The legal definition of terrorism - disappointing legal review
Those of us who were hoping that the review of the legal definition of terrorism might produce a simpler, clearer, more effective and practical definition, are disappointed:
The definition of terrorism: a report by Lord Carlile of Berriew Q.C. Independent Reviewer of Terrorism Legislation (.pdf - 194Kb - 48 pages)
6. There is no universally accepted definition of terrorism. It remains the subject of continuing debate in international bodies.[...]
Hard as I have striven, and as many definitions as I have read, I have failed to conclude that there is one that I could regard as the paradigm.
The report has a table of comparative views of how broad the terrorism laws are in most of the countries throughout the world, which is of some interest. Many countries do not have separate terrorist offences distinct from the usual criminal offences such as murder or causing explosions etc. or they restrict the definition of terrorism to organisations rather than individuals, or to attacks on national or international state organisations.
Others, such as the UK seem to have extremely broad definitions of terrorism, e.g. USA. China , India, Ireland, Belgium etc.
Some, like Greece, have a "Statutory defence for acts aimed at establishing or
restoring democratic regimes or in the exercise of fundamental civil or political
rights", which we do not.
We are not as convinced as Lord Carlile that the consent to a prosecution by the Director of Public Prosecutions or the Attorney General for some terrorism offences is a proper safeguard which would prevent the terrorism laws being used unfairly.
The office of Attorney General is currently manifestly not immune to political influence as it should be, as can be seen from the suppression of the BAE / Saudi Arabia corruption investigation scandal, and the "cash for honours" scandal involving Number 10 Downing street staff and confidants of the Prime Minister. When not being politically influenced, the DPP or the Attorney General seem to be far more heavily influenced by the "securocrats" rather than standing up for the freedoms and liberties of individuals falsely accused, or caught up on the periphery, of terrorist activities.
The DPP / Attorney General have given their consent to prosecution in cases involving the catch all "thought crime " Section 58 Collection of information which possibly be of some use to a terrorist, some time, and the appalling "inform on members of your family, even when they are in a foreign country and you have real idea of exactly what they might be up to " Section 38B Information about acts of terrorism
This Section 38B case: "Jury unanimously finds Parveen and Zahid Sharif not guilty" shows how the "discretion" of the Director of Public Prosecutions / Attorney General provides no real safeguards at all, once the suspicion of terrorism has fallen on you or on innocent members of your family.
There may perhaps be times when the Director of Public Prosecutions or the Attorney General tell the investigating authorities to go back and get some proper evidence, before proceeding with a terrorist offence prosecution, but these do not seem to be publicised.
Lord Carlile has not been asked to review Section 58 or Section 38B, or the controversial Section 44 stops and searches (which he does mention in his report) but there is no reason why the Opposition MPs and Peers should not demand to do so.
We are also disappointed that Lord Carlile did not give more thought to Section 1 (2) e) of the definition:
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
This language is far too broad and catch all.
There has never been any arrest, let alone a charge or prosecution or conviction for an electronic "cyber terrorist" attack.
Where there have been attacks on buildings housing computers etc, involving, say, explosives, these can be and have been prosecuted under normal criminal offences.
Lord Carlisle , however, says
71. Section 1(2)(e) deals with the design seriously to interfere with or seriously disrupt an electronic system. This has the potential to include internet service providers, financial exchanges computer systems, controls of national power and water, etc. The huge damage to the economy of the nation, and the potential for injury as a result, are self-evident.This category too should be included in the definition. I have concluded that the provision remains justified.
However this is surely an argument for restricting this sub-clause to attacks on or threats to the well defined Critical National Infrastructure, (see the newly reorganised Centre for the Protection of National Infrastructure). "Terrorism" should not apply to, say, the disruption of a multi-user online fantasy game or even to Denial of Service attacks for the purposes of financial blackmail etc. The current wording is far, far, too broad since "an electronic system" means any such system regardless.
Lord Carlile's conclusions:
86. My main conclusions are as follows:
(1) There is no single definition of terrorism that commands full international approval.
(2) The risks posed by terrorism and its nature as crime are sufficient to necessitate proportional special laws to assist prevention, disruption and detection.
(3) A definition of terrorism is useful as part of such laws.
(4) The current definition in the Terrorism Act 2000 is consistent with international comparators and treaties, and is useful and broadly fit for purpose, subject to some alteration.
(5) Idiosyncratic terrorism imitators should generally be dealt with under non-terrorism criminal law.
(6) The discretion vested in the authorities to use or not to use the special laws is a real and significant element of protection against abuse of rights.
(7) The exercise of such discretion requires especial care by those in whom the discretion is vested.
(8) New sentencing powers should be introduced to enable an additional sentence for ordinary criminal offences, if aggravated by the intention to facilitate or assist a terrorist, a terrorist group or a terrorist purpose.
(9) Offences against property should continue to fall within the definition of terrorist acts.
(10) Religious causes should continue to fall within the definition of terrorist designs.
(11) The existing law should be amended so that actions cease to fall within the definition of terrorism if intended only to influence the target audience; for terrorism to arise there should be the intention to intimidate the target audience.
(12) The existing definition should be amended to ensure that it is clear from the statutory language that terrorism motivated by a racial or ethnic cause is included.
(13) Extra-territoriality should remain within the definition in accordance with international obligations.
(14) A specific statutory defence of support for a just cause is not practicable.
(15) A new statutory obligation should require that the exercise of the discretion to use special counter-terrorism laws in relation to extraterritorial matters should be subject to the approval of the Attorney- General having regard to (a) the nature of the action or the threat of action under investigation, (b) the target of the action or threat, and (c) international legal obligations.
(16) The law should not be amended to enable the use in the United Kingdom of the special laws against persons subject to diplomatic immunity.
Presumably the Labour politicians and the securocrats in the civil service will continue to grind out even more complicated "must be seen to be doing something" anti-terrorism legislation, as a substitute for effective policies, and will carry on regardless of this report by Lord Carlile.
Comments
>> Some, like Greece, have a "Statutory defence for acts aimed at establishing or
restoring democratic regimes or in the exercise of fundamental civil or political
rights", which we do not.
That possibly goes some way to explaining why anarchists and students blow banks up in Athens as a regular matter of course then...
Posted by: Martin Belam | March 18, 2007 8:51 PM
@ Martin - do they really manage to successfully invoke this statutory defence in such cases, where there has been actual violence in Greece, rather than overseas ?
It is more likely to help to explain the presence in Athens of organisations like the PLO and other "liberation" organisations for fund raising and media activities etc. unless they are under EU or UN financial sanctions.
Posted by: wtwu | March 19, 2007 8:08 AM
Thanks for this analysis, I had missed this publication. My reading of it is very much along the same lines as yours. I wrote a few comments at http://gizmonaut.net/blog/uk/terrorism_definition_plus_ca_change.html
The latest HO statistics would tend to show that there are serious issues not adequately addessed by this report.
br -d
Posted by: David Mery | March 20, 2007 12:26 AM
Lord Carlisle's very superficial analysis fails to notice that his own government has been guilty of terrorism according to its own defintion. By virtue of the fact that it used explosives to effect regime change in Iraq it has deemed itself to have taken action "designed to influence the government or to intimidate the public or a section of the public" - the basic definition of terrorism.
Posted by: GR | July 30, 2007 5:26 PM