!

The effect of Section 118 is to almost but not quite remove the reversal of the burden of proof. If you make a credible claim about something as part of your defence that casts doubt on the matter at hand, then the court can assume the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not. In practice this means it is quite probable that a defendant with decent legal advice will be able to put the burden of proof back on to the prosecution with such matters. However it does require the defendant to mount a specific defence, where ideally the prosecution should be required to prove its case.

For example, Section 57 (see below for the offence of possessing an article for terrorist purposes) allows the court to assume you were in possession of an article if it was found on any premisses at the same time as you, unless you can prove you did not know it was there or did not have control over it. Under section 118, if you can make a credible claim that you did not know it was there or that you had no control over it then the prosecution will have to prove otherwise for the court to make this assumption. However this does mean that if you were to remain silent about whether or not you knew the article was there (or the claim was not regarded as credible), the prosecution does not need any evidence that you did know it was there or that you were in control of it, in order for the court to assume you possessed it. Under these circumstances, the burden of proof is still reversed.


Collecting or possessing information useful for terrorist purposes is an offence
where the defences has to provide a reasonable excuse for possessing the information.

Section 58 states that a person commits an offence if he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, or he possesses a document or record containing information of this kind. If charged with this, a defence has to be provided (see Section 118) that the defendant's possession or collection of the information has a reasonable excuse behind it.

Given the wide definition of “terrorism” and the possible categories of information that could be useful for “terrorism”, this law could be used to harass activists who might not have any intention of committing terrorist acts, who are not members of terrorist organisations and who do not condone terrorism, e.g. perfectly innocent activists.

For example, all of the following information could be useful for terrorism under the Act’s definition: names and addresses of MPs, businessmen or organisations; details of security flaws in a major operating system such as Windows or Linux; details of which chemicals can form explosive combinations; informationreturn to index of 'Terrorism Act 2000' page at magnacartaplus about which substances are harmful to humans and where to buy tools that could be used to cause damage to property (e.g. the address of the local hardware store!).

Anyone who has this sort of information could be harassed by use of this law.

 

Possession of an article where the authorities suspect it is for terrorist purposes is an offence
where the defendant must provide a credible defence that he did not possess it for terrorist purposes.

Section 57 makes it an offence to possess an article in circumstances that give rise to a reasonable suspicion that the possession was for purposes connected to the instigation (a vague concept...), commission or preparation of terrorist acts. Bear in mind how widely defined “terrorist act” is for this and consider that it could cover possession of a computer and modem, or anything that could cause serious damage to property.

Given the vagueness of the concept of "instigation" of an act and the wide definition of terrorism, this offence could cover possession of anything from a computer hooked to the internet (useful for interfering with or disrupting electronic systems or for downloading information of use to terrorists!) to a hammer (which is useful for causing damage to property). A computer or phone can be used to communicate with someone which could certainly be useful for "instigating" a terrorist act.

If charged with this offence, the defendant has to provide a credible defence that his possession was not for such a purpose. He cannot just sit back and demand the prosecution to prove that he possessed it for a terrorist purpose. He must make a claim the court finds credible that he did not possess it for that purpose, a defence which the prosecution would then have to prove is not the case beyond reasonable doubt.

However the main usefulness of such an offence to the authorities is that someone could be arrested on very vague grounds. Once arrested, they can be questioned and searched, and their effects gone through for further evidence. This means the police could use arrests for this offence in order to harass and gather information. Note the offence is not that you possessed the article with the intent to use it for a terrorist purpose, but that you possessed it in circumstances where the authorities suspect you might use it for a terrorist purpose.

 

Wearing suspicious clothing made an offence
Section 13 of the Bill makes it an offence to wear an item of clothing or to wear, carry or display an article in public in such a way or in such circumstances as to arouse reasonable suspicion that you are a member or supporter of a proscribed organisation. This offence is punishable by up to 6 months in prison and/or a fine, on summary conviction (i.e. in a magistrates court).

In other words, if you wear or carry something that makes the authorities think you are a supporter of, for example, the IRA or the UVF, then they can bang you up for 6 months on the judgement of a magistrate, and impose a fine. Don’t wear t-shirts proclaiming either your support for or opposition to a united Ireland, lest you fall foul of this.

 

Failure to inform the police
of any suspicions or knowledge you have (in the course of your profession, trade, business or employment) that someone is fund-raising, funding or money-laundering for terrorist purposes, or is using or possessing property for terrorist purposes is an offence (see Section 19). The defendant has to prove he had a reasonable excuse not to have made the disclosure.

This would make it difficult for investigative journalists to investigate terrorism and, given the wide definition of terrorism, again could be used to harass return to index of 'Terrorism Act 2000' page at magnacartaplusperfectly innocent people.

 

Many offences in Northern Ireland will be tried without a jury but the courts will still have the same powers as a court with a jury (including heavier sentencing than a magistrate’s court). Schedule 9 of the Bill lists these offences, and Section 75 details the mode of trial for these offences.

The scheduled offences include most of the offences defined in the Bill and such serious offences as murder, manslaughter or grevious bodily harm.

 

Arranging, assisting in arranging or managing a meeting to be addressed by a member or professed member of a proscribed organisation
is an offence under section 12 of the Bill. A meeting is defined as a meeting of three or more people (whether or not the public are invited). Thus the following would fall foul of this:

Someone organising a debate between a member of a proscribed organisation and someone opposed to that organisation.
An investigative journalist trying arrange a meeting with a member of a proscribed organisation, other than on a one on one basis.

Someone found guilty of this could face 10 years in prison!

 

Related links

James Hammerton

end notesreturn to index of 'Terrorism Act 2000' page at magnacartaplus

1 adduce: bring forward.

2. A full list of proscribed groups is available at The Electronic Telegraph



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