The Luton Council of Mosques (LCM) and Sunni Council of Mosques (SCM) in Luton, Bedfordshire represent the majority of mosques in Luton.
The Counter Terrorism and Border Security Bill 2017/19 (CTS Bill) is currently making its passage through the House of Lords and is due to be considered at the Report Stage on 3 rd December 2018.
Having considered the proposed CTS Bill, we are concerned at its potential impact on Civil Liberties and Human Rights. Our concerns are shared by the Joint Committee on Human Rights (JCHR) as well as the well-established human rights advocacy group Liberty.
In considering Liberty’s response to the proposed CTS bill we are in support of their position, in particular:
Criminalisation of expression or inquiry – Clause 1 of the CTS Bill
Not only does the proposed provision extend criminal law to cover mere expression but it also lowers the threshold for what amounts to criminality by removing the requirement of ‘intent’ and replacing it with ‘recklessness.’
‘Recklessness’ is not an appropriate legal test for speech crime. In 2006 the JCHR concluded that:
“… recklessness is normally applied to actions that are themselves within the realm of criminality…if you hit someone or deceive them…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. It is the means by which proper criminal responsibility can be determined.”
Further, removing the requirement of ‘intent’ creates ambiguity as to precisely what type of speech would constitute as an unlawful expression of support and therefore criminal. The danger this creates, as highlighted by the JCHR, is that in its current draft “…this could have a chilling effect, for instance, on academic debate during which participants speak in favour of the de-proscription of proscribed organisations…violates Article 10 of the ECHR.”
Article 10 of the ECHR (European Convention on Human Rights) stands for Freedom of Expression.
The criminal law already addresses those who provide support for terrorism or proscribed organisations, what therefore is the justification for criminalising mere expression which does not and is not intended to further the cause of terrorists?
Publication of Images – Clause 2 of the CTS Bill
The Government wishes the new offence to cover photographs taken in a private place. Currently the law already makes it an offence to wear clothes or display an article likely to arouse suspicion of membership of a proscribed group.
The proposed amendment allows the state to judge behaviour which takes place in privacy and does not, nor intended to, incite criminality. It increases the risk that law enforcement officials could mistake the meaning of a photograph, mistake a ‘reference’ for ‘endorsement’, mistake ‘irony’ for ‘sincerity’ and mistake ‘childish misdirection’ for a genuine threat.
The ‘publication’ aspect of this new offence creates a risk of criminality for journalists, archivists and researchers.
Even the Independent Reviewer of Terrorism Legislation has expressed concerns about “..what clause 2 unamended says about those who seek to display historical images of individuals working for organisation that were proscribed years ago where it is a matter of historical recording and nothing more…given the lack of clarity as to what would be caught by this offence and the potentially very wide reach of clause 2, it risks disproportionate interference with Article 10.”
The new clause 2 does not require an individual to be a member of a proscribed organisation, to support it or intend to encourage others. All that is needed is that the circumstances of the publication should “arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation.”
Viewing material over the internet – Clause 3 of the CTS Bill
It is already a criminal offence to download information which could be useful for terrorism.
The original clause 3 draft of the CTS Bill would have criminalised people who use the internet to view a document or record “on 3 or more different occasions” that is likely to be useful to a person preparing or committing an act of terrorism.
The Government has now replaced the “3 clicks” requirement with “1 click!”
As stated by Liberty:
“A teenager who foolishly clicks on terrorist propaganda out of curiosity, an academic who accesses an issue of Inspire in the course of their research, a journalist who watches an ISIS-uploaded video to geolocate war crimes would all potentially be caught by this offence. So would an activist who trawls forums to monitor far-right organisations or an imam who listens to a broadcast to a proscribed group to better understand and rebut claims they make. Important activities such as scholarship, journalistic pursuit, non-violent political activism and religious inquiry are all at risk of being chilled by this offence…”
Travel to a ‘designated area’ – Clause 4 of the CTS Bill
Clause 4 creates a new offence of entering or remaining in a designated area overseas. The offence risks criminalising vulnerable people who are groomed or otherwise convinced to travel under false pretences as well as people who are unable to leave an area once it has been ‘designated’, or those travelling to do aid work or see family.
Simply because someone is travelling to a volatile or dangerous overseas location does not necessarily mean they are involved in acts of terrorism and risks criminalising those who travel to such areas without any criminal intentions, without any justification for the necessity of such a clause.
There are already concerns of abuses of retention of information in relation to the National Police Database. To now extend it to retention of those arrested for, but not charged with, a terrorism offence or terrorism-related offence is concerning and potentially in breach of an individual’s right to privacy under Article 8 of the ECHR.
At the Committee stage the Government referred to Prevent ‘Horror Stories’ as ‘myths’, ignoring previous concerns raised by organisations like ours as well as the Independent Reviewer of Terrorism Legislation himself, the Home Affairs Select Committee, the JCHR, the UN Special Rapporteur, academics, the National Union of Teachers, the National Union of Students, as well as concerns raised in the House of Lords by Conservative, Labour and Liberal Democrat Members of Parliament and other Muslim groups and organisations.
Is it really the case that none of these groups have real and proper cause for concern in respect of Prevent?
With regard to ‘myths’, in Luton we have seen first-hand examples of Prevent in action which have caused concern, such as the Palestinian band case and the ‘Cooker-Bomb’ case.
The ‘toy-gun’ case was represented by Liberty and resulted in an admission of wrongdoing by the local authority, including wrongdoing of discrimination of children on the basis of their race and perceived religion, and an apology for their conduct. If this is not a serious true horror story, then what is? Where is the ‘myth’?
The Home Office has not published data necessary to establish whether Prevent is disproportionately impacting those of certain ethnicities and faiths, despite calls to do so.
Clause 19 of the proposed CTS Bill extends the Prevent strategy by now allowing local authorities as well as police to refer individuals to Channel panels. In light of the horror stories seen so far this new extension is nothing less than a recipe for disaster.
This is an opportunity now to review independently the effectiveness of Prevent and to get rid of it if possible to safeguard communities.
Schedule 7 of the Terrorism Act 200 – Schedule 3 of the CTS Bill
Rather than to insert a safeguard of having a ‘reasonable suspicion’ requirement when making Schedule 7 stops at airports and borders/ports, the powers are now being extended beyond police officers to immigration and customs officers too!
The current regime already disproportionately impacts those of an Asian ethnicity and is unduly invasive of privacy and dangerous to journalistic and legal privilege and a violation of due process and principles of human rights and natural justice such as the right not to self-incriminate and the presumption of innocence unless proven guilty.
The Independent Reviewer of Terrorism Legislation confirms that “the number of Asians examined under Schedule 7 is disproportionately high when compared to white persons…”
Suspicion-less powers are already highly controversial. Police Stop and Search powers on the streets; you are 8 times more likely to be stopped and searched by police if you are black than if you are white, however, this is on suspicion based Stop and Search powers. Under suspicion-less powers, black people are 14 times more likely.
Such powers should only be available, if at all, where there are reasonable grounds for suspecting criminality.
The new Schedule 3 is worse than the current Schedule 7 in that it covers a vast range of behaviours categorised as ‘hostile activity.’
‘Hostile activity’ is defined as any act which threatens national security, the economic well neing of the UK or which constitutes a serious crime. A person need not be aware of the activity they are engaged in to be caught within this. Therefore, if someone currently or in the past was involved in a business venture which may have involved a diversion of investment from the UK to a third state they could also be caught by this Schedule 3. A politician or official negotiating a trade deal with the UK government which is of financial disadvantage to the UK could also be caught in this definition.
Also of concern is that both Schedule 3 and 7 provide for a person to be allowed to be consulted with a solicitor ‘within the sight and hearing of an officer’ this interferes with a person’s right to private and confidential legal advice.
In summary, rather than to use the proposed CTS Bill to widen controversial powers which already exist, this should be used as an opportunity to tighten, clarify and reign in the powers which already exist, implementing safeguards for the protection of civil and human rights, as would be expected from a modern-day fair and just society. The law exists to keep all citizens safe and treat all members of society unequivocally equally. Therefore, when the law itself is such that it results in stigmatisation, oppression and persecution of communities this is nothing less than an injustice which flies in the face of key principles of natural justice and the rule of law.
Luton Council of Mosques
Luton Sunni Council of Mosques