In any area of law designed to deal with threats to national security, the concern is that for the state ‘the gloves come off and seemingly anything goes’ – the rights and liberties of individuals may be compromised for the so-called greater good. Anti-terrorism legislation is no different in this regard. This article aims to examine whether the UK anti-terrorism regime can be justified. This will first be analysed in light of criminal law principles, and then placed in the practical context of prevention. The conclusion reached is that rather than truly prevent, the regime results in over-criminalization and disproportionate targeting of minorities.
Principles of Criminal Law
Harm Principle
Although the harm principle dictates that conduct that causes harm generally justify criminalization (Simester, 2012), it is worth noting that the harms addressed by the separate regime of terrorism offences are not novel, rendering the UK anti-terrorism regime unjustifiable. It is clear that the existing laws would cover complete terrorist attacks (e.g. murder, arson, etc.), as well as incomplete attacks falling within the remit of inchoate offences (conspiracy, attempt, etc.). This suggests that specific offences are unnecessary – duplicity in law simply increases uncertainty. Although it may beargued that the separate regime is justified due to the particularly reprehensible nature of the offender’s wrongdoing, this is argument is a weak one – practice shows that prosecution of carried-out terrorist acts does not usually take place under the specific counter-terrorism legislation. (Coady, 2013).
While it is common for inchoate conduct to be criminalised before the actual harm is caused, we should insist on some limits, so as to not over-criminalize under the guise of prevention (Simester, 2012). Terrorism offences form such ‘perversions’ – they impose an unreasonable burden on those subject to them, and encompass conduct that even when carried out cannot warrant public condemnation (Duff, 2010). A good example is s.57 of the TA 2000, criminalizing the possession of an article ‘in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism’. The scope of it is extremely broad; in certain contexts people should be wary of possessing even a phone or a map of the London tube. The conduct is not here ‘a step away’ from causing harm, but strongly dependent on a subsequent series of actions. The causative link is based merely on intentions, suggesting these precursor offences stretch the harm principle far out of its bounds.
Principle of Legality
Principle of legality states that the law should be clear, ascertainable and non-retrospective (Husak, 2008). However, rather than provide guidance, the specific terrorism offences result in great uncertainty and leave substantial discretion in the hands of state agents.
The main offence falling foul of legality is s.5 of TA 2006: a person commits an offence if, with the intention of either committing an act of terrorism or assisting in doing so, ‘he engages in any conduct in preparation for giving effect to his intention’. As a guilty verdict can here be grounded in the actor’s intention, it is clearly an overly expansive offence that verges on the criminalisation of bad intentions (Simon & Zedner, 2018). The rationale behind criminalizing conduct which is so far removed from the actual harm is to eliminate time for reflection and thus to ‘deny the individual agency in such a way as to designate the actor rather than the act as blameworthy’ (Ramsay, 2011). Preparatory offences therefore eliminate the locus poenitentiae – they do not allow for the opportunity to choose whether or not to commit a substantive wrong. Since almost any every-day activity may fall into the remit of this offence, it falls far below the certainty expected of criminal law. In practice, police and prosecution may use their discretion to mitigate this ill-effect. Such discretionary scope is nevertheless concerning as it carries numerous dangers of misuse, opening up way to authoritarianism, arbitrariness, inequality, discrimination and oppression of unpopular minorities (Dennis, 2012).
Similarly problematic are possession offences – for example, s.58(1)(c) TA 2000 makes it an offence to ‘view, or otherwise access by means of the internet a document or record containing information of the kind likely to be useful to a person committing or preparing an act of terrorism’. Offences such as this undermine legitimacy of this regime – they lack a clear conduct requirement as they can criminalise merely a state of affairs. Moreover, they usually are strict liability offences with a reversed burden of proof, and therefore are likely to offend against the presumption of innocence (Simon & Zedner, 2018). This has led to outrageous cases of trivial acts being punished, through which the commitment to terrorism (the element that renders one a risk to society) is hardly shown (Tadros, 2008). For example, in G v R, the mentally-ill defendant was convinced that his prison-guards were plotting against him, and purposefully collected information of terrorist nature with the aim of scaring them. He did not at any point intend to do anything with that information other than ensure his safety from the guards by making himself appear dangerous – yet he was found guilty under s.58 TA 2000 (G v R [2008] EWCA Crim 922). It is doubtful whether any risk was being incapacitated in this case.
Principle of Fair Labelling
Fair labelling ensures that the censure attaching to conviction and the punitive response that follows are proportionate to the wrong done (Ashworth, 2006). The often-used argument for specific terrorism offences is that only by labelling wrongdoing as terrorism is there sufficient reflection of ‘public revulsion’ at a particularly unpleasant offence. However, the principles of harm and legality have already questioned the actual harm these offences address. It is doubtful whether public revulsion is directed at such remote acts, and therefore whether there is much to reflect through censure. Moreover, in instances of serious harm the law could adopt a terrorism’ intensifier’ for existing offences, similar to the racial intensifiers used to aggravate punishment in hate crimes.
Fair labelling shows that not only is the harm in specific offences remote, but the censure imposed is extortionate. A good example is the aforementioned s.5 TA 2006, punishable with life imprisonment. The sentencing guidelines here are draconian and arguably start from the wrong end of the spectrum (Sentencing Council, 2018). Rather than beginning at a low sentencing threshold – which would recognise that no actual harm was caused – and aggravating it depending on the nature of the potential harm, the TA 2006 imposes high sentences, leaving the question of reduction open. The only way this forms appropriate censure and punitive response for the conduct is if the risk of the remote harm is particularly high in practice. However, as this article will explore below, there is no evidence to support this.
The Prevention-Security Rationale
Legitimacy could potentially be restored to this legislation through an overwhelming policy rationale. The nature of these offences is indicative of the state’s commitment to a preventive, rather than punitive, concept of justice (Ashworth & Zedner, 2014). The principles traditionally governing criminal law could therefore be understood as limiting the state in the fulfilment of its duty to protect its citizens. This is not to say that principles of legality and fair labelling are without importance; rather, they are predicated on the assumption that offenders are autonomous rational agents who may be deterred by the threat of censure and punishment (Ashworth & Zedner, 2014). The willingness of terrorists to die for their goals (e.g. suicide bombing) calls this assumption into question. Remote conduct in precursor offences is targeted not because it is worthy of punishment, but to prevent grave suffering from ever taking place. This would also explain why in practice it is the offences targeting early preparatory action that are used most often, whilst cases of tangentialterrorist acts are prosecuted under standard criminal legislation.
However, before we test the success of such preventive laws in practice, we should note the false dichotomy underlying this rationale. There is something untoward in holding that the security of the individual defendant is in conflict with the collective security of citizens, when the interests of the defendant are the interests of everyone else (Zedner, 2016). Zedner cautions that the narrative introduced by the state - whereby it employs the demand for public protection as a powerful lever with which to demand new police powers, more extensive criminal laws, and radical curtailments to the criminal process and trial - has significantly threatened our individual security and compromised human rights. By endorsing the surrender of an individual’s security on trial for a terrorism offence, socjety is setting a dangerous precedent for eroding that security more generally. The law applies to all – it might seem that the security given up is of an imaginary deviant; however, ultimately it is the collective security from the state that is being jeopardized.
Unsuccessful Prevention in Practice
With terrorism viewed as a huge risk to society, democratic politics have a tendency to react to any new crisis by passing a new law. Such a law might be a good one, but Coady notes it often isn’t, since its primary purpose is to assure the public that the political leadership is handling the problem (Coady, 2013). As new anti-terrorism laws are usually passed in a hurry, they are unlikely to be on par with the traditional criminal law standards. The new law’s weakness is further exploited by police and security agencies, who are likely to stretch the interpretation of the legislation when administering the law. The threat posed by preparation for terrorism acts in particular should have been critically reassessed once the initial attitude of panic had passed.
It may be that the specific offences are justified in principle as they ensure security for citizens from the catastrophic harm of a terrorist attack. However, as argued by Dennis, a democratic polity cannot use security as ‘a comprehensive justification for whatever liberty-limiting measures it deems appropriate’ (Dennis, 2012). We should be especially wary of preventive rationales considering the scarcity of empirical evidence proving that criminalizing conduct so far removed from the actual harm has any deterrent effect at all. Although the deadliest terrorist attack in the UK remain to date the 7/7 London bombings, with 52 fatal victims, other acts of terrorism continue to take place. It is particularly difficult to find a relation between their number and the preventive offences. More straightforward than deterrence is how the legislation provides terrorist organisations with a further recruiting tool (Tadros, 2008). Those who enter a correctional facility for many years on the basis of e.g. viewing a terrorist website may not have been particularly inclined to pursue such actions, but leave those institutions much more radicalized than before. This seems to have been the case with the 2019 London Bridge stabbing: the attacker, sentenced to life at 19 for (unrealistic) plans of setting up a training facility in Kashmir, was released after serving 16 years and his subsequent actions – the killing of 2 people – suggest he became more radicalised. (Pantucci, 2020). This shows how disproportionate censure is likely to aggravate the distant intentions these individuals possessed in the first place. It therefore seems that we are giving up certainty of the law for an effect we have no proof of achieving in practice.
Moreover, it is questionable whose security we are enhancing in practice. Due to the wide scope and amount of discretion being left to the police and prosecution, the offences would contribute to the erosion of security of a relatively insecure minority. The threat of criminal liability can become as much a threat to the security of some, as the harms they are designed to safe-guard against (Simester, 2012). Tadros demonstrates that excessively flexible laws will inevitably lead to a high risk of unjust convictions, police intrusions and prosecutions (Tadros, 2008). Therefore, even if security is maximised overall, it will be unevenly distributed. Those most likely to be targeted by the legislation are Muslim men. The law therefore leaves at a disadvantage a community that already faces a high risk of being the victim of further injustices, such as racial or religious discrimination.
Alternative approaches?
Since the specific offences cannot be justified neither in principle, nor in practice, it is sensible to ask whether they are the most adequate tool for prevention. Perhaps in cases of harm so far removed, non-criminal methods are more beneficial when implemented; after all, criminal law is only one means by which we can pursue security. The offences therefore have to be considered in the wider spectrum of the overall counter-terrorism strategy.
A different solution is provided through a civil-criminal hybrid measure – Terrorism Prevention and Investigation Measures (TPIMs), which impose restrictions on everyday activities of those deemed to pose a national security risk. Their purpose is to impede the planning and execution of terrorist plots by those subject to them (Ashworth & Zedner, 2014). These are also problematic, however, as they impose significant restrictions on liberty without the procedural safeguards provided by the criminal process, notwithstanding the potential for criminal sanction on breach. Their infrequent usage also suggests they are not considered as a particularly effective substitute for criminal trial (Fenwick, 2017).
Another alternative is the government’s CONTEST strategy. Criminal prosecution is merely one of its arms (Pursue); equally important is the ‘Prevent’ arm (countering terrorist ideology and preventing radicalization). It is not currently used to its full potential due to the overlap between the two responses - the very breadth of specific terrorism offences means ‘they occupy the same operational space as ‘soft’ measures under the Prevent strategy’ (Simon, 2015). Where people are encouraged to come forward, the reality is that their conduct may already constitute a criminal offence -the risk of prosecution likely deters them from seeking help (Simon, 2015). It seems that a clearer delineation between prevention and prosecution is needed, under which those whose conduct is so far removed from the harm will first get an opportunity at ‘de-indoctrination’, rather than being condemned for life. Modern terrorism will only ‘be defeated by addressing the political and social issues’ that underlie it (Reid, 2006). Legal reform in this area could potentially bring better preventive results than the specific offences currently do.
Conclusion
The specific terrorism offences cannot be justified, neither in principle nor in practice. Not only does their uncertain scope and disproportionate censure make them fall foul of the main criminal law principles, but their preventive rationale – which could theoretically legitimize such departure - has a fault in its reasoning, especially when it is appreciated that the preventive aims are not being realised in practice. The state should not be allowed such illegitimate pursuits in law-creation. Whilst terrorism is an incredibly grave harm which should be prevented, this should not be done at the cost of our democracy self-sabotaging itself – instead, non-criminal methods should be prioritized where possible to eliminate the threat at its roots.
A piece by Julia Łaganowska
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