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Public Bill Committees

Debated on Tuesday 26 June 2018

Counter-Terrorism and Border Security Bill (First sitting)

The Committee consisted of the following Members:

Chairs: Mrs Anne Main, † Joan Ryan

† Bowie, Andrew (West Aberdeenshire and Kincardine) (Con)

† Chapman, Douglas (Dunfermline and West Fife) (SNP)

† Coyle, Neil (Bermondsey and Old Southwark) (Lab)

† Dakin, Nic (Scunthorpe) (Lab)

Doughty, Stephen (Cardiff South and Penarth) (Lab/Co-op)

† Foster, Kevin (Torbay) (Con)

† Hall, Luke (Thornbury and Yate) (Con)

† Hoare, Simon (North Dorset) (Con)

† Huq, Dr Rupa (Ealing Central and Acton) (Lab)

† Khan, Afzal (Manchester, Gorton) (Lab)

† Lopez, Julia (Hornchurch and Upminster) (Con)

† Maclean, Rachel (Redditch) (Con)

† Maynard, Paul (Lord Commissioner of Her Majesty's Treasury)

† Newlands, Gavin (Paisley and Renfrewshire North) (SNP)

† Pursglove, Tom (Corby) (Con)

† Smith, Eleanor (Wolverhampton South West) (Lab)

† Thomas-Symonds, Nick (Torfaen) (Lab)

† Wallace, Mr Ben (Minister for Security and Economic Crime)

† Warman, Matt (Boston and Skegness) (Con)

Nehal Bradley-Depani, David Weir, Committee Clerks

† attended the Committee


Assistant Commissioner Neil Basu, Metropolitan Police

Gregor McGill, Director of Legal Services, Crown Prosecution Service

Richard Atkinson, Chair of the Criminal Law Committee, The Law Society

Public Bill Committee

Tuesday 26 June 2018


[Joan Ryan in the Chair]

Counter-Terrorism and Border Security Bill

Before we begin, let me say that you are welcome to remove jackets or ties—I would call it a day at that—because it is very hot. I have just a few preliminary points. Please make sure that your electronic devices are switched off. Tea and coffee are not allowed during sittings—I have been asked to say that because people keep walking in with coffee cups and so on.

We will consider the programme motion on the amendment paper and then take the motion enabling the reporting of written evidence for publication, before taking a motion to enable us to deliberate in private. We will then talk about the order in which Members may wish to kick off and look at the questions provided—you can of course add in any of your own.

I call the Minister to move the programme motion, which was agreed by the Programming Sub-Committee yesterday.

I beg to move,


(1) the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 26 June) meet—

(a) at 2.00 pm on Tuesday 26 June;

(b) at 11.30 am on Thursday 28 June;

(c) at 9.25 am and 2.00 pm on Tuesday 3 July;

(d) at 11.30 am and 2.00 pm on Thursday 5 July;

(e) at 9.25 am and 2.00 pm on Tuesday 10 July;

(f) at 11.30 am and 2.00 pm on Thursday 12 July;

(g) at 9.25 am and 2.00 pm on Tuesday 17 July;

(2) the Committee shall hear oral evidence in accordance with the following Table:





Tuesday 26 June

Until no later than 10.55 am

Metropolitan Police; Crown Prosecution Service

Tuesday 26 June

Until no later than 11.25 am

The Law Society

Tuesday 26 June

Until no later than 2.45 pm

Max Hill QC, Independent Reviewer of Terrorism Legislation

Tuesday 26 June

Until no later than 3.15 pm

The Law Society of Scotland

Tuesday 26 June

Until no later than 3.45 pm

Liberty; Criminal Bar Association

(3) proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 11; Schedule 1; Clauses 12 to 17; Schedule 2; Clauses 18 to 20; Schedule 3; Clause 21; Schedule 4; Clauses 22 to 26; new Clauses; new Schedules; remaining proceedings on the Bill;

(4) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Tuesday 17 July.

I welcome the consensus on Second Reading about the principles of the Bill. No doubt, we will all explore the details of what goes in it. At our meeting yesterday we came to an accommodation on timings and witnesses. For the record, we should recognise that a number of people we asked to be witnesses either chose not to, or were unable to, come. I do not think that is a reflection on the Bill, but it is why we do not have the full sheet of witnesses put forward by all parties to begin with. I am confident, however, that we have a spread of critics, supporters and objective commentators. Therefore, without holding up the Committee any more, I ask it to agree to the motion.

Question put and agreed to.


That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Mr Wallace.)

Copies of the written evidence the Committee receives will be made available in the Committee Room.


That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Mr Wallace.)

The Committee deliberated in private.

Examination of Witnesses

Assistant Commissioner Neil Basu and Gregor McGill gave evidence.

Q Good morning. May I welcome the two witnesses, who are with us until 10.55 am? Assistant Commissioner Neil Basu of the Metropolitan police, you are very welcome, and we are very pleased you are here in attendance. Welcome also to Gregor McGill, director of legal services to the Crown Prosecution Service. We thought we would start by asking each of you to make a brief statement to the Committee, if you are prepared for that.

Assistant Commissioner Basu: I was not, but I am very pleased to be able to make a statement. My current role as assistant commissioner counter-terrorism policing means that I co-ordinate the network in the UK of nine counter-terrorism units that deliver counter-terrorism policing on behalf of the 43 chief constables. This is quite a responsibility, not least because last year I was senior national co-ordinator for counter-terrorism, responsible for the investigations and for the delivery of Prevent on behalf of policing.

If you boiled my job description down into one simple fact, it is to stop terrorist acts on our soil, along with my big partner, MI5. On my watch, 36 people died and many hundreds were injured. I want the Committee to know that I think about that every day. The reason that I took this job, that I am sitting here giving evidence on, is because I also think about having to stop that every day. Part of that is something that we call the operational improvement review. I led a strategic board along with MI5 that has led to over 100 recommendations, which are all being implemented as we speak. Part of that was also our work with Government along the lines of what legislation might be required, and I see considerable value in the measures set out in the Bill to combat the change in threat that we have experienced post-2017.The nature and scale of the terrorist and hostile state actor threat to this country has evolved and changed. The simplicity and volatility of terrorism often requires us to intervene much earlier to protect the public. Offences previously considered periphery or minor are now seen as indicative of a volatile and unpredictable actor.

As we know, terrorism legislation is nearly two decades old. In the intervening years, there have been significant changes in technology. The reality of the modern world is that technological developments form part of people’s lives and interactions, so legislation should reflect how people live in the modern world. While counter-terrorism policing can describe the operational challenges we face—and they are great, not just from the change and threat of technology—the appropriateness and specifics of each power are obviously a matter for Parliament to decide.

I have just got back from Australia, where I spoke to all my counterparts who run counter-terrorism in the “Five Eyes” countries. I would say that the great strength of counter-terrorism in this country is that we have the most remarkable connection between the UK intelligence community, policing, Government and, I am pleased to say, the general public, because of the UK policing model, which is envied throughout the world.

We must remember that 2017 was horrific. We have seen a shift, not a spike, in the threat. We are probably about 30% up in terms of our investigation workload, but the strength of that model will see us through, along with some additional measures from the operational improvement review and the legislative changes that I believe are required.

Thank you.

Gregor McGill: I do not intend to say too much more than my colleague, but I will reflect on something that Mr Basu said—that the legislation is now some two decades old. There have been significant changes in technology, society and the threat to the UK. In the CPS we feel that the legislation should reflect those changes.

I will put my cards on the table straightaway: we support this legislation. In the CPS we try to prosecute all terrorist activity where it meets the test in the code for Crown prosecutors. The Bill addresses both the evolving terrorist threat and the changes in technology, and it should provide the CPS with the ability to prosecute offences that previously we would not have been able to prosecute. In the CPS we are having to put more resources into our division that deals with this type of offending, to reflect the spike in activity last year.

Q Thank you, gentlemen, for your representations. My question is to Mr McGill because he has his CPS hat on. Clause 3(2)(c) uses the phrase:

“on three or more different occasions the person views by means of the internet a document or record containing information of that kind.”

Does that provide the necessary discretion to prosecutors? Is it clear enough, or would you need greater clarity? Could you comment on that, because the clause has been discussed here?

Gregor McGill: I am aware of the discussion that there has been. Prosecutors require clarity when looking at legislation, because they have to apply that legislation. Approaching this practically—we discussed this beforehand—three seems an appropriate number to us, because we would not want people to be criminalised for inadvertently going on to a website. I have to accept that that could happen. That could be a single occasion. It is a more difficult argument to accept if the person has gone on to it twice, and it is more difficult again if the person has gone on to it three times.

There is of course a statutory defence to the offence as set out, which gives some safeguards. The code for Crown prosecutors has a two-stage test, which is sufficiency of evidence and, if the evidence is satisfied, whether it would be in the public interest to prosecute. There are a number of safeguards in that for us to say that we think the legislation as drafted hits the right balance between protecting society and protecting the rights of a suspect.

Q Welcome, and thank you both for your opening statements. I want to turn first to clause 1 and the expressions of support for a proscribed organisation. The original offence is in section 12 of the Terrorism Act 2000, which says:

“A person commits an offence…if he invites support for a proscribed organisation”.

The new clause in the Bill states:

“A person commits an offence if the person…expresses an opinion or belief that is supportive of a proscribed organisation”.

It then brings in the concept of recklessness. Could both of you give me an example of a type of situation that could not be prosecuted under the previous regime but could be prosecuted under this new regime?

Assistant Commissioner Basu: Yes, I can certainly give you an example of that. The biggest problem we have in counter-terrorism, without a doubt, which is making this a generational challenge, is radicalisation. I think that is a given, from my position, but I could find a great deal of current support in Government and in social media sentiment to say that the ability to radicalise is a significant issue. I will leave the fine legal point of “reckless” to Greg, but it is a well-established criminal tenet, so I do not see that necessarily as an issue.

I could relate a number of studies. One is of Mohammed Shamsuddin. Many of you will have seen commentary on the Channel 4 documentary “The Jihadis Next Door” last year. On 27 June 2015, Shamsuddin gave a speech. In the context of that speech, it was very clear that he supported Daesh and what they were doing. He did not invite others, which is obviously the current test, so he did not meet a section 12 charge. He shouted anti-kufr rhetoric and said, “Allahu Akbar” in relation to the Kuwait mosque bombing. He said that one should not feel sorry for the British who died in Tunisia or for the kufr killed in Kuwait. He criticised Gay Pride and said that gay people should be thrown from tall buildings. Having spoken on recent shootings in Tunisia, he said, “The spark was lit,” and that the listeners knew the rest.

A second example is Omar Brooks, again in 2015, on 4 July. He gave provocative talks and spoke of jihad and of how Islam was spread by the sword and was not a soft religion about peace. Brooks also mocked a sheikh who had spoken against the killing of Lee Rigby. Again, it was clear, when you look at the full tone of his speech, that he supported the concept and principle of Daesh, but he did not invite others, under the terms of the current legislation, and again it would not have met a section 12 charge.

Now, were either of those two people reckless in that they would have thought that their deeds would have encouraged terrorism? My contention is that they absolutely would. What we have seen in the rise of terrorism—particularly with the malleable, vulnerable people not well equipped to understand the nuances of religion or ideology—is that this kind of radicalisation speech has really worked to increase the threat to the UK.

Gregor McGill: I would adopt that. I think there is a gap in the law at the moment that means that we cannot always prosecute people in the circumstances that Mr Basu has set out. You raised the question of recklessness. Do you want me to deal with the question of recklessness?

Please do.

Gregor McGill: As you are aware, recklessness is a concept that is well known to the criminal lawyer. It is currently in the terrorism legislation. It is something that investigative colleagues and prosecutors are aware of dealing with. It has been seen to be ECHR-compliant; that is correct.

The legal definition of recklessness is a subjective test now; the courts made that clear in the 2003 case of G. It is about a person who realises that there is an obvious risk in what they are doing and, realising that obvious risk, goes on to do something that brings about that obvious risk happening.

It is a concept that is well known in terrorism legislation and also well known in the wider criminal law. It is used in a number of offences—for instance, arson, child neglect and some assaults. It is not an unknown concept. It is not unknown to prosecutors and judges, who are used to dealing with these difficult situations.

Q I have a couple more questions. Let us move on to clause 2 for a moment, which is about the publication of an image of an item of clothing or other article. I think this argument probably also applies to clause 1, where we are trying to balance things up—in clause 1, it is freedom of expression versus the offending that we are talking about. In clause 2, where we are talking about the publication of images, presumably we would not want to criminalise a reckless 16 or 17-year-old going to a fancy dress party or something who clearly does not have terrorist intent. They may be doing something very distasteful, but we would not want to criminalise them via this clause. Could you both comment on that balance in relation to clause 2?

Gregor McGill: I agree with you. Most of the decisions that are made in the criminal law are a balancing exercise. Prosecutors have to balance the rights of a suspect against the rights and protection of the public. The code enables us to do that. That is why we have a public interest test that enables us to ask. Even if the evidence in its purest form makes out the criminal offence, it has never been the case here that, just because you prove an offence, you necessarily should prosecute it. Prosecutors have the discretion not to prosecute, and they exercise that discretion very frequently.

Assistant Commissioner Basu: I do not want to be glib about this, but I have worked with Greg for a very long time and I would never get such a case past him anyway, even if I was prepared to put that case. We are far too busy on genuine acts of terrorism to be concerned with such a case. What it might point to is somebody who is in trouble and needs a bit of guidance: that is the Prevent tactic under the Government’s Contest strategy. There are some remarkable people on the front line capable of speaking to people and changing their minds about the path they might be following.

The other thing I would say about this clause is that this, again, is a modern technology phenomenon. The idea of dressing up in regalia that would be abhorrent to—hopefully—all of us here and the vast majority of the public has been well-established. The Public Order Act has established that. People just do not attend public assemblies, marches and demonstrations in the same way that they used to. Why would you need to? A tiny fraction of the population might see that for a fraction of a second, but now you can put it online and publicly display your message.

We would look at all the circumstances in relation to how that was being publicised and what you were trying to achieve by that before we looked at any form of executive action.

Q Can I turn to clause 3, before we come to the issue of streaming and so on? This is to Mr McGill. Consider a situation in which someone goes to somebody’s house and that person has, for example, streamed four or five things that we would be unable to prosecute under section 58, as it stands. I have seen it argued that that could or should be prosecuted. Section 5 of the 2006 Act relates to acts “preparatory” to terrorism: why could that not be prosecuted at the moment under that section or any other?

Gregor McGill: The answer to that, I think, is that we are dealing with specific offences under section 58, which is about viewing and streaming material. Prosecutors are adept at looking for other offences that would enable you to deal with the criminality, but the essence of prosecution is that you prosecute the most appropriate offence set out by the facts in front of you.

Prosecutors can sometimes shoehorn offending into other offences, but experience tells us that that can result in problems down the line because there can be technical defences to certain clauses that superficially make you think you can prosecute under those offences, although it is more difficult. Prosecutors will always try to prosecute under the most appropriate offence, and the most appropriate offence for this type of material is the section 58 offence under the 2000 Act.

Q Have there been any attempts to prosecute under different sections, such as section 5 of the Terrorism Act 2006, or is it simply a decision that prosecutors have felt unable to make because of the nature of the offence?

Gregor McGill: Most cases are fact-specific, so it is difficult to talk in general terms. In these particular cases, so much turns on the particular circumstances of each case, the particular evidence in the case and the particular conduct of the person under investigation. It is difficult to speak in generalities. Prosecutors have, of course, tried a number of offences to deal with certain criminality, but generally it is difficult to shoehorn some conduct into offences that were not specifically set out to deal with that type of offending.

Q I have one more question, still on clause 3. Obviously, there is the concept of three viewings, which you referred to specifically in your opening statement, Mr Basu, but there is no time limit in the Act as it stands for viewing three times over a specified period of time. In prosecuting the offence in practice, would the Crown Prosecution Service consider the period over which the three viewings had been made?

Gregor McGill: The CPS prosecutor, in looking at the case, would consider all aspects and look at the particular circumstances and timings of the access. If they were close together, that could tell a story; if they were apart, that could tell a story. We work closely with our investigative colleagues and find out from them exactly what the evidence shows and, if it has been put to the suspect in interview, precisely what they have said about that. But as a prosecutor, you have to look at the evidence in the round and consider all the evidence, including the circumstances in which the contact has happened. Depending on the circumstances of the case, the particular type of contact may tell a particular story.

Q You have drawn attention to a number of areas where these new powers would assist in addressing issues that cannot be addressed at the moment. Are there any other areas that you would like to draw attention to? Are there any other powers that we should be considering in order to make progress against counter-terrorism?

Assistant Commissioner Basu: I did not want to get off clause 3 without making some really important comments about it from the policing perspective, if that is possible, Chair. To answer your question directly, we are very fortunate in this country, with the support of the Government over many decades, to have pretty robust legislation in terms of counter-terrorism.

What we are looking to do—and most of these clauses do it—is close some loopholes, because of the changing nature of the threat and the change in technology. There is very little that was left in the first debates that took place in terms of what would be best to counteract terrorism. One of the major partners that I am looking to involve much more in the counter-terrorism fight is the business sector—and the public sector. We have a Prevent duty that has gone a long way towards getting statutory partners more engaged in the battle, but we do not currently have any licensing, regulation or regime for the business sector to improve its ability to protect its employees, customers and management of events. We do not have that; it is a conversation we are still having.

I think—and you may want to get on to this—that the Australians have a “designated area” offence for people who wish to travel to war zones and fight. Although that would not be retrospective, and therefore would not have great utility in respect of the Syrian conflict, I think it would have utility for the future. If we were dealing with a similar situation in the future, stopping people from going to fight or enabling the prosecution of people fighting in theatre when they return would have great utility to us. Those are probably the two things that I would consider at the moment.

Gregor McGill: The Australians have such a power and they consider it a useful addition to their armament. We do not have a power. As my colleague Mr Basu has said, it would not help us address some of the issues that have happened in the past, but it could help us address some of the issues in the future.

Q Can I turn back to recklessness for a second? Recklessness is a common test in relation to physical acts against the person, but it is not usually used in speech offences. A report from the Joint Committee on Human Rights said 12 years ago, in 2006, that

“recklessness is normally applied to actions that are themselves within the realm of criminality…if you hit someone or deceive them then it is absolutely appropriate for a jury to be able to convict you of an offence even if you did not intend the consequences of your actions. The same nexus between action and consequence should not exist for speech offences. Speech does not naturally reside in the realm of criminality. This is why the element of intention should always be attached to speech offences.”

Could both of you comment on that quote from the JCHR report? Can you determine the difference between speech offences and physical acts?

Gregor McGill: I appreciate what you say. Recklessness is not an unknown principle in criminal law. It is right that I should say, as well, that it is a particular principle that has caused criminal law some issues over the years, particularly in the field of whether such recklessness should be subjective—that is, you understand its nature—or objective, in that it is more from an objective test. As the court, the prosecutors and the investigators are used to dealing with the question of recklessness, these issues can be properly managed through the proceedings. The difficulty as well is that that quote, I understand, was from 2006. The world in 2018 is very different from the world in 2006, and Mr Basu will no doubt tell you that the threat facing us now is very different. That is one matter.

This is often portrayed as a thought crime, but I would say it is not that. The clause is seeking to address someone who is actively supporting a proscribed organisation and doing it in circumstances where they are reckless—by saying what they are saying and by giving that support—as to the consequences of what is happening.

I endorse what Mr Basu said. The threat that we are trying to address here is the threat of radicalisation, which is one of the big threats facing us at the moment. That is the purpose of this and that is the purpose of the recklessness clause.

Assistant Commissioner Basu: I cannot stress strongly enough the effect that charismatic, radicalising speakers, who profess to support proscribed organisations and encourage violence, are having on a section of our society. Despite the defeat of the caliphate and despite the fact that we have an extreme right-wing threat that is growing, those speakers are still capable of galvanising, mobilising and energising individuals.

If I look at the evidence for that, I would say the proscribed group that is al-Muhajiroun. We had five successful attacks last year, including one extreme right-wing attack. We also had 12 disruptions of international counter-terrorism: Islamist, jihadist plots. If you track back across the past four or five years and look at the pernicious influence of a group such as ALM, it is dramatic. They have a footprint in almost every crime. So to say that radicalisation is the biggest scourge of our time in terms of terrorism is probably an understatement. It is making a significant difference. For me as a police officer, anything that helps me mitigate that threat has got to be a good thing.

Q On the lack of time, which has been brought up, do you think that three clicks or three online viewings of terrorist content over, say, 25 years—just to pick a number out—shows enough intent to support terrorist activity to then prosecute someone? Do you think there is any danger whatever that in the end police time and resources could be spent on targeting innocent individuals who are of no interest, rather than focusing on individuals who obviously support and encourage terrorist activity? Do you have any concerns on that front?

Assistant Commissioner Basu: I do not actually have any concerns about that at all. We are very adept at looking at the full intelligence picture behind what somebody is doing.

Back to the comments I wanted to make around the section 58 and the streaming offence: that is the way people are living their lives now. It is not about operational security; it is just what they are doing. I am agnostic as to the number of times, but I appreciate prosecutors need some clear guidelines. That streaming is happening and it is happening en masse. At the moment, we are able to charge on one offence, because it was downloaded, but there might be a wealth of intelligence saying that a massive amount of streaming has been done. We then get a short-service sentence on the basis of one download, which does not say what the rounded threat of that individual is. That is very different from someone who has clicked three times on something over a huge length of time.

I would reiterate what Mr McGill said: these are not absolute offences. There are statutory defences and reasonable excuses built into this, all of which would be looked at very clearly before it went through the Crown Prosecution Service and before it went to trial. Then, an independent judge is overlooking that as well. So I am not concerned that it would be a diversion of police resource. I have examples that I can give to the Committee—or I can write to the Committee—that show that people are doing this as a precursor to much more violent offending in the future.

I do not want to be in the position I have been in many times in the last couple of years, looking at somebody who is committing what the courts might see as a minor crime and gets a very short sentence. That is not long-term public protection if they are out at three to six months. I am looking for them to go that next stage when I have got intelligence rather than evidence that they are preparing for that next stage. I want long-term sustained public protection, and that means that we need to be able to prosecute people who are streaming en masse.

Gregor McGill: Can I add two things to that? First, in such cases the police and Crown Prosecution Service work closely together. What often happens is the police will come to seek advice at an early stage and the Crown Prosecution Service will be able to give that advice in such a case. It is very difficult to say how a prosecutor would advise about a case in the abstract. What I could say is, three clicks over 25 years would be a harder case to prosecute than three clicks over a three or four-day period. One of the things a prosecutor has to do when reviewing a case is ask themselves whether they have sufficient evidence to prove a case.

Q Would it be better if there was a term limit, with clear direction for prosecutors in that respect?

Gregor McGill: The difficulty is, cases can turn so much on their own facts. I cannot say that you could not build a case with three clicks over 25 years; it would depend on what the nature of that was and what the reasons for that were. But ultimately whether there should be such a limitation is a matter for Parliament. Prosecutors would work within that limitation, if that was put in.

Assistant Commissioner Basu: I would be nervous about absolute time limits because of our close subjects of interest. Khalid Masood and Salman Abedi are two very good examples from last year. Khalid Masood would have been engaging in looking at some of this material many, many years ago. So where would you put the line?

As we are in an oral evidence session, I am taking people in the order in which they indicate, which I think is fair. Mr Chapman will have to wait.

Q Assistant Commissioner, can I bring you back to clause 1—expressions of support? How dangerous was Anjem Choudary over the years? Obviously he is convicted at the moment, but how dangerous is an individual of such inspiration to radicalisation and to people around the country?

Assistant Commissioner Basu: It is the comment I made earlier: it is the greatest threat to this country that people such as Anjem Choudary have been able to speak very persuasively and charismatically for long periods of time. The difficulty in prosecuting him, as Mr McGill will know, was immense over many, many years. If my MI5 colleagues were sitting here today, they would be able to give exact numbers on how many terrorist atrocities al-Muhajiroun—he is a leader of ALM—have a footprint in, not just here in the UK but abroad, and on the number of disruptions we have had where people have been influenced by ALM rhetoric or material.

Q The number of those cases is in the hundreds—is that not correct?

Assistant Commissioner Basu: Yes.

Q How long did it take us effectively to get a conviction against him? For how many years was he on our radar, and we were worried about him?

Assistant Commissioner Basu: Many years.

Dozens? I think it was 20 years.

Assistant Commissioner Basu: I would not be able to give you the exact number.

Gregor McGill: It was certainly a significant number of years, and I think it was into double figures. I think it was somewhere around 10 years, at least.

Q We knew he was dangerous, so why did it take us so long to achieve a conviction? Was one of the factors the gaps in that legislation—the difference between inviting support and inspiration for support?

Gregor McGill: Precisely so. He was a very charismatic and intelligent man who was very able to stay just the right side of the legislation as it was at the time. That provided a real difficulty for investigative colleagues to gather evidence and for prosecutors to bring a case.

Q Would it be right for me to say that you see this clause as trying to deal with the significance of inspirers, people who use their profile and presence to inspire people recklessly into joining a proscribed organisation or following those beliefs?

Assistant Commissioner Basu: Exactly.

Q One of the criticisms will be: “But what if four blokes are down the pub and they say, ‘You know that bloke Tommy Robinson, I think he’s a good geezer’.” Those blokes, as they would have been described to me, would not necessarily be prosecuted because the discretion of the prosecutor would say: “Well that is just freedom of thought, that’s people chatting around a bar, versus someone addressing loads of people at Speakers’ Corner”. Is that where you see the prosecutor’s discretion being able to stop that happening?

Gregor McGill: It is not the job of a prosecutor to stop people having odious thoughts and opinions. In a democracy, people are entitled to hold whatever opinions they want to. When the expressions of those opinions become criminal and go into what has been called “the radicalisation agenda”, that is where we think there is a lacuna in the law and where we think it needs addressing.

Q If I were to take the Hitler test, the inspiration test—Adolf Hitler stood up at a Nuremberg rally and did not say to his followers, “Join the fascists in Britain”, but said, “I think they’re fantastic”—at the moment, he probably could not be prosecuted for that offence, unless he said, “Go out and join them”. Would that be right?

Assistant Commissioner Basu: Yes

Gregor McGill: Yes.

Q So the power of inspiration is our biggest danger to radicalisation and this clause seeks to deal with that, would that be fair?

Assistant Commissioner Basu: Yes

Gregor McGill: Yes.

Q The last Labour Government rightly brought in the Racial and Religious Hatred Act 2006, which effectively deals with incitement both in public and private places. It was not called thought police at the time. It dealt with people using hate against religions as a cause, as opposed to proscribed terrorist groups. Is that why we cannot use that Act to prosecute? If people stand up and say: “I hate the Jews”, you could prosecute them now for inspiring or inciting hatred, but you could not prosecute them if they stood up and said: “I think ISIL”—or National Action—“is fantastic”?

Assistant Commissioner Basu: Yes.

So the principle is already embedded in law around inspiration when it comes to racial hatred, but not when it comes to terrorism?

Assistant Commissioner Basu: Yes, precisely so.

Q Have we had any problems with the use of the Religious Hatred Act over the last 12 years?

Gregor McGill: Prosecution is fraught with problems, but none have come out. It is a perfectly workable piece of legislation and another tool in the prosecutor’s armour to be able to deal with this type of behaviour.

Q Could I move on to the publication of images, the clause 2 issue? Assistant commissioner, do we see quite a few cases where people use their Facebook page or upload images of themselves standing behind flags or speaking to a group of people, for example, in the back of a house, with a black flag or a Hezbollah flag or a National Action flag or whatever else behind them. The image is up there, but because it is in a photograph, it is difficult to prosecute. Is that a challenge?

Assistant Commissioner Basu: Yes, it is a challenge and it is quite common.

Q Is it common for some of the foreign fighters in Syria beaming themselves backwards, effectively, saying to people, “Look at me, aren’t I great?”

Assistant Commissioner Basu: Yes.

Q Would you say this clause is more of a modernisation reflecting how the internet is used, rather than anything new or magical? Is it just that people are using the internet differently and we need to adapt to that?

Assistant Commissioner Basu: That is exactly what it is. If you marched down the street with that flag, you would be in a different place.

Q Yes, and if you dressed up in some of the bizarre uniforms.

On clause 3, I am keen to be open to solutions on the three clicks issue. Would you both agree that streaming, again reflecting modernisation, is a major problem and that the law as it sits is not capable of defining the difference between streaming and downloading?

Assistant Commissioner Basu: Yes.

Q Maybe, for those who are worried about three clicks, a definition of streaming that does not use clicks but a more technical term might be a solution, as long as we deal with streaming as a problem; that is the main challenge.

Assistant Commissioner Basu: Yes.

Q May I fast forward and ask a question about the hostile state powers on the border? How important is “no suspicion” in the use of these powers? Why would we need to maintain it?

Gregor McGill: From a prosecutor’s point of view, although these probably would not be exercised, they would be more investigative powers, if you are using an evidence base or intelligence base, you would have to make that intelligence or evidence available.

There are some complications and difficulties with that. There are some legal difficulties with making some intelligence available. There are some operational difficulties in making such material available, which may impact investigative colleagues’ ability to run some of their operations. On that basis, if we had to disclose that, it may limit the powers significantly.

Q If I had intelligence, let’s say, that a hostile agent—maybe an assassination team or people using non-official cover—were going to come to the UK and take the nine o’clock flight from Amsterdam, but we did not know who they were, only that they were taking a flight. If we had to have suspicion, would that prevent us being able effectively just to target the flight, because we would have to have suspicion about an individual? Or is just suspicion that they might be on a particular flight enough to be grounds for suspicion? Or is it too general?

Assistant Commissioner Basu: Yes, I think it would be too general; that is the problem. It would need to be a reasonable suspicion test. If you look at section 1 stop-and-search powers, it would have to be much more directive than that. Certainly, in counter-terrorism and the example you have given, that would not be uncommon. Intelligence is very fragmented; it is very incomplete. We might have very limited material, possibly just on the travel method or a particular flight, and nothing more than that.

To echo Mr McGill’s point about having a suspicion threshold undermining the utility of this particular investigative power, certainly very sensitive sources and methodology could be disclosed. Certainly, the people who were targeted could quickly work out how to bypass our methods. Certainly, it would be open to those people to displace their travel by passing on evidence to a travel companion, who would not be under suspicion. The lack of suspicion in terms of the power is critical to the utility of actually using it.

Q Would that breadth of suspicion being challenged as not narrow enough, also apply to a method? Let’s say that we had intelligence that a hostile state agent was moving a radioactive substance in a flask but we did not know which flight, so we decided to target all people carrying flasks. That would be too broad because that would potentially cover every flight coming into the country. So, we would not be able to do that if we had a suspicion test.

Assistant Commissioner Basu: Yes.

Q Earlier you mentioned the prospect of extraterritorial powers and that Australia has them and we do not. As you know, a lot of MPs brought that up on Second Reading. Could you say a little more about how helpful they would be and how they might be used in practice? Would you just like to cut and paste the rules that Australia has or would you like to do something slightly different, if you could start with a blank piece of paper?

Assistant Commissioner Basu: Do you mean the designated area offence that we discussed earlier?


Assistant Commissioner Basu: I think the Australian approach is the more sensible one from our point of view. If you start introducing any kind of rules and notification procedure, there is bureaucracy and difficulty that would go with that. We know how people react. If you put in any kind of way of stopping somebody travelling, if they succeed and travel that would be a huge propaganda coup. That is not something that we would like to see. There is obviously a huge reputational risk in that happening and then them going on to commit atrocities, because somehow they had passed a notification requirement and travelled under the guise of something else, which has happened in the past. They have arrived and then fought and committed an atrocity. It would look like we had effectively licensed them to do that. We would rather have very clear legislation in the first place that prohibits the travel, and that people were then responsible for doing whatever it is they do and they took that risk, and we were able to prosecute in the future.

Q Do you have a sense of how many people have been inspired to travel and how many people, if you were implementing an Australian-type system, you might have had the opportunity to prosecute already?

Assistant Commissioner Basu: I do not have those figures off the top of my head, but I could get those for you and it is substantial. One figure I do have is that we prevented 100 minors from travelling to a theatre of war. The other fact I have is that despite the collapse of the caliphate, we still see people inspired to travel.

Q Is there anything you would add, Mr McGill?

Gregor McGill: I adopt everything my colleague has said. I would say, in respect of the Australian experience, is that although it is on the statute book, it is not often used. It is something that, like most offences, has to be—in accordance with the law—it has to be necessary in democratic society but it also has to be proportionate. It is an offence that would be a useful addition to a prosecutor’s armoury, but we would have to be careful how we exercised it because there are ECHR implications, and prosecutors would be alert to that. The Australians are looking at their first case at the moment for dealing with such an individual.

Q This question is to Mr McGill. We have heard a number of questions on the three viewings. With the viewing itself, does that mean whole or part? What proportion would have been viewed to be counted as one, two, three?

Gregor McGill: That would depend on the particular circumstances of the case and the particular evidence put before the prosecutor. If you went straight to a very criminal—if I can use that word—part of the streaming, that could constitute one. Just a very brief look could constitute one click.

Q I just wanted to ask about support for proscribed organisations versus the lone wolf situation. To what extent do you think the Bill defines the expression of an opinion or belief in terms of a terrorist offence, without the actual action that goes with it to prepare for an act of terror? I am thinking of a case that was quite celebrated about a decade ago: the lyrical terrorist. Do you remember this? It was a 24-year-old shop worker from the Heathrow Airport branch of WHSmith, who was writing dodgy things on the back of till receipts about beheading people. She initially was sentenced, but it was quashed afterwards. Would that case be different under all this? It is just the risk that, potentially, satirical activity could be criminalised. She claimed she was writing poetry. I think she also had some dodgy stuff in the house that could have aided terrorists. In the end, it was seen as too weak and was all overturned. Would that be different under this legislation?

Gregor McGill: That is a very difficult question to answer without seeing the precise evidence. The section 12 support offence is there to deal—sorry to come back to it—with the threat of radicalisation, and the charismatic speakers who stop just short of inviting people to become involved in terrorism but make it clear that they support that activity. That is what this clause is there to deal with.

Q Anything different, assistant commissioner? Do you remember that case? It was on telly a lot, and I think it was partly out of public outcry that it was overturned.

Assistant Commissioner Basu: I do not remember that case, but in the circumstances as you describe them, it would be easy to see why that was a weak case. Mr McGill has said it already, but prosecutors look in the round at whether it passes an evidential threshold and whether it passes a public interest test, long before we get to the point where they advise us that we can charge somebody. So there is a significant period of time in which we would look at the full circumstances of the case. Just on what you have said there, I am not sure that is one that we would have been putting forward under today’s—

Q Some CPS prosecutor did.

Assistant Commissioner Basu: Yes, a decade ago. I just echo what Mr McGill said. There is a difference between a shop worker who clearly has some issues, doing what they were doing, and what we are talking about Anjem Choudary doing.

Q This is perhaps a follow-up to Mr Newlands’s earlier question about viewing material over the internet. There is no doubt that a lot of people out there wish to do us harm, but can you foresee any situations in which people who may be fairly innocent—with mental health problems, for example—could be caught up in the Bill inadvertently? We have, for example, seen some cases involving people with autism who have been pulled into the counter-terrorism area—probably through their mental health issues—almost by error. Can you see any safeguards in the Bill, or in the justice system, that would protect people in those circumstances, so that they would not be unnecessarily criminalised, with all the anguish that goes with that?

Gregor McGill: There is a statutory defence, so that would give some safeguards. As I suggested earlier, prosecutors have to apply the code for Crown prosecutors, which means that they have to ask themselves whether there is sufficient evidence to provide a realistic prospect of a conviction and, if they are satisfied that that test is met, whether it would be in the public interest to prosecute.

In certain circumstances, if a person was suffering from a mental health issue, that could be a reason for not prosecuting. In certain circumstances it could be a reason for prosecuting. A prosecutor has to look at the particular aspects of each case and make a decision based on what the evidence shows, but I think that there are sufficient safeguards in the legislation and the core process.

Of course, all court proceedings are overseen by independent judges. They are very independent and have an overriding duty to ensure that any court proceedings are fair. That is their overriding duty, and they are very active in ensuring, through the management of criminal cases, that criminal proceedings are fair at all stages. I would say that there are sufficient safeguards within the legislation, and in the wider way in which cases are investigated, prosecuted and tried, to ensure that the rights of everyone in the proceedings are protected.

Assistant Commissioner Basu: The spectrum for mental illness is huge. If people do not have the mens rea, they would not be charged. There would be alternative ways of dealing with that individual. If they do have the mens rea, it depends where they are; we have charged people who have got mental illness issues. Having low levels of mental illness does not mean that someone cannot consciously commit an atrocious act. The investigative process as it stands today, and always has, is that you have to be fit to be detained, fit to be interviewed, and fit to be charged. There is a lot of medical advice before it gets to a charging decision and a prosecutorial process in front of an independent judge. Again, there would be court measures around someone’s fitness to plead or stand trial. I think that there are sufficient safeguards.

Just to be clear about who is drawing vulnerable people in, it is not legislation or the investigative process or the Crown Prosecution Service; it is radicalisers, who rely on the fact that some people are vulnerable and need safeguarding. We have measures within the police to try to prevent those radicalisers getting to those people. That is called Prevent, and we do not talk about that great work enough. It is about trying to stop someone being criminalised in the first place. I and my statutory partners have a lot of people working on doing precisely that—stopping people getting drawn into this and becoming subject to any of the legislation in the first place.

Q A very quick question: in clause 3(2), on obtaining or viewing over the internet, it is clear that,

“on three or more different occasions the person views by means of the internet a document or record containing information of that kind.”

That is quite clear—three clicks and you’re out—but how do you define views? What is the definition of views? Is it a five-second YouTube advert or the like? Is it 10 minutes? Is it an hour? What is the definition of views when it comes to that?

Gregor McGill: I do not think it is defined in the legislation, is it?

Q What if somebody clicks on it by accident, views it for three seconds, says, “Oh,” and then moves away from it?

Gregor McGill: That is the point I would make. The analogy I always draw is with things such as indecent images of children. When we are prosecuting cases like that, if someone clicks on a website with indecent images of children once, they might think, “I didn’t want that. I’ll click off.” I would say that no prosecutor would say that the code for Crown prosecutors was met in those circumstances. If you had one click and you were on there for a considerable period of time, that might be different. If you had one very short click, but then you went back and looked again, and then you went back and looked again, that is beginning to show a pattern of behaviour.

Q It goes back to Mr Newlands’s question about the period of time. Is it over a 25-year period? Is it a 10-year, five-year or one-year period? If it is a matter of seconds over a 25-year period, that is not really a pattern of behaviour.

Gregor McGill: No, and those are the factors that a prosecutor would take into consideration in asking themselves whether the evidential test was met and, even if it was in those circumstances, whether it would be in the public interest to prosecute.

Q I would like to move us on to corporations and local authorities. I was a councillor in Tower Hamlets at the time when we had three of our schoolgirls go to Syria, and it became clear that it was not just a counter-terrorism issue but a safeguarding, welfare and child-grooming issue. I wonder in what ways this legislation proves that you are working with local authorities. Do you think there are still any gaps in that working? I would also be interested if you could talk a little about how the Prevent agenda tries to build children’s and other people’s resilience against radicalisation, as one of the best ways of trying to stem the whole phenomenon of Islamic and far-right radicalisation.

Assistant Commissioner Basu: I am on public record as saying that I think Prevent is the most important pillar in the Government’s strategy. What we are facing is a generational challenge. If I think about minors who are being influenced in all the kinds of ways that we have discussed here today, I talk about returning families, mothers and children who have been exposed to atrocities in war zones, who I have to treat as a potential threat as well as a potential safeguarding issue. I have talked about the fact that we see people still actively inspired and encouraged to travel to a war zone where the caliphate does not exist. There are still people being influenced by that.

I think of a case that I investigated less than 18 months ago, which has come to trial, of four young people who were trying to travel to Syria to fight. That links to the section 58 offence, because two of them downloaded material and therefore were chargeable with a section 58 offence. For two of them, there was no evidence under the current legislation to be allowed to interdict them at that time. They were not susceptible to Prevent, which is a voluntary scheme to help people who want to help themselves. That is the difficulty.

Where the Government have brought in desist and deradicalisation programmes that are mandatory for convicted offenders, at least that gives us a further opportunity to try to safeguard. That is another important aspect or evolution of where Prevent has been. But as I have just said, the number of people in policing and in our statutory partners, post the 2015 legislation, that made statutory partners aware of their responsibilities and gave them a legal duty to effectively deal with anyone they suspected was being drawn into terrorism, has made a significant difference. That is not least because the education sector, where you will be well aware that we had huge problems convincing people that safeguarding and not prosecution was our aim, is now the biggest referrer into Prevent—very recently, I think, it was 1% more than policing itself.

There has been a sea change. What we tried to talk to people about is that you do not need to teach teachers about safeguarding. It is absolutely engrained in their character as something that needs to happen. This was no different from a child being abused or neglected; it was exactly the same principle. We believe that is working effectively and will continue to work in the future. Probably the most important thing is that people are resourced and equipped to handle what is going to be an increasing case load, particularly if we see more people returning from theatres of war.

What we described here is a radicalisation process that is still ongoing. My colleagues in the Home Office will see social media and sentiment showing that there is still a growth of extremism in this country. You made the point about making people resilient and able to counter that narrative or to combat an ideology—a good academic we use talks about it being like fast-food ideology. Kids are being exposed to one or two lines of rhetoric from the Koran that mean nothing in isolation. The issue is in trying to teach people what that actually means, or trying to teach a young white lad in north-east England who has been told that white supremacy is the way and who understands nothing about the history of what that actually means. It is important to try to increase their resilience, and we do a lot of that type of work as well.

I do not think we talk enough about that kind of work. We do not hear from enough people doing that kind of work and some of the dramatic effects that they have had in changing people’s ideology, which has meant that those people do not become criminals—they become useful members of society, and are advocates for a better way of life.

I go back to the Peel principles: my job is to prevent crime, not just to detect it. Save life and prevent crime—those are my two primary duties, and the Prevent strategy is precisely about that. Stop criminalising people and be effective, but I cannot do that myself. Those with the skills to do that are in education, health and social services. One of our greatest challenges is probably to properly equip them to do the work that we signpost to them.

Q Do you think this legislation goes some way towards dealing with that issue, or do you think that local authorities are neither financially equipped nor have the expertise to be able to do what you need them to do?

Assistant Commissioner Basu: I do not think the legislation is the issue. I think the equipping, expertise and resourcing are different problems, probably for the next spending review. Unless you can point to a place in the legislation where you think that more law is required, I am not sure that it is about more laws. It is about dealing with the issue; it is more about capacity.

Q Do you have anything to add, Mr McGill?

Gregor McGill: As a prosecutor, I would say we are involved in Prevent but not to the same degree. We sit firmly within the pursuit base, if I can put it that way. The aim of any prosecutor is to keep people out of the criminal justice system as much as possible; if people enter the criminal justice system, we have all failed to a certain extent. Going back to what was said at the beginning, the threat is from radicalisation. Anything we can do to prevent that radicalisation is to be supported. I think this legislation will give us the tools to help us do that. Is there more we can do? Yes. But I agree with Mr Basu: is it this legislation? No, it is much wider than that but this legislation will help, in my view.

Q I want to go back to clause 2, which deals with the personal publication of images. Is this Bill not a potential vehicle for a wider power, which might be welcomed by police authorities, to compel any individual or media platform to remove images that incite or glorify any form of violence?

Assistant Commissioner Basu: It has the potential to do that, yes. I think most social media providers have stepped up to their corporate social responsibility, particularly post-2017. They get it—they get that there is a serious issue with social media. I have described it publicly as the internet probably being humankind’s most important invention but also a great scourge of our time. It is not policeable as it currently exists; I certainly could not do it. The only way it can be done is if these companies take responsibility for what they are hosting on their platforms. We are seeing a real movement towards that, and the Government have helped dramatically in terms of being a convening power: getting the big chiefs round the table.

It has taken eight years for my counter-terrorism and internet referral unit to encourage social media providers to take down 300,000 pieces of extreme terrorist material: stuff that we think hits the threshold. During the first quarter of 2018, two of the major CSPs managed to take down just short of 4 million. When the impetus, drive and understanding are there and they know what they are looking for and what crosses the criminal threshold and undermines all their own policies, they can do this. That is incredibly important. That is over and above anything in this legislation.

Q Most of us are grateful to have seen the new Government focus on this and, in particular, the social media companies finally coming to the table. But that has been under threat of regulation—so, again, is there not the space within the Bill to take that forward? I think you are suggesting both that it is beginning to happen but that the Bill offers the opportunity to go a bit further and give the power that could be used if media companies do not continue to work closely with Government. Is that fair?

Gregor McGill: In legal terms, freedom of expression is not an absolute right, but a qualified one. It is important to remember that. It can be interfered with, if I can put it that way, if that is in accordance with the law—and this legislation would provide that; if that is necessary in a democratic society; and if it is proportionate. Like so much in the criminal justice system, we try to strike that right balance, between the rights of individuals to have that freedom of expression and the rights of other citizens to live in peace, security and safety.

Q In clause 3, what does this Bill do that the French legislators failed to do? Linked to that is the point made by the hon. Members for West Aberdeenshire and Kincardine and for Dunfermline and West Fife—namely, that we know vulnerable people are being deliberately targeted, or groomed, by those who want to incite them to undertake violent acts. You seem to be suggesting that a click of a fraction of a second would count towards a realistic prospect of conviction, but then seem to draw back and suggest, for example, that for someone with a learning disability, the public interest clauses would prevent a prosecution. Bearing in mind what the other witnesses would like to see and the case they might be making, are you suggesting that that is where the reasonable application would land and that that would be the trigger for a Prevent-type intervention, rather than a prosecution?

Gregor McGill: On the three clicks, how a prosecutor would have to approach it is to look at the case in the round and see what the nature of the clicks was—look at the issue in totality. How long someone looked and how close together—you have to build up an evidential picture and ask yourself, as a prosecutor, whether that provides you with a realistic prospect of a conviction.

In some cases, it may start off with a very short click, but the next click may be longer and the click after that may be longer. That enables a prosecutor to build up a story and a narrative and ask those questions. A prosecutor has to look at that and ask whether that evidence provides them with a realistic prospect of conviction. But they have to ask themselves a wider question: would the public interest require a prosecution in this case? That would depend very much on the circumstances of the case.

In respect of the French legislation, I am afraid I do not know much about that; I struggle enough with English law without trying to understand French law. However, I could find out about that and write to the Committee, if that would help.

Assistant Commissioner Basu: Every senior investigating officer has a responsibility to consider a Prevent line of inquiry while they are looking at the investigative lines of inquiry for their case. There are two very good examples of that. I mentioned the one about the four youngsters who wanted to travel. In that case, Prevent initiatives were put around certain of those vulnerable youngsters, because we did not want to criminalise them.

A very famous case that has just been convicted is that of Safaa Boular. Safaa Boular was a 16 year-old girl when she was groomed online by a 33 year-old from Syria. She was considered to be a very vulnerable youngster in need of some kind of Prevent intervention. That Prevent intervention failed: bear in mind that it is a voluntary programme; if you do not want to engage with it, that is a significant issue. We have people who go on to plan or even commit terrorist atrocities who have been subject to Prevent intervention. In terms of the efficacy, it is a very difficult thing to do, but we aim towards it.

I was taken by what Mr McGill said; it is a failure when we criminalise people and have to prosecute them. As I said, the primary duty of my job is to save lives and prevent crime—not detect it. I am a very experienced murder investigator, but I never wanted to be a murder investigator as a counter-terrorism officer.

Q To follow up on the point about the quick click, if you want to call it that, you are suggesting that because there is no time limit in the Bill, it could count towards a prosecution. We have to be mindful of that, and it might be worth considering some kind of time limit.

If someone is grooming, for want of a better word, someone vulnerable, and they send them an email link without any explanation, would the person being targeted be able to prove—as the onus is on them to do—that their excuse was reasonable, that the link was sent by someone they trusted and that it was a case of misplaced trust? How would that pan out in practice?

Gregor McGill: It is quite difficult, and it requires close liaison between prosecutors and investigators to work out exactly what the evidence is in the case. It is true that if someone is groomed and specifically targeted, that can be a powerful reason for not prosecuting, because we have to understand that people are targeted because they are vulnerable.

There comes a stage sometimes, however, when we have to focus on what people have done, rather than why they have done it—if I can put it that way. It is that balance, which goes back to what I said before and what Mr Basu just said. Wherever we can, we try to keep people out of the criminal justice system. Investigators and prosecutors will do everything they can, but in certain circumstances the code means that if the evidence is there, and it is a serious matter, the public expect a prosecution.

Q On clause 19 and terrorism insurance, despite the Prime Minister talking about the attack on London bridge and Borough market as a terror attack on the night it occurred, it took a considerable amount of time for it to be formally classified as a terror attack. The Ministers have suggested that one of the reasons for that was that three police authorities were involved—City of London, the Met and the British Transport Police. Is the Bill also a vehicle for trying to speed up the process by which acts of terror can be classified, so that those affected, particularly businesses and employers, have better protection when claiming from their insurers?

Assistant Commissioner Basu: That is a matter for the Government and the way the Bill is drafted, but it would be a laudable aim.

Q You may have a different view of this question, depending on which end of the telescope you are looking through. Is there anything that you would have liked to have seen in the Bill to help you with your respective jobs and tasks that is not there?

Gregor McGill: From a Crown Prosecution Service perspective, the Bill is a proportionate response to the threat we face.

Assistant Commissioner Basu: We have discussed the designated area offence and, briefly, the Protect duty. I caveat that by saying I understand how difficult a Protect duty would be. Some 80% of British businesses are small and medium-sized enterprises and I know it would be difficult. I do not want to impose a financial cost on people; I just want them to understand the seriousness with which we need their help. I am not sure that legislation is the right vehicle for that, but it is something we have debated.

The last point I have not mentioned is that we have a continual issue with people marching and waving flags—the whole display issue—and we do not have a power of seizure of flags, which is part of the evidential chain for a successful prosecution. That is a minor point. Otherwise, it is a well-balanced set of proposals.

Q If I can draw attention to schedule 2, the retention of biometric data. Mr McGill, we—or certainly I—have heard that removing the oversight accorded by the Biometrics Commissioner could be seen as a retrograde step. Any data vulnerability is an issue, but it is particularly important when it comes to biometrics. In America there was a hack of 5.5 million unencrypted fingerprints, which would obviously be an issue if it were to happen over here. With all that in mind, could you provide any examples that would support the notion that the detection of crime is improved by retaining the biometric data of people who are not charged, whose charges are dropped or who are, indeed, found innocent?

Gregor McGill: That is quite a wide question. I do not have specific examples of that, although we could look for them. What we do know is that successful investigations and prosecutions use a number of investigative tools and evidence from different places. The more powers that investigators and prosecutors have to exercise those safeguards, the stronger the prosecutions and better the results. An example of where we have used biometric data for that? Off the top of my head, I do not know in these circumstances.

Assistant Commissioner Basu: The most famous example in recent years was Sardar, a cab driver from Wembley, in 2014. The US shared his biometrics with us. He had been overseas and become a terrorist. The reason we were able to match was that in 2007 he was subject to a schedule 7 stop and his biometrics were taken. So he was not convicted of anything. His biometrics were taken and retained for seven years. He was clearly suspected of travelling for a purpose, but not enough to cross the threshold. He travelled and was later convicted of murder.

Q It would be useful if you provided the Committee with more examples. The Bill is asking for an extension from two plus one to five years; that would be more than double in some cases. To justify that, it would be useful for the Committee to have that information.

Gregor McGill: We can certainly look for those examples and write to the Committee.

Q I have a narrow question. Clause 12 concerns the power to enter and search houses. I am trying to get a practical sense of that. There are, of course, various requirements. On at least two occasions there has to have been attempts at entry before. The purpose is this:

“to enter premises specified in the warrant for the purpose of assessing the risks posed by the person to whom the warrant relates;”

Could you expand on that? Mr Basu, what exactly do you think is meant by “assessing the risks”? What practically would be likely in a situation like that?

Assistant Commissioner Basu: This is based around lifetime offender management of terrorism. The parallel is obviously registered sex offenders, where this power exists. You are looking for anything that looks as though they have re-engaged or are breaching their notification requirements, if they are on notification. It is something that allows us to assess the ongoing risk of their re-engaging with terrorism. You might find material if you were to do such a warrant. You might find a flag being displayed. You might find material that is of use to a terrorist. That is the purpose of it.

Q I think we are coming towards the end. Can I just thank you very much for your evidence? Could I ask you to set the scene, assistant commissioner, of where we are with today’s threat and to put in context why these powers are needed?

Assistant Commissioner Basu: Certainly. You can listen to me or you can listen to Andrew Parker from MI5, who has spent 35 years in terrorism and says he has never seen anything like it. If I wanted to describe the threat, that is where I would start. It is definitely a shift, not a spike. We saw the start of problems that were predictable when the military push went into Mosul and Raqqa at the beginning of 2017.

Before Khalid Masood hit Westminster Bridge on 22 March, the number of leads from international partners, covert means and here in the UK were starting to increase in January. What we reached, post Khalid Masood’s attack, was probably a lowering of the bar for terrorism in this country, where people thought that perhaps we were not as hostile to terrorism as we could be and, therefore, they were capable of committing attacks. The attacks that followed were not connected in any way, shape or form, but they say something about the inspiration and the radicalisation that we have discussed.

That has left us with a trebling of our leads; on a monthly basis we deal with three times the number of investigative leads that might later work themselves through into a priority investigation against terrorism. There is more attack planning here in the UK, which is why section 58 of the Terrorism Act 2000 is so important. Holding information is often a precursor for people seeking to do a much more serious offence down the line. We are seeing something in the region of about a 30% increase in case load.

We talk about somewhere between about 500 and 600 cases. Taking the cases that are not police and MI5-led and including the ones that are led by police alone, it is more like 650. We have talked openly about the fact that 3,000 subjects are of acute interest to us, which means 3,000 open cases of individuals who are considered a national security threat. We talk about the growing pool of those we have looked at and are no longer considered a national security threat, but who may re-engage in the future, as being 20,000.

We also have a number of issues, as we have discussed, of people who have been exposed to this in countries overseas. Now that the caliphate has collapsed, what will happen to those people? Will they return to their countries of origin? We still have a substantial number of people who could return against whom we do not have prosecutable case.

Within our communities, we continue to see a rise in extremism. Most disturbingly, along with the jihadist Islamist threat that we see in international counter-terrorism, we now see the extreme right wing growing as well. Those probably feed off of each other, which is why this becomes a whole-society problem, because we are seeing both sides of the coin. The previous Home Secretary proscribed National Action. We have done a great deal of work against National Action.

The most disturbing thing about the extreme right-wing threat, in terms of how it transfigured as National Action, is that it shows very similar signs to what was discussed about al-Muhajiroun—ALM—many years ago. It probably took years to get on top of ALM, and we did not want to make that same mistake with the extreme right-wing threat. Counting that together with the scale of the pace, our ability to counter that level of threat will be severely challenged over the next couple of years. This legislation provides me with some help on that.

If there are no further questions from Members, I thank the assistant commissioner and Mr McGill for giving evidence this morning and for their time. It has been most helpful to the Committee. Thank you very much. We will now move on to our next panel.

Examination of Witness

Richard Atkinson gave evidence.

Q We will now hear oral evidence from Richard Atkinson, chair of the criminal law committee of the Law Society. We have until 11.25 am. I welcome you, Mr Atkinson. Thank you for being with us this morning. Will you please introduce yourself for the record?

Richard Atkinson: Good morning. I am Richard Atkinson and I am co-chair of the Law Society’s criminal law committee. I am a defence practitioner specialising in criminal law.

Q Thank you for coming to give evidence to us, Mr Atkinson. I want to turn to the border security part of the Bill and issues of detention and access to a lawyer. There is no right to consult a solicitor in private in the Bill. The way the Bill works is that there is a one-hour period without the right to consult. Beyond that, there is a further six-hour period. The Bill is pretty clear about the power attached to it:

“a detainee who wishes to exercise the right”

may in some circumstances do so

“only in the sight and hearing of a qualified officer.”

Is it a concern that there is no right under the Bill to consult a lawyer in private?

Richard Atkinson: Yes, a very great concern. It fundamentally undermines what I would consider to be a cornerstone of our justice system—legal professional privilege. As you may know, legal professional privilege is a right that belongs to the client, not to the lawyer, and it is a right to consult with their lawyer and have the contents of those discussions, where they are a matter of advice, privileged and not to be disclosed to anyone. Clearly, if someone is listening to that conversation who is not advising them, that conversation is no longer privileged. Therefore, that risks undermining the whole concept we have of privilege.

I understand that the motivation for this is the concern that there may be advisers—lawyers—who may be susceptible to being used, if I can put it that way, by manipulative suspects to achieve the goals being sought to be prohibited—communication with remaining suspects, interfering with evidence or furthering criminal activity. However, that is not unknown to our current justice provisions. Powers are already in place to deal with such situations that do not require the breach of legal professional privilege.

For example, in the Police and Criminal Evidence Act 1984 code H, which deals with counterterrorism cases, where there is concern about an individual lawyer there is provision for the suspect to have the consultation with that lawyer delayed but to be offered the services of another lawyer in the meantime. The suspect is therefore not devoid of legal advice. That advice is in private and maintains privilege but meets the concerns, if there are specific concerns, in relation to that particular legal adviser. So we have in place a situation where we can address the concern but maintain the fundamental principle of legal professional privilege. The Bill goes much further than that and is a step that I feel is very detrimental to our system, and of course to our reputation.

Q From what you are saying, there is a practical solution for any legitimate concerns there may be. There is also a situation—in a police station, for example—where you can have a duty solicitor or lawyer made available. That person could be someone of particular standing and reputation in whom we could all have faith and whom we would not have those concerns about.

Richard Atkinson: Absolutely. Again, code H allows exactly for that. If there are specific concerns about a lawyer, the duty lawyer or solicitor can be called to come and advise. That maintains privilege and maintains the defendant’s access to advice at that point.

Q In your earlier replies, you talked about how an individual who was detained could have a conversation without legal advice or compromising themselves. It is right, is it not, that in this environment such a conversation would not be admissible in court, under the grounds of the stop?

Richard Atkinson: Not necessarily, because although there is a provision to limit its use, it is not absolute, is it? There are three exceptions where it can be used.

Q What are those exceptions?

Richard Atkinson: If I am right, the three are proceedings for an offence under schedule 7(18) of the Terrorism Act 2000; on a prosecution for perjury; and on a prosecution for another offence where, in giving evidence, the defendant makes a statement inconsistent with the answer or information provided by him or her in response to the schedule 7 examination.

Q Let us take perjury. Whenever any of us goes to the airport, a passport control person will ask us, potentially, where we are going or where we have been. They will question us, won’t they? They have the power to do that.

Richard Atkinson: They will.

Q Do we have a right at that stage—because this is all about being at the border—to ask for a lawyer then?

Richard Atkinson: No. I think, though, there are three almost categories of questioning recognised in the legislation. You have screening, examination and detention. What you are talking about is much more akin to screening, and no one is suggesting that those sorts of questions require someone to be offered legal advice. Having gone past the screening exercise and moving into the position of examination, where someone can be held for up to an hour, they are now someone of interest. Their status has moved on from simply that person who walks through passport control.

Q What about customs, because we are really talking about a customs screening in the example of a passport? If I am coming in from a country with my baggage, a customs officer stops me and asks me where I have come from—there is the screening—and they wish to search my bag or my person, they will take me away. They can take me to a side room. They can hold me while they examine my bag, screen it, and take it through an X-ray machine. Do you have a right to a lawyer in that environment at the border?

Richard Atkinson: No.

Q But that is a detention. You can be held, I think, for quite some time. We have all seen the television programmes; it happens all the time. How long has that power been held at the border by customs officers?

Richard Atkinson: I am afraid I do not know the answer to that.

Q Because you started your critique of this part of the law by referring to the long established view, the cornerstone of British advice. If I may give you a clue, it has been centuries that customs has had that power at our border in order to protect our border.

Richard Atkinson: Sorry, I think you are conflating things that I have said. The cornerstone is legal professional privilege. That is not access to a lawyer; it is the confidential nature of discussions between a lawyer and their client. That is the cornerstone that has been in existence for hundreds of years and that is held out internationally as a gold standard that we have in this country. That is what is being undermined by this Bill saying that a police officer can stand and listen to the consultation that is going on between the client and the lawyer. That is not the same as access to a lawyer, which is none the less important but is not of the same nature as I was describing in relation to legal professional privilege.

Q That is the particular bit that you would have the most beef with—the discussion between, effectively, a client and a lawyer when they are allowed access to a lawyer at that stage.

Richard Atkinson: That is the most alarming part, yes. Access to a lawyer is important, but you were seeking to conflate the two. I am happy to discuss either, but not the two together.

Q Let us go to the access to a lawyer point, because I think there is an amendment down about that. On access to a lawyer, would you venture, therefore, it should happen from the first—not from the screening? Not from the initial detention, in the way customs is done? Or would you say that they should really have access as soon as they have gone beyond the screening?

Richard Atkinson: Yes, I think they should, and under the code of practice that currently applies to schedule 7 to the 2000 Act, if a suspect requests legal advice, that is entitled to be considered and they may be given it, so this is not something new to terrorism legislation. It is already there in the code of practice that suspects are entitled to ask for legal advice at that point.

Q I am just trying to get consistency. Does that mean you think that when a Border Force person, a customs person, seeks to detain you for an hour or however long to examine and question you further, they, too, should have access to a lawyer?

Richard Atkinson: If they are questioning you, yes.

Q But they do that every day in their thousands across the country, because that is how we control our borders.

Richard Atkinson: If it has gone beyond screening, then yes.

Q That is a significant shift in what you would desire on the borders of our country. There would be thousands of lawyers. Let’s say someone goes beyond “Are you Ben Wallace? Did you come from Jamaica on this aeroplane? What’s in your bag?” They start taking my bag away, screening it, X-raying it, and asking me questions about what hotel I stayed in. Are you saying they should have a lawyer there?

Richard Atkinson: I would separate out some of those actions. If they are X-raying your bag, if they are looking for physical evidence to support a suspicion, then no, you do not have a lawyer at that point. If they have formed a suspicion and are now looking to ask you questions, then yes. However, more particularly under this legislation, the concern is that you have no right to remain silent, you have to answer these questions. So, devoid of legal advice and required to answer the questions is a significant act on the part of the state.

Q I think it is right to say that access to a lawyer on the border has been qualified quite considerably over many years. Would you not say that? Whether it is a customs stop or not conducive to the public good or a whole load of establishing, it often goes beyond screening.

Richard Atkinson: That is not something I can comment on. It may be correct. I do not know.

Q As the Minister, I definitely take your point about access to legal advice and that privileged space. Do you understand why we are trying to use schedule 7 and schedule 3 on the hostile state? Do you understand why there is a need to try to establish people coming into our country? What alternatives would you proffer as a way to deal with people who sometimes do not want to answer the screening questions, obviously, but may have a lot of evidence on their telephones?

Richard Atkinson: I do understand what is being sought. What I am saying is that there is a need for legal safeguards for those individuals. I do not see how those prevent evidence of the type you are talking about from being obtained. With a telephone, you are talking about the material being taken away and examined. It is not a matter of questioning at that point, and I have not sought to say that that should not be the case.

If you want to move on to the wider issue around seizure of legally privileged material, that is a different issue and I would have comments on that.

Q So the Law Society does not oppose the concept of the schedule 7 or 3 type stop; it just wishes better access to legal advice.

Richard Atkinson: That is correct.

Q I would like to ask about the confidentiality between the solicitor and the client. It has been long-established that that is a privileged sort of advice. You also said you understand where the legislation is trying to go and why the Government are trying to pass it. Is an alternative available where both could be achieved without compromising and losing one?

Richard Atkinson: I do not think the two prevent one another. Obtaining legal advice, bearing in mind that the individual has to answer questions, is not going to stop the objectives of the legislation or investigation. As I have already indicated, if there are specific concerns about the individual adviser, they can be met in the way that the codes of practice attached to the Police and Criminal Evidence Act currently address the matter. So, no, I do not think there is any problem in maintaining legal professional privilege and achieving the objectives that are sought.

Q In addition to access to justice and legal professional privilege, or lack of provisions in the Bill, are there any other aspects of the Bill that concern you? Do you think any of the provisions, such as three clicks, could result in aspects of the Bill being successfully challenged in court under human rights laws?

Richard Atkinson: I will take a moment to gather my thoughts around that. As far as other matters go, specifically going back to—although we did not quite touch on it—legal professional privilege, there is the issue of seizure of material and its examination. Again, it concerns me that, where legally privileged material is seized, it can be both examined and seized, even though it is legally professionally privileged material. I understand that the concern is that there will be those who falsely make the claim that the material is privileged—either that they themselves are lawyers and are privileged, or that the documentation and material they are carrying is in some form privileged and therefore should not be viewed by investigators.

In order to maintain privilege, which I think is so important, there are safeguards that can be imposed, which would mean that privilege is maintained but that the objectives are met. It has to be borne in mind that legal professional privilege does not extend to agreements to carry out illegal acts. If someone comes to me and wants to plan some illegal activity, it is not a privileged conversation and material. If there is material that is claimed to be privileged at the time of the seizure—bearing in mind that when he gave evidence to the Joint Human Rights Committee, Max Hill said that he saw this being a handful of cases, so we are not talking of hundreds of cases here—it would be perfectly legitimate to seize that material, bag it immediately and then put it in front of an independent counsel—lawyer—who would then be able to assess whether or not that material is privileged. If it is privileged that is the end. If it is not privileged, that material goes to investigators to be dealt with. It can be dealt with in a very short time, because lawyers are very adept at making themselves available to deal with urgent situations. When we are talking about a small number of cases to protect the fundamental right of legal privilege, that would be, in my view, an adequate and proportionate safeguard for dealing with that situation.

To your wider question—whether there were any other concerns—I suppose I could say three clicks et al. We have some concerns that the three clicks provision could potentially be restrictive or undermining of those with legitimate cause, such as journalists or academics making research into areas where they may find themselves falling foul of the legislation. I understand the statutory defence of reasonable excuse, but that is none the less relatively vague. The timings—you spoke about this in the earlier session and about having no time limit on this—are also vague.

To leave the law in the hands of prosecutorial decision as to whether or not it meets the public interest is a step too far. I think there is a need for greater definition around what is being sought to be prohibited. I understand the rationale for it and the need to prevent radicalisation, but we also need to ensure that we do not inadvertently criminalise those who are undertaking legitimate tasks. Although I was unaware of the specific example that one of your colleagues raised, of the worker in WHSmith, that shows the risk of simply relying on prosecutorial discretion as to whether matters should be prosecuted. In that case, clearly, a discretion was exercised to prosecute, and from what you have said—I do not know the case, so I am relying on the information given here—that was later found to be wrong.

Order. You need to speak through the Chair.

Richard Atkinson: That was an example where prosecutorial discretion was not aptly relied upon. When drafting legislation, where there are obvious potential concerns, it would be beneficial if that was better spelled out.

Q I am surprised nobody in this room has heard of that case, because it was on the TV news at the time. It was at the Old Bailey and was overturned by the Court of Appeal.

My question is about to what extent you think that clause 3 could risk criminalising thought without action—people may not have to do anything. That is what that case hinged on.

Richard Atkinson: If I am honest, I am not sure I have a view on that at the moment. I think that is the most honest answer I can give.

Q The provisions under clause 17 and schedule 2 will bring terrorism offences under the Police and Criminal Evidence Act 1984 in line with those under the Terrorism Act 2000, in relation to biometric data. To what extent do you think it is necessary and proportionate to retain biometric data for individuals who are arrested for terrorist offences but not charged?

Richard Atkinson: It is an area of concern for us because, clearly, it is right that individuals’ data is not routinely withheld, and we have looked at that in the past. I do not think I am qualified to answer on the need to extend the period, but your question very much enunciates our position, which is that any extension of time periods needs to be justified by objective evidence. I know the Committee were asking for examples of that from the two earlier witnesses. Before one could be satisfied of the need to extend periods of retention of biometric data, there would need to be a case made out. I certainly have not seen it. It was not something that could readily be articulated this morning, and great caution needs to be expressed before extending the periods of the retention of that data without an evidential base.

Q Can I just come back on the oversight of retained material? That is mainly paragraph 11 of schedule 3, on page 40 of the Bill. You have talked about an independent barrister or legal view about legally protected privilege. The Bill says that when a number of things are seized, including legally protected privileged material, but also broader material such as journalistic material and even health material, it has to go before the Investigatory Powers Commissioner. The Investigatory Powers Commissioner’s Office is an independent body, headed by Lord Justice Fulford. That body will then have to make the decision on whether that material could be examined or destroyed and so on. They are all judges. The Investigatory Powers Commissioner is Lord Justice Fulford, and his judicial commissioners are obviously former judges. What is the gap—what is missing—therefore between that oversight and the oversight that you think needs to be improved?

Richard Atkinson: First, the conflation of journalistic material and legally privileged material is unfortunate. I understand the importance of journalistic material, but I would respectfully submit that it is not in the same category as legally privileged material. It is a different category of material and should be treated differently. I may have misunderstood the process, but as I understand it, the investigator views the material, seizes it and then seeks power to retain it, which means that the privileged material has already been viewed and the privilege breached.

Q I am not entirely sure that that is correct. I think he will initially seize it. I think he needs permission. He must be informed of the retention. The Bill talks about the retention by the commissioner where

“there are reasonable grounds to believe”.

Richard Atkinson: So you have seized it, viewed it and seek permission to retain it.

Q The Bill states in schedule 3 that

“an examining officer may retain the article…for the purpose…while the officer believes”.

Paragraph 12 states:

“This paragraph applies in relation to an article retained by virtue of paragraph 11(2)(d) or (e)…The Investigatory Powers Commissioner…must be informed of the article’s retention”.

Paragraph 12(4) states:

“The Commissioner may…direct that the article is destroyed, or…authorise the retention and use of the article”

subject to whatever.

Richard Atkinson: My understanding—I could be wrong—is that that material will have been viewed prior to the application to retain it, which is a breach of legal professional privilege. The breach occurs, and then in order to perpetuate the breach, if I may put it that way, an application is made. That is too late, so far as legal professional privilege is concerned. Whether that is the case with journalistic material, I leave for others to argue. For legal professional privilege, to breach it and then seek permission to retain it is too late. It should be that as soon as privilege is claimed, that material is then examined. Ordinarily, you cannot go behind privilege, and that is it, but I understand that, in the particular circumstances being addressed here, it is important that the veracity of the claim is properly checked. That is what I am saying the first stage is. It is someone saying, “I am taking your briefcase.” The person says, “Don’t look at that file. That is a privileged file.” The other person responds, “Right. I will put it in a bag, and we will see whether it is.”

Q We should get some clarity on this. The legislation talks about seizing, rather than viewing. That may be enough to trigger it. If I claim something has legal privilege, that may be enough to trigger that a judicial commissioner looks at it—it is then referred to the commissioner, as opposed to your assumption that it will have to have been viewed before the request for judicial oversight.

Richard Atkinson: If your proposition is correct and there is therefore judicial oversight of that material, I would not have concerns, but that is not how I read it operating. We differ on that.

Q Are you happy with the Bill’s oversight of that process, with the judicial commissioners and the independent commissioners being the ones who give the authorisation to retain or destroy material?

Richard Atkinson: Yes, but the issue is whether privilege is breached prior to that.

Q Staying on this point, but moving away from the distinction about whether a document is privileged, do you think it would help if the Bill said, “Every single time this power is used, the commissioner will be informed about it”?

Richard Atkinson: Yes, I do.

The judicial commissioners will be the oversight for the use of the hostile port stops overall—the annual report or whatever it is.

As there are no further questions from Members, I thank you, Mr Atkinson, for your time and evidence this morning. As the Committee is not due to meet again until 2 pm, I invite the Government Whip to move the adjournment.

Ordered, That further consideration be now adjourned. —(Paul Maynard.)

Adjourned till this day at Two o’clock.

Counter-Terrorism and Border Security Bill (Second sitting)

The Committee consisted of the following Members:

Chairs: † Mrs Anne Main, Joan Ryan

† Bowie, Andrew (West Aberdeenshire and Kincardine) (Con)

† Chapman, Douglas (Dunfermline and West Fife) (SNP)

† Coyle, Neil (Bermondsey and Old Southwark) (Lab)

† Dakin, Nic (Scunthorpe) (Lab)

† Doughty, Stephen (Cardiff South and Penarth) (Lab/Co-op)

† Foster, Kevin (Torbay) (Con)

† Hall, Luke (Thornbury and Yate) (Con)

† Hoare, Simon (North Dorset) (Con)

† Huq, Dr Rupa (Ealing Central and Acton) (Lab)

† Khan, Afzal (Manchester, Gorton) (Lab)

† Lopez, Julia (Hornchurch and Upminster) (Con)

† Maclean, Rachel (Redditch) (Con)

† Maynard, Paul (Lord Commissioner of Her Majesty's Treasury)

† Newlands, Gavin (Paisley and Renfrewshire North) (SNP)

† Pursglove, Tom (Corby) (Con)

† Smith, Eleanor (Wolverhampton South West) (Lab)

† Thomas-Symonds, Nick (Torfaen) (Lab)

† Wallace, Mr Ben (Minister for Security and Economic Crime)

† Warman, Matt (Boston and Skegness) (Con)

Nehal Bradley-Depani, David Weir, Committee Clerks

† attended the Committee


Max Hill QC, Independent Reviewer of Terrorism Legislation

Michael Clancy OBE, Director, The Law Society of Scotland

Corey Stoughton, Advocacy Director, Liberty

Abigail Bright, Executive Member, Criminal Bar Association, and Barrister at Doughty Street Chambers

Peter Carter QC, Member, Criminal Bar Association, and Barrister at Doughty Street Chambers

Public Bill Committee

Tuesday 26 June 2018


[Mrs Anne Main in the Chair]

Counter-Terrorism and Border Security Bill

Examination of Witness

Max Hill gave evidence.

Q83 While we are waiting for Max Hill QC, let me say that we are expecting a vote, for which we normally allow 15 minutes. There is no injury time and Mr Hill must leave by quarter to 3, so after the Division, as soon as we are quorate—which is seven Members, including myself—we will resume questions, even if some people are not back. [Interruption.] Ah, here he is. Good afternoon, Mr Hill.

The Committee will now hear oral evidence from Max Hill QC, the independent reviewer of terrorism legislation. For this session, we have until 2.45 pm. Mr Hill is aware that we might well have an interruption due to a vote. Mr Hill, would you please introduce yourself for the record?

Max Hill: Thank you very much for inviting me. I am the independent reviewer of terrorism legislation—as some people sometimes put it, I am the new David Anderson. I review four statutes, namely the Terrorism Acts 2000 and 2006, the Terrorism Prevention and Investigation Measures Act 2011 and the Terrorist Asset-Freezing (Temporary Provisions) Act 2010, part 1 of which is shortly to be repealed in favour of the Sanctions and Anti-Money Laundering Bill when that has statutory force.

Q Thank you, for coming along to assist today, Mr Hill. I have read some of your writings about the Bill and watched your evidence to the Joint Committee on Human Rights, so I am aware of your views. Could I ask first, just in broad terms, about clause 3, which updates the streaming offence from the downloading offence? Do you think the clause is satisfactory as it is, and, if not, what changes would you suggest?

Max Hill: By way of introduction, I have sought to look with care at the clauses alongside my senior special adviser, Professor Clive Walker, and he and I would agree in answering that question. The amendment—perhaps it is better to say the new variant of the section 58 offence—is likely to be difficult in practice. It is my duty to warn the Committee that it is very likely to attract arguments of principle based on a rights analysis, principally article 10 on the freedom of expression.

I commend the Government, who have scrutinised counter-terrorism strategy ever since the Prime Minister announced on 4 June 2017 that it would be done. My commendation is on the basis that we do not see brand new precursor offences appearing in the draft legislation. As an independent reviewer, I was worried that we might come across new offences of aspiration for terrorism—for want of a better expression—but I am pleased to see that we do not have them. The question that you pose on clause 3 is, first, whether this is a new offence. That is debatable, but it certainly is a new way of committing the existing offence under section 58.

I am concerned about the very low threshold that has been set, and about the lack of precision in some respects that at the moment is written into clause 3. Trying to move, though, from a position of giving credit to the Government, who have looked at it very carefully, what I believe they are attempting—the explanatory notes give force to this—is to identify a “pattern of behaviour”. That is a phrase from the explanatory notes for clause 3. If the clause as drafted is capable of identifying a pattern of behaviour, then although article 10 arguments do not go away, one can understand the logic behind the new variant of a section 58 offence, but I am concerned that it might not go that far—in other words, it is incapable of establishing a pattern. Why? Because the three clicks offence—forgive me for using the shorthand—may relate to different material rather than to repeated viewing of the same material, and there is no indication of the period of time over which an internet user may log on for different sessions. It is certainly no longer necessary for there to be any download or offline footprint of the material, whereas section 58 currently pretty much requires that, and of course the more general arguments are that there is no requirement that the individual either go on to prepare, or still less commit, an act of terrorism. That is a very low threshold.

The last part of my answer—forgive me for going on at a little length, but this is a headline example of the new variant offences—is that the French Parliament has attempted to legislate into exactly this space. On two occasions, the Cour de Cassation—the constitutional court in France—has struck down the French equivalent, yet the French equivalent attempts to define “reasonable excuse.” To put that another way, it exempts from prosecution—I am paraphrasing here—professional research, which may be journalistic or academic. This clause does not do that.

I have no doubt at all that the general reasonable excuse defence under section 58(3) remains, but—forgive me for repeating a phrase that I have used elsewhere—the mesh of the net that the proposed new clause would create is likely to be so fine that, although it would perhaps capture some who represent a pattern of behaviour, it would also capture others who probably do not. I hope that answers your question as to the concerns I have.

Q I will combine two questions about how to improve the clause. First, would it help to be more specific on the face of the Bill about the reasonable excuse defence and what that might include? Secondly, should we have a time limit—12 months, to pick a time limit out of the air, or perhaps another period—for the streaming offence in clause 3? Would those two changes assist?

Max Hill: The short answers are yes and yes. All I would add as a criminal lawyer is that, as many members of the Committee will know, the appellate courts have been asked to consider reasonable excuse on at least two occasions—the cases of G and J in the House of Lords in 2010, and the case of AY in the Court of Appeal in 2011-12. At a judicial level, the courts have said that reasonable excuse means anything that is capable of being regarded by a jury as reasonable. That is perfectly understandable, because judges like me do not make law; it is Members of the Houses of Parliament who make law.

Perhaps one way of putting it is that if we are going to have a new offence, there is an imperative to define with greater precision the ways in which somebody is not guilty of that offence. That is just as important as defining and placing in statutory form the ways in which someone is, or may be, guilty.

Q Following on from Mr Thomas-Symonds’s question, can I probe slightly? Given the pressures of time, I hope that it will just be a slight probe.

I listened with great attention to what you said, Mr Hill. As a matter of principle, do you think that a clause that aims to track, monitor and quantify streaming, its effects on behaviours and so on, perhaps amended to reflect some of the issues that you have set out, merits inclusion in an Act of Parliament? You have suggested some improvements or embellishments to the clause, but if you were given a free hand, would you say, “If you are going to have it, you need to embellish it,” or, “Actually, it would be better not to have it at all”? Does that make sense? I am not a lawyer, so I am not very good at asking these lawyerly questions.

Max Hill: That does make sense. Given a choice—given a free hand—I would be more likely to argue that it is not necessary to legislate in this way at all. Let me explain that in two very short ways. First, I do not seek to undermine the existing section 58 offence of collecting information. It has its place on current indictments, many of which I have prosecuted over the years. I do not seek to undermine that, but this new variant sets a lower threshold than we have at the moment.

The second point is that there is at least an argument, or perhaps a discussion, which no doubt time forbids today, that there is a very considerable overlap between what one has in mind by clause 3 and the existing offence of encouragement of terrorism, which is separately enshrined in section 1 of the Terrorism Act 2006. If that argument has force, that is the second way in which I would say we do not need to replicate where we already have a precursor offence—one that has withstood scrutiny for more than a decade and that actually goes into considerable detail in its sub-clauses as to the definition of recklessness, for example. Where section 1 of the 2006 Act already covers territory, I would be tempted to argue that this is unnecessary.

Q Mr Hill, you talk about lowering the threshold. Obviously, that is a subjective assessment. Perhaps the threshold set in part of the 2000 Act was about right given the circumstances at the time, the challenges the country faced, the nature of terrorism as it presented itself, and indeed the scope and reach of the internet. Are we now, 18 years subsequent to that, right to review and potentially to lower the threshold because the opportunity to engage, search and disseminate information is such that it is now much easier and available to affect a larger number of people than was the case even 18 years ago? I know it does not seem that long ago, but in technological and internet terms, it is a millennium ago.

Max Hill: Yes. I agree, if I may put it this way, with the Home Secretary on relaunching Contest on 4 June, when he said in answer to questions that this Bill introduces a number of “digital fixes”—the Home Secretary’s words—to existing legislation. It is of course right that, even after one decade—sometimes even less, because of the way that communication technology moves on—Parliament is perfectly entitled to revisit existing offences. What that means is that a redefinition to include online activity within section 58 does not strike me as controversial.

What does strike me as difficult, though, is the suggestion that somebody who is thinking in a particular way without more—let us define that as a predisposition to extreme thinking—has crossed the line into terrorist offending, which is violent extremism. I am concerned that setting a lower threshold, which is a matter for Parliament, actually takes one across that line and ultimately we are doing nothing more by clause 3 than identifying people who may express an interest in certain types of material, but who up until now have not been at risk of prosecution for terrorist activity. They may be of interest to counter-terrorism policing and to the security and intelligence services—it is their function to take a very keen interest in even this sort of activity—but I am concerned about saying that that has crossed the threshold into criminality.

Thank you. I am conscious that we could have a Division very soon and I am conscious that the Minister and the shadow Minister also wish to ask questions. I hope Mr Doughty is happy that we swap places and put Mr Dakin next, and afterwards I will call the Minister?

Q Thank you, Mrs Main. Given your experience, Mr Hill, do you have any other misgivings about the Bill as drafted that you have not already raised?

Max Hill: I hope I have given appropriate credit for other matters that might have been brought forward in this Bill but have not been. What I would say, looking at the five offence-creating clauses in general, is that clause 4 is something against which there is no pushback—no adverse reaction from me. In other words, amending sections 1 and 2 of the 2006 Act to place the jury’s view at the heart of offence creation—the view of a reasonable person as to whether encouragement is actually what the defendant is about—strikes me as eminently sensible, so I agree with clause 4.

I agree with clause 5 as to the principle of extraterritorial jurisdiction and the extension of the remit of the Explosive Substances Act 1883 and sections 1 and 2 of the Terrorism Act 2006. There is no comment from me—I agree. However, I am worried about the extension of section 13 of the 2000 Act—the proscription offence—and affording extraterritorial jurisdiction to that, because of the dual criminality issue; forgive me for using lawyer’s shorthand. This country takes a robust and appropriate approach to proscription, which may be different from that taken by other countries. I suggest that clause 5, at the very least, needs reconsideration as to whether extraterritorial jurisdiction concerning section 13 should be limited to UK citizens, who are deemed to know how we deal with proscription here, as opposed to foreign nationals.

On clause 3, I have answered as far as can. Regarding clauses 1 and 2, recklessness as used in clause 1 is a term of art that I know caused discussion on Second Reading and may do so again. From a simple lawyer’s perspective, however, this is nothing new: subjective recklessness is a feature of the criminal law away from counter-terrorism legislation. It is defined with some precision in section 1(2)(b)(ii) of the 2006 Act, which defines recklessness for the purpose of encouragement of terrorism. Provided that the Government intend the same definition when they refer to recklessness under clause 1 of this Bill, I have nothing to add. My assumption is that that is the intention.

That only leaves clause 2, which amends section 13 of the 2006 Act—the flags and paraphernalia offence. As a legal historian, it is interesting to note that we are moving away from the public order origin of legislating in this space. The public order Acts of the 1930s were intended to deal with demonstrations on the streets; clause 2 now takes this out of a public space and into a private space, and, as the explanatory notes make clear, a particular flag on a bedroom wall is sufficient for the commission of the offence. I would suggest that evidence of what is on the bedroom wall of a perpetrator is already admissible and routinely referred to by prosecutors as supporting material for indictments for other offences; the only debate is whether it is the commission of an offence on its own.

Whatever the answer on that initial concern, the extra concern that I have about clause 2 is that, without more, it begs some serious questions about the display of historical images. There is no statute of limitations on clause 2. I wonder whether one is intended, whether there should be one, or what clause 2 unamended says about those who seek to display in private historical images of individuals working for organisations that were proscribed decades ago where it is a matter of historical interest and nothing more. It seems to me there is a vulnerability in clause 2. I understand where the Government are trying to get to, but some tighter definition might be of use.

Q Can I go back to the clause pertaining to section 58 of the Terrorism Act 2000—the streaming clause or the three clicks provision? The original section of the Terrorism Act 2000 is very clear: it is about collecting material, which can include a record which is electronic. Back in 2000, broadband was pretty slow, if it worked at all, so most people watched things by down- loading; nowadays it is streamed, because, first, you do not want to use up your own data and secondly, that is how most of us live our lives. If you are going to watch iPlayer, you do not download each programme before you watch it. Streaming is a reality that is not reflected in the 2000 Act; that simply refers to the way that people look at records. In your experience of doing the job so far, is streaming now used quite broadly by terrorist suspects in learning things, spreading belief or radicalisation, or indeed training? Do you see a lot of that?

Max Hill: Let me answer you this way. I am with you on the digital fix, because I think that is what you are referring to. It is undoubtedly a new variant that, instead of downloading, there are some circumstances—although technically they are quite few—in which one goes no further than streaming and there is no download imprint that has been caused. I add that prosecutors are already alive to the risk of using as prosecution evidence cached material, within an internet cache, from which it does not follow that the perpetrator has ever actually read that which appears in the cache. I know that the clause is not designed to capture information of that sort, but we need to be very clear that a cache on a laptop or phone is not evidence of personal interest by the owner of the device in the material in question.

Streaming is a modern phenomenon and to that extent I am with you, but section 58 in its origin might be looked at as an “anti-proliferation offence”—my phrase and nobody else’s. I would suggest that one of the reasons Parliament originally looked to section 58 is to stop the proliferation and perpetuation of material that we deem to be extreme terrorist propaganda, which should not go to other places. This does not deal in the same way with that. This is not anti-proliferation, because, by definition, somebody who streams and does not go any further is not bringing to the attention of third parties—still less is he or she storing for dissemination later on—material that is already online.

So there are some very strict limitations to what somebody is actually doing by streaming without more. They are not straying into the section 2 of the 2006 Act dissemination territory, which they might with section 58 in its current form. Download might be issue number one, and then issue number 2 might be later proliferation, perhaps with additions or amendments to whatever was originally downloaded. That is not what we are talking about here. We are talking about merely online streaming in—as I am afraid I have described it—rather imprecise circumstances as to time and circumstance, and that is why I am concerned.

Q If we all agree that streaming is a problem and is a modern reflection of how people are viewing things, would another solution to your worries be simply to amend section 58? The first line of section 58 says:

“A person commits an offence if (a) he collects or makes a record of information of a kind—”

so that in and of itself is an offence with a reasonable excuse defence in it.

Max Hill: Yes.

Are you happy with section 58 of the 2000 Act as it stands?

Max Hill: Yes. I hope I have made clear that I do not seek to undermine that. I have a practical question—it is nothing more than that—as to whether it forms an indictment pure and simple. I am very familiar with it and have prosecuted indictments myself where section 58 offences on their own, or in multiples, are used as supporting evidence for more serious preparatory or terrorist plotting activities, but it is very rarely used on its own.

Q But as it stands at the moment, it can be an offence on its own?

Max Hill: It can be, technically, yes.

Q If you were to just amend subsection (a)—

“A person commits an offence if…he collects or makes”—

and added “, or streams”, would you be satisfied with that? Would that address the issue we are getting at?

Max Hill: In one sense it would, but I am afraid it still begs the questions as to how much you are streaming, on how many occasions, and how much interest you are actually showing in material that you do not go on to download or store. Reasonable excuse, as you say, remains. The concern I have is that, whether the French example is a good one or a bad one, the legislators there have sought to provide exemptions and licences for obvious categories—professionals, academics, journalists—which we do not have in this draft clause. There must be a danger that individuals will be put to the trouble, and often considerable expense, of facing an indictment, raising reasonable excuse at trial, and it then being incumbent on the prosecution to disprove it where they should not have stood trial at all.

Q Could that already be the case for academics downloading, recording or collection information under the existing section 58?

Max Hill: It could.

Q And it has not been struck down by any of our courts?

Max Hill: No, it has not been struck down. There is appellate judicial guidance on what reasonable excuse means. I suppose that my point is that if we are extending the ambit of activity that is likely to require that reasonable excuse defence, it becomes more important that we do more to define circumstances in which the offence is not committed, rather than leave a generic reasonable excuse defence currently undefined.

Q The Government are always being probed for judicial discretion. There is the idea that we have a tendency to be too prescriptive and want to encourage judicial discretion. Is that not, a bit like the appellate guidance that you talk about, a place for judicial discretion?

Max Hill: There is judicial discretion and before that, of course, there is prosecutorial discretion. The Director of Public Prosecutions, or her designates, will have a discretion as to whether to prosecute. But I am afraid, from my position as an independent reviewer, I am bound to say that although that is a valuable safeguard, it would be better, given the opportunity, if we defined as matter of legislation more closely the circumstances in which an indictment should follow, rather than left it to prosecutorial discretion.

Sitting suspended for a Division in the House.

On resuming—

Q I want to ask two questions. The first is about the detention provisions, the removal of property and so on. Parts of the Bill mirror the existing schedule 7 powers, and I have encountered concerns about how those operate. We obviously want these powers to operate effectively, but we also want to maintain the public’s confidence around their use. Where do you think the Bill is on that? Do you think the balance it strikes is right?

Max Hill: You are obviously referring to schedule 3, which introduces a border security equivalent to schedule 7 to the Terrorism Act 2000. They are separate mechanisms. The first point is that, although I understand that they are both to be deployed by counter-terrorism policing—the same officers at our borders—it is not a pick-and-mix choice between legal powers. In recent years, there has been some intense scrutiny of the use of schedule 7 —the best example is the case of the journalist Miranda, in relation to the Snowden material—so it is all the more important, if there is to be a new parallel power, that CT police at our ports are given training, that there are codes of practice, and that police operate from a base of certainty and training when they detain a traveller, whether under the border security provisions or under the existing schedule 7.

I have a remit to review in relation to schedule 7, but it is clear from schedule 3 that I do not have a remit in relation to border security. I would therefore defer to Sir Adrian Fulford, whose remit covers this area. No doubt, his views will be far more important than mine.

The comment I would make is that, like schedule 7, schedule 3 as drafted is absent any independently referable test for the application of the new powers. I am still awaiting the Government’s response to my recommendation in my annual report, published in January this year. I recommended a test of reasonable grounds to support the use of schedule 7 in accordance with codes of practice. I know from subsequent discussions with the Government and officials that very careful thought is being given to that, but I await the outcome. It is my hope that, if we do not have reasonable grounds for suspicion, which my predecessor recommended, we should at least have a threshold test.

There may be a clue, in the absence of a threshold test in the new schedule 3, as to how the Government will respond to my suggestion of a threshold test under schedule 7. Because thousands of travellers are being inconvenienced every year under schedule 7, this is an important feature. My thinking—although, again, I would defer to Sir Adrian—is that the border security power is likely to be exercised in far fewer numbers. We may be talking about 100 or even the low dozens of individuals. None the less, looking at it from the perspective of principle, this needs to be very carefully scrutinised. That is my reaction to schedule 7.

Q That is very helpful. On an unrelated issue, the Home Affairs Committee, on which I sit, has been discussing the issue of extremist and terrorist content online. Obviously, there are provisions in the Bill relating to those viewing such material. I have a lot of concern about the failure of technology companies to remove such content adequately. The voluntary approach works to an extent, but it has not worked in many areas. We have identified very serious examples of where major companies such as YouTube, Twitter and Facebook have not removed content. Obviously, there is a different legislative environment in Germany and other countries. I have tabled a new clause requiring manual and automatic searching of all proscribed organisations. I accept that there is a difficulty with the wider boundaries of what is or not, but given that we do have a legally defined list of proscribed organisations, what is your view about whether more needs to be done to regulate such activities—

Mr Doughty, that was too long a question. I am conscious that Mr Hill has got to go at 2.45 pm, and several of your colleagues wish to get in.

Max Hill: My line on this, which has been constant—rightly or wrongly—is that we should really hesitate before legislating against these very large internet companies, which have the tools at their disposal to look at the material that their platforms support. It would be a more desirable outcome to have ever-greater co-operation and collaboration—obviously, with supervision and access where possible for counter-terrorism policing. That would be preferable to legislating in this space.

My observation, for what it is worth, is that if the large internet companies were not aware of the need to scrutinise their own online spaces before the atrocities in this country last year, they are much more keenly aware of it now and are doing more. Alongside that, we have the Global Internet Forum to Counter Terrorism, which was, if I may so, very ably supported and encouraged by the former Home Secretary. It is doing good work in data-banking extreme content, providing it can be clearly identified.

We have to exercise care in this area. To take an example not relating to terrorism for just a moment, anybody can identify a pornographic image of a child—that is not difficult. Identifying terrorist propaganda is more difficult. That is where the global internet forum comes into play.

The second point is that, having data banked by the headline companies under the forum, it is important that those companies play their part to impress on their much smaller commercial partners or competitors that the smaller platforms need to take the same route. My line has been that that is better through coercion on a non-statutory footing. Of course, we wait to see how effective the new power will be in Germany, and I am aware of other countries that are considering it. So I suggest you are right to consider it; whether we are at the point of legislation yet, I beg to differ.

Finally, the Counter Terrorism Internet Referral Unit, which is a counter-terrorism policing vehicle—I have sat at the shoulder of dedicated officers who surf the web, day by day, with a view to issuing section 3 2006 Act take-down notices—is doing valuable work without the need for further legislation at this time. I understand that the report is that once a take-down notice is issued, that material is taken down in almost every case within 40 minutes of the request. So, if I may say so, we are in a better place than we were a year ago. I agree with the thrust of your question—that we must always do more—but I beg to question whether legislation is needed yet.

Mr Khan will ask a quick, succinct question, and then, Mr Hill, you have three minutes or so to answer.

Q You have talked about lowering the threshold in the Bill and about no preparation for an act being necessary, yet we see that sentencing is up to 15 years. How fair and safe are these changes?

Max Hill: The way I would look at it is there are tiers of terrorist offending. At the top tier, there is a clear need, on a discretionary basis, for the imposition of indeterminate sentences. The life imprisonment provision is important, and that is why, under section 5 of the 2006 Act—the preparatory offence—individuals can be sentenced to life imprisonment, and a number of recent cases have found that necessary.

What the Government are looking at here, it seems to me, is second tier—we might argue as to whether the sentencing provisions are second and third tier or just second tier. There is a legitimate argument that, at the second tier, the time may have come to increase the discretionary maximum—I emphasise discretionary only. I would not have supported mandatory minimum sentences, which we see in other general crime statutes here and there. I am glad that we do not see that in this area, where the most experienced and, frankly, hand-picked judges try these cases. They are in the best position to judge the criminality and the balance between offence and offender. We have the Sentencing Council’s guidelines for terrorism. There is no evidence of a call for higher discretionary maximums, so when debating the sentence provisions, I would encourage some thought as to how necessary that is.

So I give principled support to some increases for second-tier offences, but the one area in which I would definitely have supported an increase in a discretionary maximum sentence is the one area the Government have not included: section 38B of the Terrorism Act 2000, which is the knowledge or belief that an individual—a principal offender—is about to commit a terrorist offence or has committed one, in circumstances where there is no call to the authorities.

The Court of Appeal has looked at that offence—the case is Girma, some eight or nine years ago now—and the statutory maximum is five years. I can see an argument—if I may take an example from last year—where there was an individual who was aware of the planning for either the Manchester Arena attack or the London Bridge attack and did nothing about it, for that individual perhaps to be at risk of a discretionary sentence of five years or above. However, that is not a provision that has been included in the Bill.

It is a delicate area, and it should be evidence-led. I would say there is some evidence for extending the discretionary maximum for section 38. I am concerned, however, about extending the maximum under section 58 —particularly in the new variant, clause 3—as high as 15 years. I beg to ask whether somebody should be at risk of a sentence of that magnitude if and when convicted only of the clause 3 offence.

I call Dr Rupa Huq, but I think you have only a second to ask your question.

Order. I am afraid that brings us to the end of the time allotted for the Committee to ask questions. On behalf of the Committee, I thank Mr Hill for his evidence. Perhaps you might be my first port of call in the next session, Dr Huq.

Examination of Witness

Michael Clancy gave evidence.

Could you please introduce yourself for the record, Mr Clancy?

Michael Clancy: Good afternoon. My name is Michael Clancy and I am the director of law reform at the Law Society of Scotland.

Q Welcome Mr Clancy. From a Scottish or a devolved perspective, is there anything in the Bill that the Committee should take cognisance of?

Michael Clancy: Schedule 5 of the Scotland Act 1998 reserves to the United Kingdom issues of terrorism legislation. In that sense, terrorism legislation is not within the competence of the Scottish Parliament or of Scottish Ministers, so one might say no. But there is a “but”, which is of course that criminal law and criminal justice—the courts in Scotland, the police, the prison services and the legal profession—are all elements of devolved competence, so therefore there is a point at which these two tectonic plates meet. Due accord should be given to the fact that one is dealing with a different legal system with different traditions and a different structure.

We have always advocated the idea that the United Kingdom and Scottish Governments should get along on issues where these matters concern us all. An example of that is the memorandum of understanding between the Attorney General and the Lord Advocate, which was signed by Attorney General Patricia Scotland and Lord Advocate Elish Angiolini. I hope to see that sort of co-operation as we go forward.

Q We heard this morning, in terms of some of the Bill’s provisions, such as the three clicks and the lack of a time limit on that, that to rely on prosecutorial discretion, rather than having fixed limits and so on in the Bill, is a step too far. Do you agree?

Michael Clancy: That is an interesting question, and it allows me to get out my brief on clause 3. Prosecutorial discretion is an important issue. The position of the Lord Advocate in Scotland, as a Scottish Minister, is separate from his position as head of the prosecution service. Prosecutorial discretion is therefore key to how the prosecution service undertakes its work, and it has to be inherent in any prosecutorial legislation. It is quite difficult to dictate to the prosecutor what cases should be prosecuted, so I would prefer to stick with the arrangements for prosecutorial discretion in Scotland.

Thank you for coming along, Mr Clancy. I appreciate your evidence about terrorism legislation being reserved to the UK and about the memorandum of understanding between the Attorney General and the Lord Advocate and so on. However, moving beyond that, do you have any concerns about clause 3 of the Bill that you have not already referred to?

Michael Clancy: I think we were generally in favour of the idea that this area should be updated to take account of the digital revolution. The fact that the review of terrorism legislation that the Government precipitated last year has resulted in no further offences, as Max Hill described, is a vindication of the extent to which the law captures most of the issues. However, there are always questions that can be asked—some of which you have already heard about—about the balance between the right of expression and the requirements under the Bill.

It is fair to say that the courts have been quite explicit about where they fall on that balance. The right to freedom of expression under ECHR article 10 is not an absolute right; it has to be balanced with the other rights that the rest of us enjoy, such as the right to life, and so on. Therefore, although others may not subscribe to this view, the case has to be made that the provisions in the Bill will upset those rights to the extent that we would be considerably concerned about them, given that they build on existing provisions that have already been tested in the courts.

In that context, we have to look at all the legislation we have got—several Acts relate to counter-terrorism—and construct some sort of codification or consolidation of it. I do not know about you, ladies and gentlemen, but flitting between three or four Acts of Parliament within the compass of one Bill is difficult enough. It is difficult to imagine that those who will be subject to the legislation will do that kind of thing. We should make the law as simple and easily understood as we can.

Q Thank you very much for coming today. May I ask your view of clause 1, which is obviously the part of the Bill that talks about expressions of support, and the challenge around that? Critics have used the phrase “thought police”. Obviously, we are trying to grapple with the threat from inspiring—people who do not specifically stand up and say, “Join ISIS”, but use their position recklessly to promote such organisations by saying, “I think they are great,” and so on. Correct me, because I may not know this. Is the previous legislation that deals with the area of incitement and religious hatred devolved or reserved?

Section 18 of the Public Order Act 1986 and the Racial and Religious Hatred Act 2006 effectively do the same thing: they set out that, for an offence to have been committed, you do not have to tell people to hate, or say, “You must attack Muslim people,” or, “You must attack Jewish people”. You can express in a private or public place sentiments or views that could have the consequence of inciting racial or religious hatred. Do you see a read-across from that position, which is accepted in established law, to clause 1, so it relates to encouragement towards a proscribed organisation?

Michael Clancy: I have not, I confess, made that read-across myself, Mr Wallace, but I will go back to Edinburgh and do so later on today. The general proposition about someone making a reckless statement and about whether the person to whom the expression is directed will be encouraged to support a proscribed organisation raises a couple of issues. What is reckless? It is taking a risk, in terms of the information you convey about the outcome of what you say. What is a proscribed organisation might, too, be a difficulty, because if I were to ask members of the Committee to list all the proscribed organisations they might not be able to do that. It might also pose a difficulty regarding whether some people making statements are supporting a proscribed organisation as we understand that to be the case.

There are some issues. There is a read-across to the analogous provisions in race and religion. Of course, if we have those models to follow, and those have been followed without any difficulty since they were enacted, the Government are probably on safe ground in extending the provisions to the kind of incitement envisaged in clause 1.

Q It is fine. I have two questions if we have time. We heard this morning from your colleague of the Law Society of England and Wales that there is great concern that schedule 3 has both access to justice issues and issues pertaining to legal professional privilege—that is, the inability to consult a lawyer in private. Do you share those concerns, or do you have a different view?

Michael Clancy: They can certainly be stated to be real concerns. The concept of legal professional privilege and the concept of confidentiality in Scotland are similar but not exactly the same. If we want people to be in a position where they can freely discuss matters with their legal representatives, we have to preserve this value. It is key to the rule of law that people can discuss matters openly with their legal representatives so that the solicitor, advocate or barrister is in a position to advise properly on what avenues are open to the person. Clearly one would want to ensure that that was adequately protected.

Q Back to your earlier point about prosecutorial discretion, do you think there is a danger that elements of clause 3 risk criminalising thought without action?

Michael Clancy: Well, there is an action: clicking three times is the action. It depends on what is clicked on and how that works in practice. It says in the existing provision for the collection of information in section 58 of the Terrorism Act 2000:

“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…he possesses a document or record containing information of that kind”

or—this is the addition made by clause 3 of the Bill—

“on three or more different occasions the person views by means of the internet a document or record containing information of that kind.”

That fits in the analogous provision in the 2000 Act of possessing

“a document or record containing information of that kind.”

The fact that it is on the internet is simply an update.

I am not convinced that three strokes is the problem. We heard from Max Hill about the French cases. We have to be cautious about drawing analogies with another legal system—certainly one that has a written constitution and a codified arrangement for its law. Those are two significant differences from the system here, where something that contravenes article 10 or some other article of the European convention on human rights is subject simply—simply—to a declaration of incompatibility. That would require Mr Wallace to come to a decision about whether he would amend the legislation, were the courts to make such a declaration of incompatibility.

We must be careful about demonising this issue in that way, in so far as there has not already been trespass on the idea of freedom of expression and freedom of thought. That is that balance that has to be struck between making the counter-terrorism law work and at the same time preserving our rights. The courts have to be asked to make that balance day in, day out.

I wonder just how one would work around this provision. If I were so minded, would I, for example, click once and then take out my phone and take a film of what I was watching on the internet? Is that a reasonable proposition? Is that captured in this Bill? I do not think so. Those are the kinds of questions that one might return to later on in your deliberations.

Q Just one question, Mr Clancy, arising out of the Minister’s question about section 18 of the Public Order Act 1986 and the Racial and Religious Hatred Act 2006. Both Acts are about the use of abusive, threatening or insulting behaviour to stir up hatred, but do you agree that there is a distinction between that and actual recruitment to the cause, which is what the clause in this Bill is talking about? Are they different things?

Michael Clancy: Clearly, there is a legislative distinction between the two. It depends on what the abuse in terms of race or religion is intended to do. Is it simply to make someone feel uncomfortable, aggrieved or violated, because of their religion or race? Or is it in some kind of a way to encourage others to take up that same kind of attitude toward people based on their religion or race?

Legislation in this area, countering discrimination on the basis of religion or race, is something that we have had in this country since the 1960s. Therefore, the fact that we are continually having to look at this again means that the educative value of that legislation has not yet reached its optimum. We have to be aware of pushing that further, to make sure that those who would fall into that pattern of behaviour know that it is wrong, illegal and that they must desist from doing it.

Q I want to follow on from the previous issue of the person collecting the materials and the three clicks. I do not know if you heard my question to Max Hill, which was that given that section 58 of the 2000 Act is well established, has been used and has not been struck down by challenge in a European court setting, if instead of defining by three clicks it was to explore simply adding in streaming, with the reasonable excuse defence, do you think that would solve the problem of streaming as opposed to holding or downloading information?

Michael Clancy: If you have an adequate definition of streaming, that might work, but for me it is just a word that people use when they are accessing information and videos on the internet. I suspect that the kinds of videos that are covered by this legislation will not have a pop-up window that says, “Do you want to play from the start or resume from where you left off?” The idea that these might be formal productions is not the case.

If we can do something that makes the legislation tighter and more usable, of course. But we may get into those difficulties about what is meant by streaming, how long does the stream have to be and what kind of document or record is being streamed.

Q To reflect on section 58, when we talk about collecting electronic records or making a copy, we do not qualify that by saying that the definition is that it has to be longer than 10 seconds long or it has to be an hour long. We do not do that already; we do not seek to narrow it there.

Michael Clancy: That is a good point. Perhaps we have to look at that and say whether it is covering everything we need to cover there.

I am also interested in the defence provisions about having a reasonable excuse. Reasonable excuse covers most of the instances, but under the Criminal Justice Act 1988 of course, someone can have lawful authority, justification or excuse. If we look at Section 57(2) in the Terrorism Act 2000, it says there is a defence if

“possession of the article was not for a purpose connected with the commission, preparation or instigation of an act of terrorism.”

There may be a way in which one could look at that element of defence to make sure that those who are anxious about this provision have their concerns allayed.

Q You mentioned in passing in an answer to Mr Newlands that access to legal advice and issues surrounding confidentiality were different in the Scottish and English legal contexts. As this is a whole UK Bill, I wondered if you might expand on that. I would also ask what your experiences have been in the Scottish context of the operation of the counter-terrorism ports power, in terms of detainees having access to legal advice.

Michael Clancy: The distinction between reserved and devolved matters is that if it is listed in schedule 5 of the Scotland Act 1998, it is reserved. If it is not, it is devolved. That is why aspects such as the legal system, the courts and the legal professions are devolved, because they are not listed as being reserved. It means that the justice agencies in Scotland, including the courts, the police and the legal profession, have to exercise a law that is reserved, but they exercise it in a devolved context. That covers areas where advice is given and where the police have to act, except in provisions where they might be directed in the Bill, or the Act, to do so. I hope that that gives you enough on that.

I am afraid to say I have no experience of the ports provisions that I can offer, but I will ask the question back in Edinburgh and see if anybody can enlighten me. If so, I will write to you.

If there are no further questions, thank you for giving your time to give evidence to the Committee. We will move on to our next set of witnesses.

Examination of Witnesses

Peter Carter, Abigail Bright and Corey Stoughton gave evidence.

We will now hear oral evidence from our last panel of witnesses. They are Corey Stoughton, advocacy director of Liberty, Abigail Bright, executive member of the Criminal Bar Association, and Peter Carter QC, a member of the Criminal Bar Association. Both Abigail Bright and Peter Carter are also barristers at Doughty Street Chambers. We must end this session by 3.45 pm. Would the witnesses please introduce themselves for the record?

Corey Stoughton: I am Corey Stoughton, advocacy director at Liberty.

Abigail Bright: My name is Abigail Bright. I am a practising barrister at Doughty Street Chambers.

Peter Carter: I am Peter Carter. I am Queen’s Counsel at Doughty Street, and I am also a member of the Bar Council law reform committee.

Q If I could start with you, Corey Stoughton, could you turn please to clause 14 of the Bill, which is the traffic regulation clause? Having read some of Liberty’s previous comments on the Bill, I know that there is a concern here about the imposition of charges, which would have an impact on legitimate protest. Could you explain your concern about that?

Corey Stoughton: Thank you for raising this issue. Our concern with clause 14 is simple and straightforward. Read strictly, it would allow charges to be imposed on the promoters or organisers of events in connection with the cost of protecting those events from terrorism. To be consistent with the right to assemble and protest under article 10, there must be a legislative exemption for activity protected by those fundamental rights. That is an exemption that we have seen replicated in other, similar provisions in UK law. I assume it was just an oversight that that exemption was not put in here. A simple fix to this would be to recognise that putting such charges on activity protected by the right to protest and assemble is an undue burden on that activity, and the cost of protecting those events has to fall on the state in the course of its obligation to protect that right.

Q Turning from that issue to the retention of biometric data, do you think there should be additional safeguards to protect those who are wrongly arrested as a result of mistaken identity or poor intelligence?

Corey Stoughton: Yes, I do. Viewed against the context we currently live in, where the Government have struggled to correct existing deficiencies in databases such as the police national database of custody images, it is deeply concerning that the Bill’s provision on biometric data retention extends the powers on retention of data, including fingerprint data and DNA data, of people who are arrested but not charged—that is to say, innocent people—and also removes the critical safeguard of requiring that retention to be proved by the Biometrics Commissioner.

Arguably, the current system has insufficient safeguards and, against the backdrop of the repeated pattern of an inability to correct databases that have already been ruled by courts not to be complying with human rights standards, there should be great caution and a pause before expanding the Government’s power to retain the data, particularly when that data belongs not to people convicted of any crime, but to people merely arrested, which would include those who have been falsely or wrongly arrested for terrorism-related crimes.

Q Again to Corey Stoughton, your briefing says that clause 3 risks criminalising academics or journalists. I used to be a journalist, and I cannot myself recall a case where a journalist has been prosecuted for the kind of things that you are worried about, and which we would all be worried about. Is there a case that I have not noticed, or is this a theoretical inquiry, in which case, are you simply arguing for responsible prosecutions?

Corey Stoughton: It is not theoretical. I have to say that, although concern about wrongful prosecution is a legitimate concern, the real concern here is with the chilling effect that this has on journalistic activity. The question is not, do we believe that prosecutors will prosecute a Guardian journalist who clicks three times on extremist content. The real question is what journalist—what independent journalist, what citizen journalist—would be deterred from engaging in valuable journalistic activity? They will now, given the sentencing enhancements in this Bill, face a potential 15-year penalty for clicking on extremist content, which they may have done over the course of any unlimited period of time.

So we are concerned with that chilling effect and the fear of what that does to a journalist. It is a very brave journalist who would risk a 15-year sentence for anything, but you should not even require that level of bravery to be a journalist. Many journalists who are out there pursuing important critical activity are not protected by the legal teams that people at established journalistic institutions are, but that journalism deserves protection and respect, no less than other journalism.

Q Is it your argument that that chilling effect is immeasurable because we do not know what it is, or do you have any sense of what that chilling effect might be?

Corey Stoughton: We have heard Index on Censorship reporters and press freedom groups that represent journalists say that they have serious concerns about that. That establishes quite well that the journalist community itself is concerned about it.

Q Are those concerns backed up with evidence, or are they concerns about what the future might look like?

Corey Stoughton: I think they are both. It is one thing when you can say, “As long as I don’t download, I can engage in my journalistic or academic activity”—whatever mode of investigation a person is deploying in their life—but under the Bill the offence is merely clicking on something. That, I think, raises the bar a substantial degree over the current offence, which requires downloading. In point of fact, to date there has not been a stand-alone prosecution of the existing offence. It tends to be brought as a corollary charge when people are engaged in other acts that indicate they are participating in planning acts of terrorism.

To lower the bar further and to risk bringing legitimate activity under the criminal law compounds an error that, frankly, already exists under the UK’s current criminal regime. That error would be massively compounded by the Bill, which would make an offence of acts that are not themselves crimes or terrorism—there is no sense in which viewing or even downloading something is actually terrorism, according to the definition in the Terrorism Act 2000. They are acts that, in certain circumstances, can be associated with terrorism. We have already taken quite a few baby steps along the road of turning acts that might legitimately lead law enforcement to suspect that a person is preparing terrorism into criminal acts themselves. This takes another dramatic step in the wrong direction and, along the way, creates the risks we have discussed.

Order. This is very engaging, but I have loads of Members who are trying to get in, so I am going to have to ask that answers be quite concise. I am also conscious that there are two other members of our panel who have given of their time today. The Minister and the shadow Minister now also want to come in, and I do not want to miss them out either.

Q I want to ask all of you the same question I asked Max Hill about the detention powers in schedule 3, which obviously replicates powers in schedule 7 to the 2000 Act. There is obviously a balance between operating effectively and ensuring it is done fairly and appropriately, with compensation and so on. Where do you sit on the detention powers and how they are applied?

Peter Carter: I agree with Max. I think there ought to be a reasonable grounds test. There are a large number of detailed preservations of rights and protections, which are entirely appropriate, but they are rather undermined by the non-existence of a reasonable grounds test, because it is very difficult to challenge it if there is no reasonable grounds test.

Q Is that the same for you?

Abigail Bright: I agree. There might well be a case for identifying exceptions to liability under the Bill, but if we are to co-exist with reasonable grounds alone, I certainly agree with Peter’s and Max Hill’s approach.

Corey Stoughton: I agree with that. I would also point out that, to create a reasonable grounds standard, you would have to amend the Bill’s current definition of hostile activity, because hostile activity as currently defined is not linked to any particular crime. It is any action that could arguably negatively affect the interests of the nation. On the face of it, that could include a businessman engaged in a trade deal that is to the detriment of the UK economy, or a businessman striking a deal that would not help UK businesses. I do not think that is what the power was meant to get at, but that is the way it is drafted. It needs to be amended to link it to criminal activity, and there must also be a reasonable grounds standard.

Q Can I ask the witness from Liberty how you would amend clause 3?

Corey Stoughton: I would stamp it out. I do not think there is a way to amend that provision in a way that would not end up simply reducing it to what is already covered by existing criminal offences. There is no ground between what is already criminal and would therefore be unnecessary, and what goes too far.

Q This may be a little rhetorical. I remember, not exactly, it has to be said, with unalloyed pleasure, the very long debate that we had on the Investigatory Powers Bill—Mr Newlands and Mr Warman will also remember this—about the distinction between a journalist and a citizen journalist. It might just be my impression, but there always seems to be a disconnect between realpolitik and the outlook of Liberty. When was the last time that Liberty demonstrated either an appreciation or an understanding of the need for, or indeed a welcome of, any proposed legislation to deal with the significant and frightening threat that this country faces from those who wish us ill, both within it and outside it?

Corey Stoughton: Let me affirm that Liberty takes very seriously the Government’s responsibility and obligation to protect all of us from terrorist attacks, which threaten the fundamental right to life. There are many provisions in the Bill that we have no objection to whatsoever. However, I also point out that our opposition to this is not radical or extreme—we are joined by the independent reviewer of terrorism legislation and the eminent counsel sitting next to me—so I do not think there is any cause to point out that our criticisms of the Bill are radical or not in keeping with what a, frankly, rational lawyer would think when looking at the provisions proposed.

Q Can I ask all three of you the same questions, to hear your views? First, to Liberty, as it stands section 58 of the Terrorism Act 2000 basically hinges on the collecting or downloading of material. Is it your view that that, too, should be struck out?

Corey Stoughton: Liberty opposed the introduction of that offence. We certainly understand that this is not the time or place to take that step.

It is either a principle or it is not. You either think it is wrong or it is not. Would you venture that section 58 is not needed?

Corey Stoughton: We would, yes.

Q So downloading terrorist content and manuals on how to make a bomb and all that sort of stuff should not be an offence?

Corey Stoughton: Downloading terrorist manuals on how to make a bomb is already criminalised under the collection of material that would be useful for the purposes of terrorism, which is already an offence under terrorism legislation. Those things would be illegal.

That is training. What about downloading ISIS or al-Qaeda propaganda materials?

Corey Stoughton: Liberty’s position is that merely looking at that material should not be an offence. It may well be reasonable grounds to further investigate whether a person is planning to engage in terrorist activity.

Q On the broader issue of biometric data, the Government have responded to the Biometrics Commissioner’s recommendations. I hear the points about there not being enough safeguards and there being other issues previously. Does that mean that two years is too much already?

Corey Stoughton: I have to think about that a little bit more. It has been a while since we engaged with that provision of the Bill. At this stage, there are obviously occasions on which the retention of biometric data is appropriate, but I think it is clear enough to say that, for the purposes of the Bill, expanding that power, when there are already existing concerns over the way similar powers are being used, is not the right way forward. We need to clean up the system that currently exists and ensure that the important safeguards that currently exist in the system are maintained or, if not perfectly maintained, at least substituted with safeguards that continue to ensure that those powers are exercised wisely and consistent with human rights laws.

Peter Carter: Can I deal with clause 3 and the amendment to section 58? Section 58 of the 2000 Act deals with the collection of information that can then be used, or is likely to be used or of benefit, for an act of terrorism. Simply looking at something is not a predicate act to providing that information for a terrorist purpose. It would be better to make a distinction between the act of simply looking and the act of deliberately retaining something with the potential intention or purpose of it being used or passed on to somebody else.

I therefore think that clause 3 and its amendment of section 58 add a new and undesirable dimension to section 58. It is undesirable because it expands the ambit of the offence in an unnecessary way. By adding something extra, we are making the life of the counter-terrorism command, and the life of judges who have to direct juries, more difficult. In this area of law, simplicity is very desirable, and this is over-complex.

Q First, the head of counter-terrorism would not have agreed with that. If you heard his evidence this morning, I think he welcomed the ability to deal with the streaming challenge. Secondly, on its own, as a stand-alone, section 58 is an offence—simply to collect material—and it does not necessarily have to be linked. Obviously you can deploy a reasonable excuse. My question to other witnesses has been: it may be that people do not like the three clicks and that sort of route, but if we were simply to amend section 58 to add in “he collects, makes or streams”, would that not achieve the same issue? There would still be reasonable excuse as a defence.

Peter Carter: I think “collecting”—our making a record—is different from accessing. There is perfect justification for having an amendment that accepts the new changes in technology, and that is necessary. But if it is going to be purely accessing, you need a contingent intention: in other words, you are doing it for the purpose of an act preparatory to terrorism, or intending to use it for terrorism or to make it available for terrorism. Simply accessing is too remote.

Q Would that not already exist? If I were to bring a charge under the existing section 58, and I proved that you had downloaded lots of things but you had not done anything with them, it is likely that a prosecutor would not prosecute. I do not think there has been a case in that environment. So as the offence stands at the moment you have to do more with it than just effectively download it.

Peter Carter: But you are extending an offence which is at the periphery of what is certain—how it is connected, certainly, to a potential act of criminality. In order to protect the right of people, whether they be journalists, academics or those doing research, as Max Hill said, you should not have people facing a risk of needing to raise a defence, having been arrested, charged and had their life interrupted for however long it takes before they can put that before the jury.

Q There are hundreds of examples of academics and journalists downloading some of this data, and they have not been prosecuted. There is no evidence of a chilling effect on existing journalists under the existing section 58. There is no evidence that prosecutors have been abusing their discretion to bring charges—or, indeed, that the judiciary has successfully allowed a prosecution.

Peter Carter: That is because, as I say, section 58 as it exists has, as its apparent purpose, an element of an activity predicate to a potential terrorist offence. There is nothing to stop the security services from tracing and tracking people who simply access the material. The question is whether you transform that material, available to the security services to keep an eye on people, to make it a specific criminal offence. You should not transform one to the other.

Q I just want to explore reasonable grounds in the schedule. How focused is reasonable grounds in the law that currently governs stop-and-search? Is it very specific to an individual? Is it currently able to be used in a broader environment where you simply have an indication that a knife is about to be used in an area? In other words, how elastic is that concept?

Peter Carter: It is elastic: it depends on the circumstances. It may be that, depending on the nature of the intelligence available to the officer—the person doing the stop-and-search—it needs to be specific if there is a person of a particular description, but it may be that the nature of the threat is so serious and the information about the individual so amorphous that it is perfectly justifiable to stop a large number of people in a specific area.

Q If I had intelligence that we suspected that a hostile state would move some radioactive material via a passenger on an aeroplane into this country over the next six months, would that be too broad to target flights from a certain part of the world? For reasonable grounds to be satisfied, would that need to be narrower?

Peter Carter: I am not going to say that it would not be satisfied in certain circumstances; I have prosecuted lots of drug trafficking cases where the customs officers have had intelligence of that nature. That has then been refined, which meant that they could focus on a finite number of planes or ships, but they have had to do covert surveillance on a potentially large number of persons and transits. If that transforms itself into focusing down on to, “Right, this is an individual on this flight or on this ship who satisfies what we think our refined intelligence is,” then yes, it can be quite a few people.

Q But it may not get that narrow. It may not be something you can further explore. It may simply be that you know that between June and September, there is a plan to bring something—a radioactive material—into this country, and that is what I, as the Security Minister, will have to take a defence against.

Peter Carter: I would suggest that it is a question of proportionality. If the threat is extreme, I would not want to say that your hands are tied.

Q But would not using reasonable grounds or grounds of suspicion be doing that?

Peter Carter: You would do, because if you were able to identify that it was coming from a particular place and was of a particular kind, in reality, you would not search everything and everyone. As I say, it is a question of proportionality. If there was a really major threat to the security of this nation, I would hope that appropriate powers would be available to ensure that it never came to pass. If that meant an extensive number of searches, that would be proportionate and reasonable.

Q Looking at the powers of detention at the border, I see that there is no access to a solicitor for an hour, and there is a power for someone to have to speak to their solicitor within the hearing of an officer. Does that concern you?

Abigail Bright: The first part certainly does—having no access to a lawyer, on the face of it for no good reason. If there is a good reason, of course that will present itself—it will be case-specific or fact-specific—but I do not see why the hands of law enforcement officers should be tied to one hour, or why the rights of a suspect, who is potentially an accused person, should be diminished with reference to that. That would be my observation about that first part.

Peter Carter: I agree.

Q And on the second part—about the conversation with the solicitor being in the presence of someone else?

Abigail Bright: That is deeply concerning and wholly new. “Radical” is a well-chosen word here; it is a radical departure from anything known to English law. My view, and the view of the specialist Bar associations, is that it is unnecessary and undue, and that it would not in any way be a serious improvement on the powers available to law enforcement agents. It is makeweight, and I would submit that it is just a gloss.

Peter Carter: At the moment, existing laws allow a police officer, a superintendent, to require an interview to take place in the sight of an officer. That is appropriate. Sometimes it is a protection to lawyers, if there are reasonable grounds to suspect that the person being interviewed might try to pass something, damage the lawyer concerned, hold them hostage or something. Those are existing powers used in exceptional circumstances that are always diligently reviewed ex post facto.

Q But “in the sight of” is different from “in the hearing of”.

Peter Carter: “In the hearing of” means that private, privileged communication is effectively frustrated, and that is very worrying.

Q I wanted to raise this when we were debating the three clicks issue, but it seems to me that there are parallels between viewing terror material and viewing child pornography content. I am keen to understand your positions on the issue of establishing a pattern of behaviour and when is an appropriate time to prosecute somebody for viewing material.

Does Liberty believe that you should never be prosecuted simply for viewing material? Or are you arguing that, in the case of terror, viewing the material is not sufficiently serious, in comparison with something such as child pornography, that you should be able to convict somebody for it?

Corey Stoughton: Child pornography is a different case, because it is inherently criminal. The harm is done in the viewing and in the production of those—

Q So a beheading would not be considered the same?

Corey Stoughton: Extremist content is what the current provision would cover. Extremist content is not inherently harmful in the same way as child pornography is. For example, there may be a range of legitimate reasons for a range of people to engage in viewing extremist content, whether because you knew that a student of yours in your secondary school had viewed it, or your child had viewed it, and you wanted to understand what they were looking at, or for journalistic and academic activity, which we have covered.

Child pornography really is in a class by itself, because the harm in the creation and the viewing of it is so unique and different that it is appropriate for it to be criminalised in that way. Extremist content, although quite serious—I do not mean to diminish the seriousness of the problem of the proliferation of extremist content and the challenges it legitimately poses to law enforcement —is of a different kind from child pornography for that reason.

Q I just wanted to clarify: terrorism content or extremist content?

Corey Stoughton: I am not sure I know what the difference is.

Q Inspire, a magazine written by al-Qaeda and promoted around the internet, or an ISIL document? Are those terrorist? I would say it is created by terrorists for spreading terrorist theology and hate.

Corey Stoughton: Would I still distinguish that from child pornography? Yes.

Q No, would you say that was terrorist content or extremism content?

Corey Stoughton: I do not know. Part of the problem with these laws is that the terms are fluid and not very well defined. What one person might consider extremist content another person might not consider extremist.

Q So a magazine written by al-Qaeda, claiming to be by al-Qaeda, which gives a theology about kufr and attacking everyone else, is inherently a terrorist publication?

Corey Stoughton: Sure. I would agree with that, absolutely.

Q I understand the issue about extremism content, but when it comes to terrorist content, surely there is a crossover to the paedophile streaming and viewing?

Corey Stoughton: I still think there is quite an important distinction to be drawn from that, because no child is harmed in the creation. If a child was harmed and it was child pornography, obviously it would be different.

You should just watch them; you will see people being executed in the background. I would guess that is harm.

If there is a moment left, I will come back, but I am conscious that Dr Huq would like to ask a question before we run out of time.

Q This morning, as you were saying, I asked the two panels about clause 3 and the potential for criminalising thought without action. I raised a case that was quite high profile at the time, and nobody from the two panels this morning had heard of them.

I wanted to ask you about, first, the issue of thought without action and secondly, the difference between lone wolves and proscribed organisations. The case I wanted to raise was the first ever person convicted under the Terrorism Act, in 2007, the 23-year-old “lyrical terrorist”—the person writing extremist poetry about beheading people. That resulted in an Old Bailey conviction that was later overturned by the Court of Appeal. What are your thoughts on that and this Bill? How would they apply? Have you heard of that case? Nobody this morning had, and I was surprised by that.

Peter Carter: No, I am afraid I have not. It was not one I acted in.

It was all over the news at the time in 2007 and it was overturned in 2008.

Peter Carter: The difficulty with section 58 is that it is not about terrorist material; it is about

“information of a kind likely to be useful to a person committing or preparing an act of terrorism”.

If it was about terrorist material, as identified by the Minister, I think there would be very little problem with it.

The difficulty of extending the definition of “material” in section 58 of the 2000 Act, as this clause does, is to take it into thought. We are at risk of getting close to a heresy idea. It would be trying to stop what is genuine interest in political issues of extremism and people being able to inform themselves about extremism in order to engage with the debate and to defeat these views. Unless we engage in a debate with those views, we will not defeat them. There has to be a capacity for ordinary people to be able to understand what extremism is and why these views are so dangerous that we must engage with them and overcome them.

Q Was Liberty involved in the 2007-08 case?

Corey Stoughton: I am sorry to say that I am not sure, because I am also unfamiliar with the case.

Q I have another short question. Are the three of you aware of the Prevent programme having lost the confidence of certain communities? Do you have any comments on that?

Peter Carter: I was involved in training the counter-terrorism command when the Prevent policy started. I was an enthusiastic supporter of it, because it was subtle and very effective. It has gone slightly off track and lost the support of some communities. That is a great shame, because it really needs to be supported.

I shared a panel recently at the Law Society with the Metropolitan Police Commissioner; I am glad to say that she and I agreed about just about everything. One of those things was the importance of the Prevent strategy and of getting back the confidence of the communities, because their engagement in it is vital. As a concept, it is a vital part of fighting terrorism.

Abigail Bright: A very specific part of the community is the family doctor—the general practitioners. One only needs to look at The BMJ to see the concern expressed by medical practitioners about the Prevent programme. In principle, there is no resistance to it among the medical fraternity, but how it is executed and how it risks trespassing on medical confidentiality and trust between doctor and patient is a very discrete part of how it is problematic in the community.

GPs are not covered by the Prevent duty.

Abigail Bright: On another view, much training of general practitioners goes into how to deal with Prevent.

Q I think we have covered a fairly wide area. I want to go back to biometrics, because we missed out on that answer previously. Ms Bright and Mr Carter, do you think it is justifiable to retain biometrics information for five years, without oversight by a Biometrics Commissioner of those people who are not charged, whose charges are dropped or who are found innocent? Do you think that is of any use to the police and the security services?

Peter Carter: I am afraid I am going to disagree slightly with Liberty on this one. It is a bit like personal data: it needs to be constantly reviewed. There needs to be a finite term to begin with; then if necessary, continued retention needs to be justified. I do not think there should be an automatic prohibition on the retention of data by those who are not prosecuted, because it might well be that a person is diverted from prosecution even though there is very good reason and very strong evidence that they did actually have the material and were on the verge of getting involved with terrorist activity. In those kinds of cases, it is justified to retain the material. I think it is a question of proportionality—two years to begin with, with the possibility of extending it to five or further, if there is justification.

Abigail Bright: From the specialist Bar associations, I would add two things. First, the Bill incorporates a review by the Investigatory Powers Commissioner. That is very welcome and it is a good part of the Bill as drafted. As the Committee knows, the commissioner is to have two functions: to monitor and to keep under review the operation of provisions of the Act, and after that to report as a long backstop every calendar year. Within that, the commissioner has the power to report to the Secretary of State as and when the commissioner thinks appropriate much before a year.

Order. I am afraid that brings us to the end of the allotted time for the Committee to ask questions. I thank Ms Stoughton, Ms Bright and Mr Carter for the evidence they have given the Committee.

The Chair adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till Thursday 28 June at half-past Eleven o’clock.

Written evidence reported to the House

CTB 01 Index on Censorship