Terror and the War on Dissent: Freedom of Expression in the Age of Al-Qaeda

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Terror and the War on Dissent

Ian Cram

Terror and the War on Dissent Freedom of Expression in the Age of Al-Qaeda

Prof. Ian Cram University of Leeds School of Law Leeds, LS2 9JT United Kingdom [email protected]

ISBN 978-3-642-00636-4 e-ISBN 978-3-642-00637-1 DOI: 10.1007/978-3-642-00637-1 Springer Dordrecht Heidelberg London New York Library of Congress Control Number: 2009926013 # Springer-Verlag Berlin Heidelberg 2009 This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilm or in any other way, and storage in data banks. Duplication of this publica-tion or parts thereof is permitted only under the provisions of the German Copyright Law of September 9, 1965, in its current version, and permission for use must always be obtained from Springer. Viola-tions are liable to prosecution under the German Copyright Law. The use of general descriptive names, registered names, trademarks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protec-tive laws and regulations and therefore free for general use. Cover design: WMX Design GmbH, Heidelberg, Germany Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com)

Preface

‘‘. . . in life we make progress by conflict and in mental life by argument and disputation.’’ Christopher Hitchens, Letters to a Young Contrarian (2005, Basic Books, New York) p. 20

The origins of this book may be traced back to debates in the UK Parliament in 2005 about the glorification and indirect incitement of terrorism. At the time, the legislation struck me as a rather desperate and poorly thought-through gesture on the part of the Blair Government to win over public opinion in its so called ‘war on terror’ against Islamic fundamentalism. What follows below are some more considered thoughts about what I believe to be a broader assault on dissenting forms of political expression. It is my argument that the state’s closing down of channels of political dissent detailed in a number of the chapters of this monograph, while hardly unprecedented in our history, impacts adversely on our polity’s claim to be a robust liberal democracy. The vital task, I suggest, is to revitalize the constitutional capacity for dissent. We need thus to be sceptical about the claims of governments that the criminalization of pro-Al Qaeda expression is essential for the safeguarding of our democracy. Intelligent governments rooted more firmly in a secure tradition of liberal constitutionalism tolerate a very broad range of dissenting opinion if only the better to understand the nature of specific grievances. A number of factors came together to allow this book to be written. At the outset, I would like to acknowledge the grant of study leave by the School of Law, Leeds University, in the first half of 2008. The relief from teaching and marking duties enabled substantial progress to be made on the manuscript. During this period, funding provided by Leeds University under the World Universities Network (WUN) permitted me to spend some time at the Law School of the University of Sydney, New South Wales in the early part of 2008 researching freedom of expression-related aspects of Australia’s ‘war on terror’. I was made to feel extremely welcome by colleagues there. An especial debt of gratitude is owed to Professor Helen Irving, a fellow comparative constitutional lawyer from whose expertise in Australian constitutional law I derived considerable benefit. The participation of Sydney Law School Staff at a lunchtime seminar paper I presented on the ‘Danish Cartoons’ was also most appreciated. Colleagues at Leeds in what

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Preface

was formerly the Human Rights Research Unit and currently our Centre for International Governance provided domestic sounding boards for some of the ideas and arguments developed in the pages that follow. Not all my study leave was spent on this monograph. Time was found to captain the Leeds Law staff cricket team against the Leeds Law students. I am glad to record here for posterity’s sake the victory our side achieved over youth that day in May 2008 on the playing fields of Weetwood. Ilkley, January 2009

Ian Cram

Contents

Table of Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi 1

‘The War on Terror’ Security and Expressive Freedom . . . . . . . . . . . . . . 1 1.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.2 ‘The War on Terror’ and Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.2.1 Locke, ‘Balancing’ and Liberal Anxieties About State Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1.2.2 Enhanced Executive Power During Emergencies – the Posner & Vermeule Defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 1.3 Militant Democracy and Counter Terrorism Measures . . . . . . . . . . . . . 15 1.3.1 Democratic Legitimacy: The Work of Robert Post . . . . . . . . 18 1.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

2

The Protection of Dissent in International Human Rights Law . . . . . . 2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 International Human Rights Norms and National Law: An Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.1 The International Covenant on Civil and Political Rights (ICCPR) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.2 UN Security Council Resolutions 1456 (2003) & 1624 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3

The Regulation of Political Association and Possession of Documents Under Domestic Counter-Terrorist Laws . . . . . . . . . . . . . . 3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 The Revised Definition of Terrorism in the UK . . . . . . . . . . . . . . . . . . . . 3.3 Proscription . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.1 Issues of Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.2 Legal Powers of Proscription . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.3 Proscription and Strasbourg Jurisprudence . . . . . . . . . . . . . . . . .

23 23 24 30 37 40

43 43 45 52 52 56 59 vii

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Contents

3.4

Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.1 The Avoidance of ‘Catastrophic Harm’ . . . . . . . . . . . . . . . . . . . . 3.4.2 Northern Irish Prototype . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.3 Terrorism Act 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.4 Facilitative Information: The Constitutionality of Prohibitions on Possession of Dual Use Materials . . . . . . 3.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

62 62 64 65 67 71

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Incitement and Glorification of Terrorism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 4.1 Introduction: Sedition, Subversive Advocacy and Pathology . . . . . 73 4.2 Sedition Laws from the Divine Right of Kings to The Satanic Verses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 4.3 Models of Regulating Subversive Speech . . . . . . . . . . . . . . . . . . . . . . . . . . 85 4.3.1 Subversive Advocacy Entirely Beyond Ambit of Constitutional Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 4.3.2 Ad Hoc Balancing Between Harm/Benefits of Expression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 4.3.3 Presumptive Unconstitutionality of Restraints upon Freedom of Expression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 4.4 The Council of Europe Convention on the Prevention of Terrorism CETS No. 196 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 4.5 The Statutory Offences of Indirect Encouragement of Terrorism and Dissemination: Terrorism Act 2006 . . . . . . . . . . . . . 97 4.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

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Constraints on Newsgathering and the Coercion of Media Organisations: Production/Source Disclosure Orders . . . . . . . . . . . . . . . 5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Production/Access Orders Under s. 9 & Sch. 1 of the Police and Criminal Evidence Act 1984 (PACE) . . . . . . . . . . . . . . . . 5.3 Production/Access Orders Under Terrorism Act 2000 . . . . . . . . . . . 5.4 Other Forms of Compelled Disclosure Affecting Journalists . . . 5.5 Disclosure of Journalists Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.1 The Position at Common Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.2 Statutory Protection for Non-Disclosure of Sources . . . . . . . 5.5.3 Human Rights Era Case Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.4 Domestic Developments: Methodological Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.5 Jurisdictional Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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107 107 110 112 115 118 119 120 124 127 129 129

The Disclosure of State Secrets and Dissent: Official Secrets, DA Notices and Freedom of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 6.2 Official Secrets Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

Contents

A Quaintly British Affair: Informal Regulation by DA Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4 Freedom of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4.1 FOIA 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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6.3

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Conclusion: Safeguarding the Jarring of Opinion; Where Now? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 Towards a Bolder Defence of Dissenting Expression: The Pathological Perspective and Common Law Constitutionalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.1 A final thought . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

139 146 147 153

155 155

158 164

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167

Table of Legislation United Kingdom Statutes

Anti-terrorism, Crime and Security Act 2001 Broadcasting Act 1981, s.29(3) Civil Authorities (Special Powers) Act 1922 Contempt of Court Act 1981, s.10 Criminal Justice and Immigration Act 2008, s.74 & Sch 16 Financial Services Act 1986, s.178 Fox’s Libel Act 1792 Freedom of Information Act 2000 S.1 S.23 S.26 S.27 S.35 S.36 S.50 S.52 S.53 Freedom of Information (Scotland) Act 2000, s.31 Incitement to Mutiny Act 1797 Habeas Corpus Suspension Act 1817 Human Rights Act 1998 S.2 S.4(2) Licensing Act 1662 Northern Ireland (Emergency Provisions) Acts 1991 S.30 S.31 Official Secrets Act 1889 Official Secrets Act 1911, s.2(1) Official Secrets Act 1920, s.6 Official Secrets Act 1989 xi

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S.1 S.2 S.3 S.5 S.7 Police and Criminal Evidence Act 1984 S.9 S.13 Schedule 1 Prevention of Terrorism (Temporary Provisions) Act 1989 S.20(1) Public Order Act 1986, Part 3 S.23 S.29G Racial and Religious Hatred Act 2006 Seditious Meetings Act 1795 Statute of Treason 25 Edw. 3 (1352) Terrorism Act 2000 S.1 S.2 S.3 S.5 S.6 S.11 S.12 S.13 S.19 S.32 S.37 S.38 S.41 S.54 S.55 S.57 S.58 S.121 S.123 Schedule 5 Terrorism Act 2006 S.1 S.2 S.21 S.34

Table of Legislation


United Kingdom Orders and Statutory Instruments Defence of the Realm Regulations (1918) No.40 D Legislation from other jurisdictions Australia Constitution Act 1901 S.7 S.24 Canada Anti-Terrorism Act 2001 Spain Ley Orgańica 7/2000 (now Article 578, Co´digo Penal) United States Bill of Rights First Amendment Patriot Act Sedition Act 1798 USC Title 18 s.2331. International Conventions Council of Europe European Convention on Human Rights Article 6 Article 10 Article 11 Article 17 European Convention on the Prevention of Terrorism CETS No. 196 Article 5 Article 12 International Covenant on Civil and Political Rights 1966 Articles 4 5 9 10 12 14 17 18 19 20

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21 22 25 27 Human Rights Committee Reports General Comment No. 29: Derogations during a state of emergency (Article 4) [2001] Sixth Periodic Report United Nations Security Council Resolutions 1373 1456 1624 Other International human rights norms Johannesburg Principles on National Security, Freedom of Expression and Access to Information Paris Minimum Standards of Human Rights Norms in a State of Emergency Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights Third Restatement of the Foreign Relations Law of the United States

Chapter 1

‘The War on Terror’1 Security and Expressive Freedom

1.1

Introduction

History abundantly documents the tendency of Government – however benevolent and benign its motives – to view with suspicion those who most fervently dispute its policies. . . The danger to political dissent is acute where the Government attempts to act under so vague a concept as ‘‘domestic security.’’ Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. United States v United States District Court 407 US 297 (1972) per Powell J at 314.

This is a book about freedom of expression and counter terrorism laws in the United Kingdom. It was sparked by what was seen at the time to be a largely incidental aspect of the Blair Government’s wider response to the terrorist outrages of September 11, 2001 and the London Bus and Tube bombings of July 7, 2005 (and the unsuccessful subsequent attempts of July 21, 2005) – namely the set of restraints in Sections 1 & 2 of the Terrorism Act 2006 upon communications that indirectly encouraged terrorism. Other controversial measures in the ‘war on terror’ such as indefinite detention of suspected terrorists, control orders, extensions of period of detention prior to charge, limits on the right of persons subject to control orders to learn in judicial proceedings of the basis of the case against them, have

1

I use the term in parentheses to refer to counter terrorism measures pursued since September 11, 2001 by a number of western liberal democracies, notably the US & UK. Like many others, I dispute the assertion that these states are now or have been living through a time of ever present terror in which the lives of their citizens are experienced as being under continuous physical threat in the way that the lives of citizens elsewhere in Sudan, Afghanistan or Iraq are threatened. As Kostakopolou has noted, while terrorists can kill innocent persons, frighten countless more individuals and destroy property, they do not threaten the very existence of the state, see D Kostakopolou, ‘How to do things with security post 9/11’ (2008) 28 OJLS 317. The phrase though contested has however acquired a resonance through its repeated use by politicians and the media to refer to counter terrorism measures adopted since September 11, 2001.

I. Cram, Terror and the War on Dissent, DOI: 10.1007/978‐3‐642‐00637‐1_1, # Springer-Verlag Berlin Heidelberg 2009

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2

1 ‘The War on Terror’ Security and Expressive Freedom

justly attracted considerable critical attention.2 By contrast, limits on freedom of expression (and linked freedoms such as association) promulgated in the name of the ‘war on terror’ have featured less prominently in public debate. Nonetheless, restraints on dissenting (including anti-democratic) speech do raise important questions about the polity’s claims to be a well-functioning constitutional democracy. Thus, one of the overarching questions that is canvassed in Chaps. 3 and 4 of the book is whether the set of newly promulgated offences connected to party political membership, possession of terrorist materials and ‘glorification’ represent a strategic ‘militant democracy’ type response to the growth of Islamic fundamentalism whereby core democratic freedoms are denied to those deemed to be the enemies of democracy. Such a strategy is however problematic for a democracy committed to constitutionalism under which a popularly-elected, responsible government acts within the rule of law, respects the separation of powers (or at least the checks and balances that exist to limit executive power) and individual autonomy/human rights. No account of the impact of counter terrorism laws on freedom of expression can afford to ignore the panoply of controls to which media organisations and professionals are subject in their newsgathering activities as well as the opportunities and limits presented to the media and others by freedom of information legislation. It is perfectly logical to link freedom to dissent to the capacity of news media to inform their audiences on terrorist- related matters. Rival accounts that challenge official governmental explanations or justifications need access to relevant factual material to be credible. Where media channels are closed down and information about security matters are unduly limited, informed democratic control by the electorate is likely to be diminished. Constraints on newsgathering activities are discussed in Chaps. 5 and 6 where a broad spectrum of powers and controls are considered. The latter include problematic demands that an investigative reporter disclose sources or hand over his/her notebooks and other journalistic materials to assist police inquiries. The use of Official Secrets legislation and ‘D’ notices to limit the flow of government information into the public domain also features in this section of materials. A recurrent theme in the international community’s response to recent terrorist outrages has been the complementarity of counter terrorism policy and human rights. In rhetorical terms at least, there appears to be a positive commitment in principle to maintaining core freedoms such as freedom of expression and to restraining disproportionate interferences by the state. Chapter 2 considers the norms in international law that might be relevant at the domestic level in the regulation of dissenting expression and minority association. The domestic status and provisions of treaty law, customary law and ‘soft’ law norms are all discussed. UN Security Council Resolutions also feature in this section of materials. The UK Government played a major role in the drafting of UN Security Council Resolution

2

A good recent account that discusses developments within their historical context is provided by Professor David Bonner, Executive Measures, Terrorism and National Security (2007, Ashgate, Hants).

1.2 ‘The War on Terror’ and Rights

3

1624 on incitement to terrorist activity which was then prayed in aid by the Blair Government in the domestic political arena to secure the passage of the Terrorism Act 2006. The aim of this chapter is to analyse whether international law forms represents a significant check on national authorities minded to shut down dissenting speech (including speech that advocates anti-democratic values) and unpopular political associations (including those that advocate anti-democratic policies). The opening chapter situates the free speech/free association concerns that lie at the centre of this monograph within the broader context of tensions between demands for greater security on the one hand and human rights. One month after the London bus and tube bombings of July 7, 2005, Prime Minister Blair was moved to declare: ‘Let no one be in any doubt that the rules of the game are changing.’3 A combination of new statutory offences and executive measures of a disruptive or preventative nature would now be deployed against those suspected of involvement in, or support for, terrorism. The unspoken premise behind the Prime Minister’s declaration was that individual and groups associated with terrorism had for too long benefited from an excessive degree of personal freedom (or, to put it another way, from an inadequate level of public security).4 It is to these fundamental arguments about the need to re-balance the ‘security – rights’ equilibrium in favour of enhanced security that attention now turns.

1.2

‘The War on Terror’ and Rights

In 2005, one edited collection of essays that was published in aftermath of the attacks of September 11, 2001 asked whether human rights had ‘irretrievably lost their status in international affairs and national policy-making?’5 A central focus of the contributing essays in Human Rights in the ‘War on Terror’ was the human rights repercussions for individuals of counter-terrorism measures enacted in the wake of recent terrorist attacks. Contributors discussed whether the apparent postCold War triumph of human rights discourse had in fact proved short-lived and been replaced by a security-conscious, individual rights-encroaching stance on the part of states and international organisations? If true, did this development reflect a deeper level, Hobbesian tendency on the part of liberal democratic states to ‘creeping authoritarianism’ in which the claims of liberty would ultimately lose out to countervailing security interests. Certainly, at the level of discrete legislative initiative post-September 11, 2001, governments and politicians have sought to justify downward adjustments of individual liberty by stressing the more ‘urgent’ claims of security. It was, the electorate was told, unreasonable to expect the same 3

‘The rules of the game are changing’ The Guardian (2005) August 5. For a critical assessment of this premise, see D Bonner, Executive Measures, Terrorism and National Security (2007, Ashgate, Hants.) ch. 1. 5 R Ashby Wilson, ‘Human Rights in the ‘War on Terror’’ in (ed. R Ashby Wilson) Human Rights in the ‘War on Terror’ (2005, CUP, Mass) at p. 1. 4

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degree of personal freedom after the events of September 11 as had existed before that date. The case for some re-alignment of the ‘balance’ between liberty and security has also been made by academics, including, surprisingly, scholars that had hitherto been considered to be enthusiastic advocates of a human rights-centred analysis of executive conduct. For these scholars, rights are now required to yield to the demands of enhanced security. Under this essentially consequentialist approach to policy-making, departures from the fundamental norms that characterise democratic societies are justified where they are needed to combat a ‘greater evil’ and maintain order. Thus for example, suspensions of the rule of law and/or the principle of habeaus corpus are contemplated in order that the executive can wage war against terrorism more effectively. In making an ethical case for such departures, Ignatieff for example has argued in favour of coercive measures that violate due process standards when the violation is ‘really necessary’ – that is when less coercive measures have been tried and found wanting and the proposed violation constitutes the next least restrictive means of effectively preventing a greater evil. In The Lesser Evil: Political Ethics in a Age of Terror, Ignatieff’s focus is on setting out a moral framework within which the analysis of antiterrorism measures might occur.6 He stops short of spelling out in more detail what his moral tests mean and whether individual states’ responses to terrorist activity meet the criteria.7 More concretely, the Harvard lawyer Alan Dershowitz has proposed at the international level targeted assassination of major terrorist leaders actively engaged in plotting further atrocities. On the domestic front, Dershowitz contemplates removing the absolute bar on torture as well as advocating a clutch of reforms including tighter controls over the movement of persons and allowing the state greater powers to collect intelligence and data about individuals.8 Less expansively perhaps, another scholar with previous ‘rights’ form – Bruce Ackerman – rejects the possibility that existing constitutional and criminal laws can respond adequately to the challenges posed by terrorism in the twenty first century.9 Canvassing the prospect of a cataclysmic terrorist onslaught that decapitates the government by ‘taking down the President and most of Congress and the Supreme Court’,10 Ackerman argues for wide discretionary powers to be vested in the executive 6

(2004, Princeton University Press, Princeton). For a critical evaluation of the ‘lesser evil’ argument see C Gearty, ‘Terrorism and Human Rights’ [2005] EHRLR 1. In cases where a departure from prevailing due process standard occurs in the name of counter terrorism, Ignatieff proposes that coercive measures be subject to adversarial justification in legislatures, courts and more widely in public debate. For discussion of the application of Ignatieff’s principles to the United States’ counter terrorist strategy, see M Minow, ‘What is the greatest evil?’ (2005) 118 Harv L Rev 2134. Ignatieff’s paradigm shift into the resolutely anti-rights reasoning of utilitarianism prompted Jonathan Raban to comment that Ignatieff had become the ‘in-house philosopher of the terror warriors’, J Raban, ‘The Truth About Terrorism’ (2005) New York Review of Books, January 13. 8 A Dershowitz, Why Terrorism Works (2002, Yale University Press, New Haven). 9 B Ackerman, Before the Next Attack, Preserving Civil Liberties in an Age of Terrorism (2006, Yale University Press, New Haven). 10 Ibid., at p. 9. 7


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under an emergency constitution. These powers would authorize inter alia curfews, intensive surveillance and forced medical treatment. A revised definition of torture produced by a ‘Decency Commission’ would assure state security services which particular interrogation techniques were permissible.11

1.2.1

Locke, ‘Balancing’ and Liberal Anxieties About State Power

Unsurprisingly, the various proposals to re-calibrate the liberty/security scales in favour of enhanced security have in turn generated considerable controversy. A general anxiety underpinning a significant strand of the critical responses to Dershowitz, Ignatieff and others reflects a Lockean concern that governments may be tempted in the name of greater security to abuse their powers, thereby compromising their purported liberal democratic credentials.12 The argument proceeds roughly thus: If we allow torture (or infringement of another core right) to take place in a carefully delineated, exceptional circumstance, we will in all likelihood be pressed into accepting further ‘exceptional’ circumstances that permit further rights curtailments. Locke himself foresaw that the very same powers that might be granted to government to safeguard the state from the enemies of the people might in turn be invoked against the government’s enemies.13 In the present security-conscious climate, what is at risk are the defining commitments and overarching constructs of the liberal democratic state. Cole and Dempsey put it thus: In responding to terrorism however, we must adhere to the principles of political freedom, due process and the protection of privacy that constitute the core of a free and democratic society.14

Similarly, Kofi Annan and others have contended that human rights values must remain an integral part of states’ counter terrorism policies.15 Academics endorsing 11

See further S Levinson (ed.) Torture, A Collection (2004, OUP, Oxford). Although Locke’s account of prerogative powers appears to confer an unchecked discretion on the executive to act in exceptional circumstances, see J Locke, Two Treatises of Government (1970, CUP, Cambridge) at 146–168 and the essay by M Freeman, ‘Order, Rights and Threats: Terrorism and Global Justice’ in (ed. R Ashby Wilson) Human Rights in the ‘War on Terror’ (2005, CUP, Mass) at pp. 39–41. 13 See in this vein the work of Judith Shklar, whose concept ‘the liberalism of fear’ draws on moral psychology and the prevalence of human vices and prejudices. Shklar stresses the dangers of cruelty which arise from concentrating ever greater powers in the state in the name of securing greater order and security as discussed in B Yack, (ed.) Liberalism without Illusions: Essays on Liberal Theory and the Political Vision of Judith N Shklar (1996, Univ. of Chicago Press, Chicago). I discuss this in more detail in the text below. 14 D Cole & J X Dempsey, Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security (3rd edn.) (2006, The New Press, New York) at p. 1. 15 See the UN Press Release of March 11, 2005 entitled ‘Secretary-General Kofi Annan Launches Global Strategy against Terrorism in Madrid: Agreement on Terrorism Convention, Respect for Human Rights, Strengthening State Capacity to Prevent Terrorist Acts Key Elements of Strategy’ at http://www.unis.unvienna.org/unis/pressrels/2005/sg2095.html 12

6


this line have drawn on Locke’s Two Treatises on Government to reject the apparent antithetical nature of the relationship between security and individual liberty. Tesoń for example has argued that measures intended to confer greater security are only justified to the extent that they promote the ‘liberal’ constitution and its values. Security can never be an end or value in itself.16 Rather, security and order are needed in an instrumental sense to enable individuals to pursue autonomous life plans or to safeguard natural rights. The critical error made by those adopting a Hobbesian perspective is that security is elevated to the level of an intrinsic good that exists on an equal footing with individual liberty and which, when threats arise, must take precedence over rights claims. Tesoń reminds us that absolute security could only ever be attained in a police state and that liberals accept the condition of non-absolute security because of a preference for a substantial degree of individual freedom.17 On his account, there may be a need for Hobbesian control (and a concomitant reduction of personal freedom) in the wholly exceptional scenario where a ‘total collapse of the social order’ is imminent, but there is scant evidence to suggest that liberal democracies have faced any such severe peril on September 11 or on any date since. For a number of liberal theorists, the critical role played by rights in constitutional design means that they enjoy a lexical priority over other conflicting interests and considerations such as community welfare.18 Rights do not, as Dworkin has previously stated, yield ordinarily to calculations of maximum benefit (including greater public safety).19 Nonetheless, Dworkin does not go so far as to argue that a rights claim can never be overridden by aggregate welfare considerations. The non-absolute nature of a number of rights (including free speech) makes clear that circumstances may arise in which a compelling case can be made for the abridgement of certain rights and freedoms. The threshold point at which a right will yield to the general good will plainly vary depending upon the importance that is attached to the right. It is difficult for example to see Dworkin endorsing the unencumbered exercise of the right to freedom of association when this puts the entire apparatus of the democratic liberal constitution at substantial risk of imminent collapse. Separately, John Rawls in A Theory of Justice defends a principle of justice he calls ‘equal liberty’ that cannot be overridden by appeals to the greatest good of the greatest number. At the same time, individual freedom is not absolute and can legitimately be restricted when the just constitution itself is threatened. Focusing on abridgment of the rights of intolerant persons to political association, Rawls argues that the tolerant are entitled to curtail the freedom of the intolerant in a limited range of circumstances only, namely when the tolerant groups ‘sincerely and with reason

16

F Tesoń, ‘Liberal Security’ in (ed. R Ashby Wilson) Human Rights in the ‘War on Terror’ (2005, CUP, Mass). 17 Ibid., at p. 62. 18 For Waldron, rights are ‘resolutely anti-consequentialist’, see J Waldron, ‘Security and Liberty: The Image of Balance’ (2003) 11 Jo. of Pol. Phil. 191. 19 R Dworkin, Taking Rights Seriously (1977, Duckworth, London).


7

believe that their own security and that of the institutions of liberty are in danger.’20 It is where the forces of intolerance are already so strong or growing so rapidly that the serious nature of the threat posed to the stability of the just constitution entitles the state on Rawls’ view to take liberty-reducing measures. A dominant metaphor in discussions of rights and security in the period after September 11, 2001 is the idea of ‘balance’ between security and liberty. The suggestion implicit in the work of Ignatieff and others is that the US and other liberal states had misjudged this balance by according an excessive degree of personal freedom. There arose a need post September 11, 2001 to recalibrate the scales in favour of greater security, thereby diminishing the extent of individual freedom. The task of those seeking recalibration was made easier Waldron notes by the ‘political defeatism’ of the electorate in the aftermath of terrorist assaults on the United States.21 Governments with their unique access to security intelligence could be entrusted to make the correct judgment about any necessary adjustments to civil liberties. Those who dared to challenge the case for, or extent of, recalibration risked being and indeed were accused of a lack of patriotism. Waldron nonetheless subjects this ‘recalibration’ argument to a penetrating critique. At the outset, he adopts Dworkin’s point about the non-susceptibility of rights claims (outside of wholly exceptional circumstances) to consequentialist reasoning based around the social costs of not curtailing the right in question.22 He is critical of the notion that individual rights comprised in the broader notion of justice are to be traded off against incremental gains in greater security. Waldron’s main concern however centres upon the distributional issues thrown up by rightsreducing measures.23 US reforms were framed in terms that distinguished between the freedoms of US citizens on the one hand and non-US citizens on the other.24 The PATRIOT Act for example directs additional federal powers against noncitizens only. Moreover, although new measures did not explicit target specific ethnic groups, most agree that in practice the laws have impacted most severely on members of ethnic minorities.25 It is accepted that ethnic profiling has become widespread at airports. The FBI is known to have a programme of interviewing 20

The Theory of Justice – Revised Edition (1999, OUP, Oxford) p. 193. ‘Security and Liberty: The Image of Balance’ (2003) 11 Jo. of Pol. Phil. 191. 22 Of course, this analysis would look quite different where the security claim could be convincingly recast as a competing individual right claim (such as the right to life or freedom from intentionally inflicted harm). There, the idea of a lexical priority for rights does not help resolve the conflict. This is not to say however that a reduction in a right is justified merely because the adjustment confers some benefit upon another rights bearer. 23 See similarly D Luban, ‘Eight Fallacies About Liberty and Security’ in (ed. R Ashby Wilson) Human Rights in the ‘War on Terror’ (2005, CUP, Mass). 24 This point is conceded by those concerned to defend the executive’s wide discretionary powers, see E Posner & A Vermeule, Terror in the Balance: Security, Liberty and the Courts (2007, OUP, New York) p. 92. 25 For a detailed account see D Cole & J X Dempsey, Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security (3rd edn.) (2006, The New Press, New York) Part IV. 21

8


ethnic Arabs lacking US citizen status. The losses in personal freedom are not experienced equally across all sections of the community. Most US citizens, especially those that lack physical resemblance to the targeted groups, have incurred little or no loss of personal liberty. There is thus, as Waldron claims, a ‘few/ most’ dimension to the balance. It does not follow however that because ‘the few’ are suspected of involvement in terrorist activity that their entitlements to due process rights and other core freedoms can be swept away for the sake of a putative gain to the security of the majority. Whatever the actual security gains may amount to, it is tempting to conclude with Waldron that the rush to legislation serves a powerful symbolic (and electorally useful) purpose of seeming to have retaliated promptly against an already marginalized group. Such a distributively unequal adjustment of rights would moreover clearly fall foul of Rawls’ conception of justice as fairness. In his ‘Original Position’ construct, it will be recalled that the citizens who are striving to reach an agreement about the rules of a just society do so under a ‘veil of ignorance.’ They are abstracted from reality and not allowed to know the details of their social positions in the just society. This ignorance extends to matters of race, ethnic group, sex and gender. It is therefore difficult to see how under such conditions it could be agreed to grant the state extended coercive powers over persons solely on account of their racial or ethnic identities. Underpinning Waldron’s critique is a pessimistic account of what happens when the state is accorded too much power over the lives of individuals. This chimes with Judith Shklar’s earlier work on the ‘liberalism of fear.’ Shklar’s distinctive contribution to liberal discourse and the role of rights within liberalism is the emphasis upon moral psychology, specifically the empirically demonstrable tendency of human beings to succumb to irrationality and cruelty to others.26 Her analysis of the violence and irrationality of twentieth century European history led her to endorse rights as a device to minimize the perpetuation of public cruelty and the abuse of power. In Shklar’s view the sense of continuous fear that absolute or oppressive forms of sovereign power produce in the governed conduces to an intellectual paralysis in which base and irrational fears can take hold. Those who are fearful of a central authority, she argues, are likely to be in cruel in turn to others. In her own words, we should ‘fear a society of fearful people.’27 A commitment to liberalism means erecting external, institutional safeguards against the abusers of power (as well as internal, psychological restraints against the individual’s tendencies to be cruel to others). The emphasis upon the prevention of public (as well as private) cruelty leads Shklar to advocate the toleration of vices, even painful ones such as betrayal and disloyalty. Liberalism must restrict itself to politics and to proposals to restrain potential abusers of power in order to lift the burden of fear and favour from the shoulders of adult women and

26

‘The Liberalism of Fear’ in (ed. S Hoffman) Judith N Shklar: Political Thought & Political Thinkers (1998, Univ. of Chicago Press, Chicago). 27 Ibid., at p. 11.


9

men, who can then conduct their lives in accordance with their own beliefs and preferences, as long as they do not prevent others from doing so as well.28

In the case of expression, although it is hard to live in a society where the public utterances of others offends, contradicts, or assaults our own sensibilities, Shklar’s position is one that is committed to maintaining diversity of opinion. This ‘primacy of toleration’ within liberalism acts to preserve a very broad range of beliefs from the coercive powers of the state and allows for a plurality of politically empowered groups to check the assertions of power holders and other powerful elites.

1.2.2

Enhanced Executive Power During Emergencies – the Posner & Vermeule Defence

Discussion of executive authority, recalibrations and the shift towards enhanced security during emergencies (a concededly fuzzy notion though generally understood to refer to ‘full-blown crisis when it might be reasonable to believe that serious harm threatens the nation’)29 also features in Posner and Vermeule’s Terror in the Balance: Security, Liberty, and the Courts. The concern of these authors conversely however is to show why Waldron et al. are wrong to fear broadly fashioned governmental powers and why the courts (which are said to be lacking in the relevant competencies) ought to defer to executive assessments of the appropriate balance between liberty and security during emergencies. Remarkably for a tome whose subject matter is the US Constitution (perhaps the best example of a constitution firmly anchored in the doctrine of separation of powers and accompanying checks and balances),30 the authors’ starting premise is ‘the presumptive validity of executive action during emergencies’31 and the book’s central argument is that the executive ought to be trusted during emergencies to make informed assessments about the need for enhanced powers. The avowed purpose of the authors is ‘to restrain other lawyers and their philosophical allies from shackling the government’s response to emergencies with intrusive judicial review and amorphous worries.’32 It is clearly beyond the scope of the present monograph to evaluate in detail the authors’ specific arguments about the US courts’ lack of competence to police executive curtailments of individual liberty during 28

Ibid., at p. 13. To adopt the definition used by Posner & Vermeule in Terror in the Balance: Security, Liberty and the Courts (2007, OUP, New York) at p. 42. 30 This design can of course be traced to the Founding Fathers’ appreciation of Montesquieu. Madison for example referred to Montesquieu as ‘the oracle who is always consulted and cited on this subject. . .’ J Madison, A Hamilton & J Jay, The Federalist Papers (ed. I Kramnick) (1987, Penguin Books, London) – Federalist Paper Number 47 – Publius (Madison). 31 Terror in the Balance: Security, Liberty and the Courts (2007, OUP, New York) at p. 5. 32 Ibid., at p. 275. 29

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emergencies. In passing though it may be remarked that, if the Guantanamo Bay jurisprudence is anything to go by, the US Supreme Court does not share Posner and Vermeule’s lowly estimation of the judicial sphere’s ability to exert some degree of oversight.33 Consider Hamdan v Rumsfeld for example where the Court ruled that the President lacked an ‘inherent’ power to create military tribunals.34 Or take Rasul v Bush in which a majority of the Court declared that foreign nationals captured in combat outside the United States could test the legality of their detention in the US courts.35 Or look at Hamdi v Rumsfeld where a US citizen and alleged enemy combatant detained at Guantanamo Bay was deemed by the plurality to be entitled under the due process clause of the Fifth Amendment to be given an opportunity to be told the factual basis for his detention and a ‘meaningful opportunity to contest the factual basis for that detention before a neutral decision maker.’36 Lest this be thought a recent emboldening after the truly deferential (and infamous) 1944 ruling in Korematsu v US,37 it should be remembered that eight years on from Korematsu, President Truman’s order seizing steel mills during the Korean War was struck down for want of Congressional authority by the Court in Youngstown Sheet and Tube Co. v Sawyer.38 Posner and Vermeule wish to show more broadly that the individual rights critique of enhanced executive power during times of crisis is unfounded. The general terms in which the authors state their arguments suggest a more widely applicable, cross-jurisdictional defence of executive action, one that should interest a UK audience where the dominant position of the executive in the legislature virtually guarantees the enactment into law of the executive’s counter terrorism proposals. Terror in the Balance seeks to disentangle several arguments made by human rights critics. These may be briefly stated as follows: (i) Governments tend to panic in emergencies and act irrationally by overstating the case for greater security; (ii) Governments are prone to ‘democratic failure’ in emergencies, responding to pressures from majority groupings by imposing a disproportionate burden of costs (in terms of reduced liberty) upon minorities; (iii) Governments systematically ratchet up security measures during emergencies and then fail

33

For discussion of early Supreme Court rulings arising out of Guantanamo Bay see P Berkowitz (ed.) Terrorism, the Laws of War and the Constitution: Debating the Enemy Combatant Cases (2005, Hoover Institution Press, Stanford). For an account of a rule of law-based approach to emergencies in which the judges play a relatively restrained role (alongside the executive and legislature) in responding to the emergency, see D Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (2006, CUP, Cambridge). 34 548 US 557 (2006). 35 542 US 466 (2004). 36 542 US 507 (2004). 37 323 US 214 (1944) Mass internment of Japanese-Americans during World War II. In 1988, President George Bush belatedly apologized for the internment and made an offer of reparation. For a British equivalent in terms of judicial feebleness, see Liversidge v Anderson [1942] AC 206. 38 343 US 579 (1952) and see Black J, ‘The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times.’ at 589.


11

subsequently to restore the pre-emergency equilibrium between liberty and security once the emergency is past. According to Posner and Vermeule, none of these arguments offers a convincing basis to fault governmental adjustments to the liberty/security scales. In a direct attack on Waldron, they query his credentials to advance institutional critiques or causal hypotheses about political psychology and the structure of political representation. Waldron’s expertise lies in constitutional theory, not empirical claims about the actual conduct of government.39 Lawyers too should refrain from criticising executive assessments since they too lack expertise in security matters.40 Leaving to one side the substantial issues of executive accountability that are posed by this account, it is important to examine each of the attempted refutations of human rights arguments in greater detail. I will argue that Posner and Vermeule’s empirical assertions, in as far as they seek to explain the UK experience are, in the main, contradicted by the record of government responses to crises and emergencies. Indeed, it is my argument that UK counter-terrorism policy exhibits features of all three strands of the human rights critique and that, contrary to Posner and Vermeule, the various strands are more connected than the authors would have us believe. In terms of its general themes, what will alarm constitutional law scholars most about Terror in the Balance is the excessive trust placed in executive power, a trust that allows settled constitutional norms to be trampled upon. (i) Panic In the aftermath of a terrorist outrage or other crisis widely perceived to threaten the state, governments will panic or bow to a sense of panic in the wider population by implementing security measures that strike in an irrational way at core freedoms in the pursuit of enhanced security. The authors describe this view as a ‘staple’ of academic and popular discussions of emergency powers but find fault with it on several grounds.41 Posner and Vermeule’s central objection to the panic thesis is that there is no reason to suppose the existence of an emergency will systematically lead government to undervalue human rights or overstate the need for enhanced security. Rather, we are assured that ‘the government will attach the same weight to these goods as it does during normal times.’42 The government on this view is no more likely to panic into enacting rights-curtailing legislation in the aftermath of a major terrorist incident, than in normal times.

39

Terror in the Balance (2007, OUP, New York) at p. 38. Ibid., at p. 94. 41 Posner and Vermeule claim that the state of fear that precedes a panicked official reaction is not an unambiguously bad phenomenon since it may motivate governments to address the threat. However it cannot be the case that the irrationality that is implied by ‘panic’ is to be preferred to a rational determination that considers whether existing laws are up to the task of meeting the threat in question. 42 Terror in the Balance (2007, OUP, New York) at p. 60. 40

12


There is an embarrassing richness of counter-evidence across any number of jurisdictions and from different time periods with which to refute this odd claim.43 Did it ever occur to Posner and Vermeule that the reason the ‘panic’ thesis has become a ‘staple’ of academic commentaries is that it might possibly carry some conviction? Admittedly one could quibble over the use of the word ‘systematically’ inserting ‘prone to’ in its place. However, the evidence to support the thesis is overwhelming. Here is a sample of some randomly selected instances of panicked official reactions from the United Kingdom. Consider for example the Defence of the Realm Regulations (1918) No. 40 D which made it an offence for a woman with venereal disease to have sexual intercourse with a soldier.44 Further back in British history, the Incitement to Mutiny Act 1797 reached the statute book after naval mutinies at Nore and the Spithead. The new Act was premised upon the panicky and mistaken belief that French revolutionaries had urged sailors to overthrow the British ruling class.45 Bringing the UK analysis up to the present time, Clive Walker a UK terrorism expert, pointed to the fact that UK by 2007 counter terrorist legislation has only ‘partially learned . . . the importance of devising a rational legal code and not panic legislation.’46 Walker is critical of the cycle of emergency laws prior to 2000 which were devised hurriedly after each fresh terrorist outrage. Nonetheless, as Walker contends, elements of a panic response remained after 2000. Part IV of the of the Anti-terrorism, Crime and Security Act 2001 allowed the Home Secretary to detain indefinitely without charge non-nationals that were reasonably (i) believed to a risk to national security and (ii) suspected of being an international terrorist.47 The effect of the measures was to subject non-nationals to indefinite detention without charge, a draconian measure that was not available in respect of UK nationals suspected of involvement in international terrorism. A challenge was taken to the legality of the indefinite detentions provisions the 2001 Act before the House of Lords in A and Others v Secretary of State for the Home Department.48 Observing that the UK Government had not entered a derogation in respect of the Convention prohibition on discrimination in Article 14, seven members of the nine-strong bench in the House of Lords faulted Part IV on the

43

A good and brief summary of legislation enacted immediately after terrorist incidents in the UK and US is to be found in K Roach, ‘Anti-Terrorism and Militant Democracy: Some Western and Eastern Responses’ in A Sajo´ (ed.) Militant Democracy (2004, Eleven International Publishing, Netherlands) at pp. 184–188. 44 S R & O 1918 No. 367 Regulation 4. Admittedly the regulation was revoked shortly afterwards by S R & O 1918 No. 1550 which may itself be an admission of its irrationality. See further K D Ewing & C Gearty, The Struggle for Civil Liberties (2000, OUP, Oxford) at p. 53. 45 In truth, it is generally accepted that low pay and poor conditions lay behind the Nore mutiny, see further Ch. 4. 46 ‘The United Kingdom’s Anti-Terrorism Laws: Lessons for Australia’ in A Lynch, E McDonald & G Williams (eds.), Law & Liberty in the War on Terror (2007, Federation Press, New South Wales) at p. 187. 47 Anti-terrorism, Crime and Security Act 2001, Part IV, ss. 21–23. 48 [2005] 2 AC 68.


13

ground that the new powers of executive detention unjustifiably discriminated against non-nationals. The most relevant point for present purposes however was the irrational (and thus panicky) assumption of the UK Government after the events of September 11, 2001 that British citizens could not pose a qualitatively similar threat to national security compared to non-nationals, an assumption which of course was startlingly refuted by the London bus and tube bombings of July 7, 2005. Of course, it is also plausible to suggest that governments ‘panic’ additionally outside of emergency situations when for example their political survival is at stake. Such occurrences do not falsify the argument of a pronounced tendency to panic when emergencies arise. In quantitative terms however, Posner and Vermeule offer no evidence that might begin to hint at the equal likelihood of such ‘non-emergency’ panics. (ii) Governments are prone to ‘democratic failure’ The essence of this claim is that once an emergency has arisen, an elected government consciously acts as the agent of what it perceives to be majority interests and will seek to readjust the security/liberty balance by providing greater levels of security for the majority by reducing selectively the liberties of minority groups. The downward adjustment might occur via a process of scapegoating of minority groups in which hostile sentiments in the rest of the population which are latent during non-emergency periods become overt during emergencies. The tendency towards scapegoating may be especially strong where the target group is linked in some way to perpetrators of the emergency. Conscious of the electoral benefits of giving legislative form to these sentiments, politicians move to meet majoritarian feeling by implementing targeted and discriminatory rights reduction policies. This is certainly one way of reading the criminalization of glorification/indirect encouragement of terrorism effected by s. 1 of the Terrorism Act 2006 (which is discussed in detail in Chap. 4) and the power to proscribe political associations (Chap. 3). Where selection does occur on the basis of political belief, this is especially problematic for liberal democracies where freedom of political expression is typically valued highly. Of course, it is plausible to argue, as Posner and Vermeule do, that governments may play up to majoritarian opinions in similar discriminatory ways outside of emergency settings. After all, it is to be expected that the instinct to self-preservation among elected politicians would be strong particularly at certain stages of the electoral cycle. This much can be conceded without losing sight of the vulnerability of minority groups during times of emergency or crisis where the group(s) is (are) connected to the source of the emergency. Arguably one of the most egregious examples of democratic failure is the mass internment of 120,000 JapaneseAmericans (two-thirds of whom were US citizens) after the attacks on Pearl Harbour. The incarceration was justified as a necessary act to safeguard US military and civilian interests against the actions of a potentially disloyal group. The internment was readily accepted by the vast majority of US citizens who held ‘long-standing prejudices against Japanese immigrants.’ One Los Angeles journalist wrote at the time

14

1 ‘The War on Terror’ Security and Expressive Freedom If making 1,000,000 innocent Japanese uncomfortable would prevent one scheming Japanese from costing the life of an American boy, then let 1,000,000 innocents suffer.49

Nagata notes that the justification of military necessity went unchallenged for decades after the internment.50 Whilst the Roosevelt Administration’s decision might initially have been characterised as a ‘panic’ measure, the length of detention (3 years) and the absence of any evidence against any internee of espionage or other conduct harmful to US military interests makes this claim much less convincing. (iii) Ratchetting The third civil liberties argument that Posner and Vermeule wish us to discard is the contention that, during emergencies, governments systematically ratchet up security powers and fail to scale back these powers once the emergency is over. Once more the evidence in the UK supports rather than undermines the allegation. A number of commentators on the problem of terrorism connected with the affairs of Northern Ireland have remarked on the ‘normalization’ of emergency powers. Michael O’Boyle for example noted in the case of internment how Frequent use of emergency powers to cope with crises . . . acclimatises administrators to their use, and makes recourse to them in the future all the easier. The danger is that succeeding generations of administrators inherit these powers as being efficient and unobjectionable. . .51

Writing in the mid 1980’s David Bonner reached a similar conclusion. The draconian Civil Authorities (Special Powers) Act 1922 in Northern Ireland was originally a measure subject to annual, and later quinquennial, renewal. In 1933, it was made permanent so that ‘‘in a sense Northern Ireland (was) being treated in a permanent state of emergency.’’52 Concern has been expressed that the current state of anti-terrorist measures are in danger of becoming de facto permanent features. A common complaint about emergency powers is their retention for longer than necessary.53

Ewing and Gearty likewise commented in 1990 that (T)he lesson of the past two decades has been that temporary measures, designed to meet the particular emergencies, have a tendency to become permanent and to develop a life of their own, independent of the transitory panic that gave birth to them.54

49

Henry McLemore writing contemporaneously in the Los Angeles Times and cited by US News & World Report (2008) May 8 ‘Japanese-Americans Fight to Preserve Wartime Internment Camps’ by Justin Ewers. 50 D Nagata, ‘Expanding the Internment Narrative: Multiple Layers of Japanese American Women’s Experiences’ in (eds. M Romero & A J Stewart) Women’s Untold Stories: Breaking Silence, Talking Back, Voicing Complexity (1999, Routledge, London) at p. 72. 51 M O’Boyle, ‘Emergency Situations and the Protection of Human Rights: a Model Derogation Provision for a Northern Ireland Bill of Rights’ (1977) 28 NILQ, 160, 164. 52 W Twining, Emergency Powers: a Fresh Start Fabian Tract 416 (1972, Fabian Society, London) p. 4. 53 D Bonner, Emergency Powers in Peacetime (1985, Sweet & Maxwell, London) at p. 17. 54 K Ewing & C Gearty, Freedom under Thatcher (1990, Clarendon Press, Oxford) at p. 213. See further C Walker, The Prevention of Terrorism in British Law (2nd ed.) (1992, Manchester Univ. Press, Manchester) ch. 4.

1.3 Militant Democracy and Counter Terrorism Measures

15

As suggested above, some or all of these rationales for liberty reduction may at times overlap and combine. A panicked Government may seek to target minority groups in a selective rights-reduction exercise with one eye on the electoral gain to be had from such a strategy. In other instances, it may, as Ewing and Gearty suggest in the last quotation, fail to draw back emergency powers having previously introduced them in a hurried and ill-thought through manner. The various adjustments of the security/liberty ‘balance’ touched on above will remain centre stage throughout this monograph as the details of specific domestic limits on freedom of expression and the media are explored. At the level of thematic overview, it can be asked whether a broader conceptual framework can be constructed within which critical analysis of these limits can occur. One concept that may prove valuable in this regard is the notion of ‘militant democracy’.

1.3

Militant Democracy and Counter Terrorism Measures

The activities of terrorists and their supporters tend to be conceived as existing outside normal, democratic politics. The apparent preference for the bullet and armed struggle over the ballot box and peaceful, democratic reform is of course a simplification, at least in respect of a number of struggles where terrorists and/or their supporters are prepared to use core political rights found in liberal democracies such as freedom of expression and association to advance their agendas.55 Where this occurs, it poses an acute dilemma for the state. To what extent, if any, is it legitimate for a liberal democracy to build into its counter terrorism strategy limits on the use of the rights to expression and association by terrorists, their supporters and sympathisers? As subsequent chapters of this monograph will attempt to demonstrate, the UK’s counter-terrorism strategy incorporates aspects of ‘militant democracy’ in its reliance upon the techniques of proscription of political associations, as well as glorification and encouragement offences that constrain expression. Roach has observed that the inclusion of a reference to political, ideological or religious motives in the UK’s expanded definition of terrorism means that the prosecution has to provide evidence of the anti-democratic beliefs that inspired the conduct of the accused.56 Anti-terror laws, Roach contends, could however be constructed in accordance with traditional principles of the criminal law that focus on the accused’s intention and deem irrelevant his/her 55

The focus in the monograph being on expressive freedom, I am ignoring here the tendency of militant democracies to resort to preventative detention and the right to liberty issues also implicated in militant democracy-style responses. 56 K Roach, ‘Anti-Terrorism and Militant Democracy: Some Western and Eastern Responses’ in A Sajo´ (ed.) Militant Democracy (2004, Eleven International Publishing, Netherlands). This of course has a downside for prosecutors in that failing to prove beyond reasonable doubt that the defendant was so motivated will be fatal to the prospects of conviction. Roach has been critical of Canada’s inclusion of political, ideological or religious motive in its Anti-Terrorism Act 2001, see K Roach, September 11 – Consequences for Canada (2003, McGill – Queen’s University Press, Montreal) at pp. 25–28 and see further Chap. 3 of this book.

16


motives. As occurs under the Patriot Act in the United States, the emphasis could simply be upon ‘violent acts or acts dangerous to human life’ where the intention of the perpetrator is to intimidate, coerce or influence the policy of the government. The unwillingness of the US legislators to ground counter terrorism laws upon matters such as the ideological beliefs of the accused reflects of course the constraining influence of the First Amendment.57 Conversely, the UK position that makes a person’s belief system relevant to liability for a terrorist offence can be seen to draw more closely upon a ‘militant democracy’ type approach that treats less favourably those whose views stand in opposition to democratic ideals. Some problems attendant on this approach are examined in more detail shortly. To begin however, it is necessary to elaborate the concept of ‘militant democracy’ more fully. If democracy believes in the superiority of its absolute values over the opportunistic platitudes of fascism, it must live up to the demands of the hour, and every possible effort must be made to rescue it, even at the risk and cost of violating fundamental principles58 K Loewenstein (1937)

It is unsurprising that the concept of ‘militant democracy’ should have emerged in German political thought at a time when the Weimar Republic’s failure to constrain the anti-democratic forces of national socialism became apparent. Loewenstein advocated pre-emptive action to curtail the political rights of the enemies of democracy such as free expression and association so as to hinder severely the latter’s ability to gain the support of the electorate. Democracies which had been captured by fascists had made the fatal error of extending to such groupings the same political rights as were enjoyed by their democratic opponents. After the defeat of Nazism by the Allies, the 1949 Constitution of the Federal Republic of Germany was careful to provide express limitations on the use of core democratic freedoms where the existence of the Constitution is threatened. Article 21(1) of the Basic Law recognises that political parties are agents ‘forming the political will of the people’59 and guarantees parties freedom to organize and campaign. However by Article 21(2): Parties which by reason of their aims or the behaviour of their adherents seek to impair or abolish the free democratic order or endanger the existence of the Federal Republic of Germany shall be constitutional. The Federal Constitutional Court shall decide the question of unconstitutionality.

The first party to be banned under Article 21(2) was the neo-Nazi Socialist Reich Party (SRP) in 1952. The Court concluded that the SRP had been set up to preserve and propagate National Socialist ideas such as the racial superiority of Germans and the belief in an authoritarian Fuhrer state.60 Four years later, the Communist Party (KPD) was also banned. According to the Court, the KDP’s programme evinced a

57

See inter alia RAV v St Paul 505 US 377 (1992). ‘Militant Democracy and Fundamental Rights I’ (1937) 31 Am. Pol. Sci. Rev. 417, 431–2. 59 Socialist Reich Party Case (1952) 2 BVerfGE 1. 60 Ibid. 58


17

‘fixed purpose’ to combat the free democratic order established by the 1949 Constitution.61 More recently in the post-Communist era of transition towards democratic structures of government in Eastern Europe, the Hungarian academic Andra´s Sajo´ has remarked upon the ‘risk-averse’ nature of liberated East European regimes and defended the resort to preventative measures against groups and individuals who openly seek the overthrow of democratic institutions and threaten fundamental norms. He identifies three main risks to transitional democracies in Europe - return to power of communists, the threat to territorial integrity posed by nationalist/secessionist forces and finally that posed by right-wing extremists invoking an ethnic agenda. He cites the European Court of Human Rights in Rekvenyi v Hungary in support of the idea that states in transition from communism to democracy enjoy a latitude to curtail the political rights of individuals and groups that is denied to more established democracies.62 Beyond the specific positions of emergent East European states however, Sajo´ mounts a more general and principled defence of militant democratic techniques that paradoxically begins to remind his audience why the concept is problematic in the first place. Constitutional democracies, he asserts, are inherently weak against forces that seek to seize power through emotional mobilization. . . The radical politics of emotion has a penchant for lying. It would follow that action against mobilizing lies is justified given the lack of value of such lies.63

No evidence empirical, psychological or otherwise is offered to sustain the suggestion that modern electorates in general (presumably in the period before capture and therefore with access to a range of information and competing viewpoints) are vulnerable to emotional manipulation and capture by anti-democrats. Instead Sajo´’s account tends to gloss over several problematic aspects of the ‘strong-arm’ defence of democracy. These include the tendency to overstate what law and legal sanction may be capable of achieving, especially when underlying economic or social grievances are left unaddressed.64 Even if law is successful in preventing the activity that threatens the polity, it does not, by that fact, take away the reasons individuals previously had for wanting to engage in the activity. Law in this sense serves to confer a superficial degree of reassurance that the ‘enemies of democracy’ are being held at bay when in fact it is merely the ostensible forms of 61 (1956) 5 BVerGE 85. For commentary, see DP Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (2nd edn., 1997, Duke University Press, Durham) at 217–38; L Kestel & L Godmer, ‘Inclusion and exclusion of extreme-right parties’ in (eds. R Eatwell & C Mudde) Western Democracies and the New Extreme Right Challenge (2004, Routledge, London) at 135–6; R Youngs, ‘Freedom of Speech and the Protection of Democracy’ [1996] Public Law 225. 62 (2000) 30 EHRR 519 – restrictions upon the political activities of police officers in Hungary held not to violate Article 10. 63 A Sajo´, ‘Militant Democracy and the Transition towards Democracy’ in A Sajo´ (ed.) Militant Democracy (2004, Eleven International Publishing, Netherlands) at p. 212. 64 K Roach, ‘Anti-Terrorism and Militant Democracy: Some Western and Eastern Responses’ in A Sajo´ (ed.) Militant Democracy (2004, Eleven International Publishing, Netherlands).

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anti-democratic conduct that have been suppressed. More fundamentally, the central dilemma which militant democracy poses for the liberal democratic state is whether, in restraining its enemies, elements of what makes the state essentially liberal democratic are compromised in the process or even abandoned in their entirety.

1.3.1

Democratic Legitimacy: The Work of Robert Post

In the case of restraints on the expression of anti-democratic beliefs, one useful way of thinking through some of the ensuing issues is provided by the idea of ‘democratic legitimacy’ that has been developed in the work of the US scholar Robert Post and the tension he explores therein between individual autonomy and substantive equality.65 Post’s account starts from a definition of democracy as active and mediated self-rule by the citizens. That is to say for citizens to experience government as their own government, each person ‘must have the warranted conviction that they are engaged in the process of governing themselves.’66 A vital component of this conviction is the perception that the state is responsive to the values of each citizen and that each one of us has the potential to influence the outcome of public discourse through our ideas and arguments. Provided that the ‘warranted conviction’ condition holds true, then each of us will be able to identify and maintain our identification with the state and its decision-making processes even if the actual outcomes of public discourse are at odds (as they must be from time to time) with our own preferred positions. To enable this identification with the state, it is required that each person be treated equally with other citizens as an autonomous, self-determining citizen. In this way, the citizen is free to decide whether and how to contribute to public debate. If the state regulates too readily the expressive activity of citizens,67 there will be a loss of autonomy on the part of the censored citizens and a consequent inability to influence the outcome of public discourse. Those so excluded will experience a loss of ‘democratic legitimacy’ and feel alienated from the process of self-government. On Post’s view, domestic public order law could be said to outlaw excessive amounts of speech using a very low threshold test with consequent alienation of a number of speakers. Under 65

I refer here to ‘The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation and Hustler Magazine v Falwell’ (1990) 103 Harv L Rev 605; ‘Racist Speech, Democracy and the First Amendment’ (1990–91) 32 Wm & Mary Law Rev 267; ‘Community and the First Amendment’ (1997) 27 Ariz St L J 473; ‘Democracy and Equality’ (2006) ANNALS of the American Academy 24; ‘Religion and Freedom of Speech: Portraits of Muhammed’ (2007) 14 Constellations 72. 66 ‘Democracy and Equality’ (2006) ANNALS of the American Academy 24, 26. 67 Aside from expression of anti-democratic values, an alternative basis for the restraint might be the offence caused thereby to others, see further I Cram, ‘Satire, Cartoons and Offensive Expression’ in (eds. I Hare & J Weinstein) Extreme Speech and Democracy (2009, OUP Oxford) ch. 16.


19

the incitement to racial hatred provisions in Part 3 of the Public Order Act 1986, an offence can be committed where a speaker uses ‘insulting’ words and hatred is ‘likely’ to be stirred up thereby. The prosecution does not have to show that the speaker intended to stir up racial hatred or that public disorder or an act of violence was likely to occur at some point in the future. Moreover, no one person hearing the speaker’s words need actually be incited to hate another on the basis of race.68 It is sufficient if a feeling of hatred towards the members of a racial group might have been (though actually was not) stirred up. Exceptionally, on Post’s account, the alienation of the censored could be justified where the consequence of allowing the censored expression is to ‘alienate all other citizens from participating in public discourse.’69 The silencing of the speaker in this scenario serves to preserve the very existence of public discourse. More commonly (and more problematically in Post’s view) is regulation of the speech of Citizen A because, in its unregulated form, A’s speech is considered to have the effect of ‘silencing’ citizens from group B (which could occur in the example of incitement to racial hatred discussed above).70 Accordingly, the restriction on A is rationalised on the ground that it will promote the fuller participation of citizens from group B in public discourse. For example, where A is prohibited from speaking because citizens in group B find A’s contributions to be offensive and/ or intimidating, a trade-off is occurring in which the loss to democratic legitimacy that happens when A’s autonomy is curtailed (and the autonomy of A’s audience) and he is thereby alienated from public discourse is seen as less substantial and less pressing than the loss to democratic legitimacy that happens when A is allowed (along with like-minded others) to heap public insult upon members of group B. One obvious danger of allowing the feelings of group B members to determine when A might be free to speak is that, once the injured feelings of a host of groups C, D, E and so on are taken into account, there might be little space left for robust opinion on matters of public importance. The decision to exclude from participation in public debate a speaker on account of the anti-democratic content of his/her views (rather than the need to preserve the conditions of public discourse) likewise not only alienates the speaker but interferes with the autonomy of both speaker and listeners. The idea that ‘bad ideas’ may be excluded from public debate is of course accepted within a European approach to speech regulation where an individual autonomy-based account of expression has historically proved less persuasive than in the United States. In much of European society, the state is not a neutral spectator between rival conceptions of the good 68

For a suggestion that the UK Government accepts that this threshold for liability is set too low, see the parliamentary debates on the new offence of inciting hatred on the grounds of sexual orientation at HC Debs (2007–8) Vol 475 cc. 603–604. (Maria Eagle MP). 69 ‘Democracy and Equality’ (2006) ANNALS of the American Academy 24, at p. 31. The speech type that he suggests might fit this scenario is ‘fighting words’. 70 The literature on the ‘silencing’ effect of racist and other speech includes M J Matsuda, ‘Public Response to Racist Speech: Considering the Victim’s Story’ (1989) 87 Mich L Rev 2320; R Delgado & J Stefancic, Understanding Words That Wound (2004, Westview Press, Oxford).

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life, but seeks actively to promote a substantive version of the ‘common good’ and strives to create the public and private virtues needed for society to attain that end.71 Rules of civility found in the common law (for example in the laws of defamation and privacy) or in statutes regulating public morals express dominant community norms and thus community identity. Restraints on racist speech, homophobic speech72 and more broadly anti-democratic expression (and thus on autonomy) can thus be cast and defended as the product of majoritarian rule-making that reflects prevailing norms (such as tolerance, non-violence and the equal worth of individuals) and are for the good of the whole community. Here, the demands of autonomous speakers and audience within the terms of democratic legitimacy may simply be seen as overridden by the demands of maintaining/enforcing community identity. One major difficulty with this stance is the largely speculative nature of the claims made about resultant physical harm to ethnic minorities, homosexuals or, in the case of anti-democratic speech, to the values and institutions of the state. More fundamentally however, it is the interference with the autonomy of speakers and audience that is problematic for a polity that considers itself to be liberal democratic. The implications of an autonomy-based approach to dissenting expression (including anti-democratic speech) will be returned to in the final chapter of this monograph.

1.4

Conclusion

As Post himself concludes, the relationship between speech and community is ‘highly dependent upon contingent matters of history and culture’.73 Nonetheless, the silencing of anti-democratic speech in the UK and elsewhere in Europe comes with a series of costs. The alienation of anti-democratic speakers and their audience (not all of whom will share the anti-democratic values of the speaker) has already been noted. Silencing also allows the speaker to claim convincingly that one of the much vaunted core freedoms of democratic societies is denied to those who argue for a non-democratic, alternative polity. This in itself is useful for recruitment purposes. In normative terms, one of the recurrent arguments in this monograph is that, where democratic institutions are not in imminent danger of collapse from anti-democratic forces, the state should be slow to limit expressive and associational activities. After all, the state has means of promoting democratic 71

On communitarian thinking in general see, M Sandel, Liberalism and the Limits of Justice (1982, CUP Cambridge), C Taylor, Philosophy and the Human Sciences: Philosophical Papers, Vol II (1985, CUP, Cambridge); M Walzer, Spheres of Justice: A Defence of Pluralism and Equality (1983, Blackwell, Oxford). 72 See now Criminal Justice and Immigration Act 2008, s. 74 & Sch 16 which amends Part 3A of the Public Order Act 1986 by the insertion of a new offence of inciting hatred against persons on grounds of sexual orientation. 73 ‘Community and the First Amendment’ (1997) 27 Ariz St L J 473, 483.

1.4 Conclusion

21

values other than by issuing fresh sets of prohibitions on expression and association. It can engage in its own communicative activities. It can provide financial and other forms of support to mainstream political and community organizations. Moreover, through citizenship classes in the state education sector, a particularly valuable means of inculcating such norms in future generations is available. None of the foregoing are likely to produce the same degree of alienation and disaffection that are linked to suppression and censorship of speech.

Chapter 2

The Protection of Dissent in International Human Rights Law

2.1

Introduction

This chapter is concerned with the treatment in international law of claims to freedom of expression and association in the context of ‘the war on terror.’ Where international law is relevant to the construction of domestic legal norms it offers the prospect of a check upon the liberty-encroaching tendencies of governments. In those constitutional settings where automatic overriding status is conferred upon it, the powerful transformative potential of international human rights law is obvious.1 As far as the UK is concerned, international law retains the capacity to reshape the contours of national human rights law, although this chapter points to a more subtle interaction with domestic statute and common law. The bulk of the chapter is expository in that it sets out to describe the key provisions in international law such as Articles 19–22 ICCPR and UNSC Resolution 1624.2 A central focus is provided by generally applicable sets of restrictions on expression such as ‘ordre public’ and ‘the rights and freedoms of others’ as well as the more specific sets of derogations that apply during times of public emergency. In order to gain a fuller sense of the way in which expressive activity is limited in international law, it is necessary additionally to devote some attention to the linked matter of proscription of political associations. In practice, the denial of freedom of association impacts adversely upon the capacity of group members to engage in expressive activity connected to the banned organisation. Whilst other means of transmitting political ideas may remain open (via the media, NGOs and pressure groups more generally), the forced closure of a political association undoubtedly hinders the

1

A good example is provided by Spain. Article 10.2 of the Spanish Constitution states: ‘The norms relative to basic right rights and liberties which are recognised by the Constitution shall beinterpreted in conformity with the Universal Declaration of Human Rights and the international treaties and agreements on those matters ratified by Spain.’ 2 Reference to regional human rights instruments is also made. However a fuller discussion of the Council of Europe’s Convention on the Prevention of Terrorism is held over to Chap. 4.


23

24

2 The Protection of Dissent in International Human Rights Law

ability of its supporters to exert pressure on the political process. The central claim made in this chapter is that, aside from its other well-established weaknesses, the international human rights framework offers an inadequate basis for the protection of dissenting expression. Despite attempts in ‘soft law’ statements such as the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights to tighten the conditions in which restrictions upon expressive freedom can be imposed, vagueness and ambiguity in the original treaty provisions appear to permit a wide range of interferences with freedom of expression and association. Of late, these defects have, if anything, been compounded by internally inconsistent UN Security Council resolutions intended to address the problem of incitement to terrorism. It is clear that these various elements of the international legal framework often constitute brokered political compromises among key nation states and are worded in such a way as to allow UN members considerable discretion as to how they are interpreted. In the case of the UK, action on the international stage has been intended in part at least to facilitate the passage of domestic legislation.3 The indeterminacy of the international legal framework has the important consequence for municipal legal systems that national authorities can act with a considerable degree of latitude to regulate anti-government expression. Indeed, it may be argued that the very ambivalence of international counter-terrorism norms feeds and emboldens the repressive tendencies of executive power holders, facilitating in turn the adoption of problematic ‘militant democracy’ style measures against anti-democratic forces. In short, the international legal system lacks the capacity to confer robust protection upon expressive and associational freedom. The reasons behind this state of affairs are documented in the pages that follow.

2.2

International Human Rights Norms and National Law: An Overview

Analysts of globalization and global governance have for some time remarked upon the demise of Westphalian politics. States are no longer recognised to be exclusively competent to determine the rights and obligations of individuals within their jurisdictions. Held for example has noted that the ‘legal significance of state boundaries’ has been downgraded in the period since 1945. New regulatory mechanisms that may be traced to the emergence of a ‘regime of liberal international law’ with its strong human rights and humanitarian components have reshaped the contours of state power.4 At the same time, others including the 3

On the indeterminacy of international law in general, see O Schachter, ‘The Invisible College of International Lawyers’ (1977) 72 NWULRev 217, where he remarked that ‘any side of an issue in dispute can find support in authoritative principles.’ at 220. 4 D Held, Global Covenant – The Social Democratic Alternative to the Washington Consensus (2004, Polity Press, Cambridge) at p. 125.

2.2 International Human Rights Norms and National Law: An Overview

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eminent international jurist Antonio Cassese have pointed out the extent to which the international legal system relies heavily for its effectiveness upon the ‘constant help, co-operation and support of national legal systems.’5 Whilst specialist tribunals and courts do exist under international law for specific purposes and with accordingly limited jurisdiction, there are no courts (or other adjudicative/ enforcement mechanisms) enjoying a general, universal and compulsory jurisdiction. It follows that, to be effective, international law is dependent upon the political will of governments and courts in the domestic legal system. Cassese also notes that there is no uniform method by which international law is implemented into municipal law. The sovereignty claims of individual States extends to the matter of how international legal norms and rules are to be translated into the domestic system. Here, the national self-interest of each State tends to determine what status is conferred upon international law.6 (i) Treaties As a matter of international law, treaties head the list of sources of law recognised in Article 38(1) of the Statute of the International Court, a fact that is said to reflect the view that treaties are the ‘primary expression’ of international law.7 The position in the United Kingdom is that international treaties are not self-executing. The mere fact that a treaty has been ratified does not make it part of UK law.8 This dualist approach to international law means that treaty obligations require to be given status in domestic law before their content can be invoked in national courts. Thus, whilst the Human Rights Act 1998 formally grants a status to the European Convention on Human Rights in domestic legal proceedings that the latter had hitherto lacked, there is no equivalent Act of Parliament obliging English or UK judges to give effect to the provisions of the International Covenant on Civil and Political Rights. Notwithstanding this dualism, some scope for giving effect to the content of international treaties does exist via a presumption of statutory interpretation. In Garland v BREL, Lord Diplock stated that a domestic enactment passed after the UK Government has entered a treaty agreement has to be given a meaning that meets and is consistent with the treaty obligations, provided that the words of the statute are reasonably capable of being so construed.9 Conversely, as Malone v

5

A Cassese, International Law in a Divided World (1986, Clarendon Press, Oxford) at p. 15. Of course, a State which is in breach of international law incurs liability as a matter of international law. However, in the absence of strong enforcement mechanisms at the level of international law, states (especially powerful ones) may be able to resist liability with impunity. Weaker, more isolated states will naturally be vulnerable to a wider range of sanctions, particularly where a degree of international consensus exists about the appropriate punishment. 7 H J Steiner, P Alston & R Goodman, International Human Rights in Context – Laws Politics Morals (3rd edn., 2008, OUP, Oxford) at p. 107. 8 For a contrary argument that ratification of an international treaty by itself is capable of giving rise to an enforceable legitimate expectation that the domestic authorities will conduct themselves in accordance with the treaty’s substantive principles, see the Australian decision of Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353. 9 [1983] 2 AC 751 at 771. 6

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Metropolitan Police Commissioner indicates, where Parliament remains silent on a matter that has been the subject of a treaty agreed by the UK, the courts are unlikely to create new common law rules to give effect to the treaty obligations.10 (ii) Freedom of expression and association as customary international law Aside from treaty-based provisions, customs are also recognised to be an important source of international law. Where the contents of an applicable treaty fall short of conferring robust protection on a particular freedom, it is possible for a rule of customary international law to fill the breach. Norms of customary international law are said to arise from the general and consistent practice of states (including public measures such as a state’s laws and judicial decisions, official pronouncements and diplomatic acts) where that practice is adhered to out of a sense of legal obligation (opinio juris).11 Unlike treaty-based norms, customary laws will bind without the need for a state to have formally signified its willingness to be so bound.12 Moreover, although there is no exact formula to determine the point at which a practice is deemed ‘general and consistent’, it is generally thought that the opposition of a single state would be unlikely to prevent recognition of the norm.13 In the cases of freedom of expression and association, claims to customary international law norm status might be thought to founder on the fact that, whilst frequently recognised as a core freedom in national constitutions, state practice reveals a widely inconsistent pattern of local protection. Some states qualify these freedoms much more readily than others.14 Notwithstanding this point, The Third Restatement of the Foreign Relations Law of the United States has referred to the possibility of regionalized or ‘particular customary law’ where the elements of state practice and opinio juris are present among a smaller group of participating states. This form of customary law might be considered to be the outcome of a ‘tacit agreement’ among the states concerned.15

10

[1979] 2 All ER 620, per Megarry V-C at 648 and also F Bennion, Statutory Interpretation – A Code (2nd edn., Butterworths, London) at Section 270. 11 Nicaragua v US (1986) ICJ Rep. 14 Merits, Judgment 27 June 1986 and see also the definition in the influential though non-authoritative Third Restatement of the Foreign Relations Law of the United States (1987, St Paul, Minnesota, American Law Institute Publishers) s. 102(2) that customary law ‘results from a general and consistent practice of States which is followed by them from a sense of legal obligation’. 12 Nicaragua v US ibid. 13 A Cassese, International Law (2nd edn., OUP, Oxford) at pp. 162–163. C.f. Third Restatement of the Foreign Relations Law of the United States (1987, St Paul, Minnesota, American Law Institute Publishers) Vol 1 at s. 102d (Comment) for an alternative stance that suggests a state which persistently objects or dissociates itself from an emerging rule is not bound by it. See also M Mendelson, ‘The Formation of Customary International Law’ 272 HR (1972) at 227–244. 14 This led Meron for example to deny the existence of freedom of expression as a norm of customary international law, see Human Rights Law-Making in the United Nations (1986, Clarendon Press, Oxford) at p. 114. 15 Third Restatement of the Foreign Relations Law of the United States (1987, St Paul, Minnesota, American Law Institute Publishers) Vol 1 at s. 102e (Comment).


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More explicitly, some treaty provisions may be considered to reflect customary international law norms and thus bind non-signatory States. This line of thinking leads somewhat circuitously back to the ICCPR and/or the European Convention on Human Rights. The latter for example could be said to enunciate a particularized, European version of customary law. An early statement concerning the domestic relevance of customary international law is to be found in Blackstone’s Commentaries on the Laws of England where it is stated that ‘the law of nations . . . is here adopted in its full extent by the common law, and is held to be part of the law of the land.’16 The suggestion that norms derived from customary international law might have some status in domestic law appears to pre-date and run counter to the claim made above that English law adheres to a dualist understanding of international law. Premised upon the sovereignty of Parliament, dualism entails that, in the absence of a statutory measure expressly incorporating an international legal rule into municipal law, the courts are unable to give effect to the international legal rule. As Murray Hunt has observed however, the dominant dualist account of international law gives way to a more obviously monist alternative when it comes to customary international law in those instances where the latter is not inconsistent with statute, even if contrary domestic common law precedents exist.17 Granting for the sake of argument Hunt’s claim about the receptiveness of domestic law towards international law, in trying to ascertain the content of customary international law, it is difficult nonetheless to look beyond the treaty norms developed in Article 10 & 11 ECHR jurisprudence. Nonetheless, for reasons that are advanced below, a fuller statement of the content of customary international law would probably have to refer to and incorporate aspects of ‘soft law’ and specific UN Security Council resolutions. (iii)

Soft law18

Dating from around the 1980’s, a new type of norm/rule began to emerge in the international legal environment, especially in the fields of environmental protection and human rights. ‘Soft law’ has been defined as comprising both non-legally

16

(1769) Bk 4, chap. V, pp. 66–68. Hunt claims that Blackstone’s view ‘appears to have survived the rise of parliamentary sovereignty. . .’ ibid., at. p. 11 an assertion that is borne out by the work of the Victorian jurist Sir Henry Maine’s work Ancient Law (1931, JM Dent & Sons, London). See however the reservation expressed in R v Jones (Margaret) [2007] 1 AC 136, by Lord Bingham, ‘I would for my part hesitate, at any rate without much fuller argument, to accept this proposition in quite the unqualified terms in which it has often been stated.’ at 155. 17 M Hunt, Using Human Rights Law in English Law (1998, Hart Publishing, Oxford), see ch. 1 and citing Trendtex v Central Bank of Nigeria [1977] QB 529. As Hunt points out, Trendtex appears to go further than Lord Atkin’s remarks in Chung Chi Cheung v The King [1939] AC 160 at 168 which rejected the idea of giving effect to customary international law in cases of conflict with domestic common law. 18 On ‘soft law’ generally, see chapter by A Boyle, ‘Soft Law in International Law-Making’ in (ed. M Evans) International Law (2nd edn., 2006, OUP, Oxford).

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binding instruments developed by States and international organisations (such as resolutions of the United Nations General Assembly) as well as the elaboration of existing treaty standards by non-governmental organisations. In the former instance, Cassese has noted that soft law is likely to be developed where it is difficult for States to reach a sufficient level of consensus that would produce a legally binding agreement.19 As for ‘soft law’s’ function in fleshing out the relevant legal norms, NGOs frequently make reference to evolving state practice (as revealed in legal judgments) and general principles of law that are acknowledged across legal systems. In the field of freedom of expression, two organisations have been particularly active in this elaboration role, namely JUSTICE – The International Commission of Jurists and Article 19.20 The former for example was responsible in collaboration with others for the Siracusa Principles (1984) and Limburg Principles (1986) which attempt to interpret and give substance to the respective statements of principle in the International Covenant of Civil and Political Rights and International Covenant on Economic Social and Cultural Rights.21 For its part, ARTICLE 19 convened a group of experts (alongside the International Centre Against Censorship and the University of Witswatersrand) to produce the Johannesburg Principles on National Security, Freedom of Expression and Access to Information. Another group of experts, the International Law Association convened a conference in Paris in 1984 to agree a set of minimum non-derogable human rights standards that states should observe during states of emergencies. Out of this gathering emerged the Paris Minimum Standards of Human Rights Norms in a State of Emergency. Non-governmental organisations have become increasingly important contributors to human rights standard-setting. Boven has commented approvingly on this participation-enhancing feature of ‘soft law’, bringing as it does representative groups into process whereby international law is shaped.22 Whilst the idea of non-state actors contributing to the shaping of international legal norms is initially attractive in denying a monopoly in this role to nation States and widening the range of parties brought into the process, Boven’s enthusiasm appears to overlook some of the more problematic features of this development. Over time, it is possible for ‘soft law’ norms/rules to crystallize into binding rules of customary law. In the case of the Siracusa Principles this process has

19

A Cassese, International Law (2nd edn., OUP, Oxford) at p. 196. ARTICLE 19 is an NGO that campaigns for freedom of expression and information globally. 21 The Siracusa Principles were drawn up by JUSTICE and the International Association of Penal Law and the Urban Morgan Institute of Human Rights, whilst The Limburg Principles were produced by JUSTICE in association with the University of Limburg and the Urban Morgan Institute of Human Rights, see further F Coomans, C Flinterman, F Grunfield, I Westendorp & J Willems (eds.) Human Rights from Exclusion to Inclusion: Principles and Practice – An Anthology from the Work of Theo Van Boven (2000, Brill, Leiden) at pp. 357–358. 22 T Van Boven, ‘The Role of Non-Governmental Organizations in International Human Rights Standard – Setting: A Pre-Requisite of Democracy’ (1989–1990) 20 Calif W Int’l L J 207, 224. This journal article is reproduced in the collection by Coomans, Flinterman et al. ibid. 20


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arguably begun as evidenced by the fact that they have been published as a UN document23 and have been cited with approval by the Human Rights Committee in its General Comments.24 In 2006, the Special Rapporteur on the promotion and protection of human rights while countering terrorism has referred to the principles as offering ‘important, authoritative guidance as to the meaning of terms contained in the Covenant.’25 Another set of ‘soft law’ norms – the Johannesburg Principles – have attributed an importance to the Siracusa Principles by referring to the latter’s ‘enduring applicability’ in a document also published under the imprimatur of the UN.26 Leaving to one side the substantive content of these various statements of principle, crystallization into legal norm status might be considered problematic on account of the NGOs’ lack of democratic legitimacy. Officials who are appointed to represent State actors in democratic regimes can at least lay claim to some indirect democratic mandate when fulfilling a norm-setting function on an UN or other international body. Moreover, when these officials act in the UN on behalf of the UK, a Government Minister may be questioned in Parliament and asked to account for the stance adopted by the officials. NGOs by contrast lack any democratic mandate to represent the cause they espouse. Indeed, they are often drawn from social elites (lawyers, academics) and liable to capture by sectional interests. Although it is unwise to overgeneralize, the processes by which persons are appointed to serve on behalf of NGOs at gatherings such as Siracusa where ‘soft law’ is created may not always exhibit transparency. What is more, accountability structures within the NGO to the wider membership for the actions and decisions of the representatives may be lacking. With a few commendable exceptions, these troublesome issues around the legitimacy of law-making by NGOs and ‘expert’ committees have tended to escape the critical academic scrutiny that they might be thought to merit.27

23

UN Doc. E/CN.4/1985/4, Annex (1985). The Paris Minimum Standards of Human Rights Norms in a State of Emergency have subsequently been referred to by the Human Rights Committee in General Comment 29, States of Emergency (article 4), UN Doc. CCPR/C/21/Rev.1/add.11 (2001). 24 Human Rights Committee General Comment 29, States of Emergency (article 4), UN Doc. CCPR/C/21/Rev.1/add.11 (2001). 25 (2006) A/61/267 para. 11 footnote 7. See further the comments of Manfred Nowak, UN Special Rapporteur on Torture that the Siracusa Principles contain ‘many valuable references for the interpretation of Art. 4 and are to be taken into consideration. . .’ in UN Covenant on Civil and Political Rights CCPR Commentary (2005, NP Engel, Germany) at p. 87. 26 UN Doc. E/CN.4/1996/39 (1996). 27 Good exceptions include T Meron, The Humanization of International Law (2006, Martinus Nijhoff, Leiden) at p. 392; and A Plomer, The Law and Ethics of Medical Research – International Bioethics and Human Rights (2005, Cavendish, London) at pp. 4–6 specifically querying the legitimacy of the Helsinki Declaration adopted by the experts belonging to the World Medical Association. Plomer notes that The Helsinki Declaration has since been used to formulate standards in the EU Clinical Trials Directive 2001/20/EC and referred to by US courts to ascertain the content of international legal norms.

30


(iv) UN Security Council Resolutions Article 25 of the UN Charter states that the members of the UN ‘agree to accept and carry out the decisions of the Security Council in accordance with the Charter.’28 Whatever doubts may exist about the status of ‘recommendations’ made by the Security Council and ‘decisions’ made under other Chapters of the UN Charter, in respect of those resolutions adopted under Chapter VII of the UN Charter (Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression), there can no doubt of their binding effect on UN member states.29 It is possible for these resolutions to contribute to the formation of customary international law where they encapsulate a consensus among states and evidence of opinio juris is present.30 The UN Security Council has figured as a prominent player in the international community’s response to the events of September 11, 2001. By Resolution 1373, it created the Counter Terrorism Committee whose remit was to monitor States’ implementation of Security Council and called upon UN Member States to implement counter-terrorist measures on a number of fronts.31 Of central importance to the freedom of expression and association issues raised in this book are UN Security Council Resolutions 1456 and 1624. The text of these resolutions are considered in detail below. To begin with however, it is necessary to consider the relevant provisions of international human rights law, specifically the International Covenant on Civil and Political Rights (ICCPR) and the jurisprudence of the Human Rights Committee.

2.2.1

The International Covenant on Civil and Political Rights (ICCPR)

The treaty recognises two distinct sorts of explicit limitations applying to civil and political freedoms. The first set comprise those ‘claw-back’ clauses that limit a specific set of rights (such as freedom of thought, conscience and religion, 28

The powers of the Security Council under the UN Charter are set out in Article 24. For discussion, see B Simma, The Charter of the United Nations (2002, OUP, Oxford) Vol. 1 at pp. 442–452. 29 See thus Simma ibid., and Australian Law Reform Commission, Fighting Words (2006, ALRC, Canberra) at 5.8. 30 R Higgins, Problems & Process: International Law and How We Use It (1994, Clarendon Press, Oxford) at ch. 10 where the potential contribution of UN General Assembly resolutions to the formation of customary international law is discussed. 31 Resolution 1373, September 28, 2001. For commentary see E J Flynn, ‘The Security Council’s counter terrorism committee and human rights’ [2007] HRLRev. 371 and P C Szasz ‘The Security Council Starts Legislating (2002) 96 Am. Jo. Intl L 901. The Resolution which covered inter alia international cooperation, financial tracking and border security was considered problematic on account of its failure to address countervailing human rights concerns. See further UN Security Resolution 1566 (S/RES 1566 (2004)).


31

expression, assembly and association) in non-emergency situations.32 The nonabsolute nature of these rights can be considered to reflect the sense of a balance that must, outside of emergency situations, be drawn between individual rights and freedoms on the one hand and community/state interests on the other. A second set of limitations are labelled ‘derogations’ and apply in emergency situations in accordance with Article 4.33 This states: 1. In a time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from articles 6, 7, 8 (paras. 1 and 2), 11, 15, 16 and 18 may be made under this provision. 3. Any State party to the present Covenant availing itself of the right of derogation shall immediately inform the other States parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

As Duffy has noted, the international human rights framework continues to apply at this time.34 Specifically, certain non-derogable rights (such as the rights to life, freedom from torture and slavery) remain protected during emergencies. However, it is also true that a broader range of human rights (including freedom of expression and association) may be temporarily curtailed, subject to specific safeguards. Meron has claimed that the open-endedness of Article 4 constitutes one of the ‘principal weaknesses’ of the ICCPR.35 In his view, the broad discretion enjoyed by states to declare a public emergency has been used to deny human rights in practice. Against this line of analysis, it is possible to highlight the overarching commitment in the treaty to the notion of proportionality and the need for limits to be tailored to cause minimal interference with liberty. This feature points up the fact that States which are minded to curtail individual freedom should first consider whether the imposition of one or more ‘claw-back’ clauses would be sufficient to safeguard the collective interest that is being threatened. Only where resort to the 32

The term ‘claw-back’ is used by Rosalyn Higgins in ‘Derogations under Human Rights Treaties’ (1976–1977) 48 BYIL 281 to mean a clause that ‘permits, in normal circumstances, breach of an obligation for a specified number of public reasons.’ at 281. 33 D McGoldrick, ‘The Interface between Public Emergency Powers and International Law’ (2004) Int Jo. of Constitutional Law 380 and see more generally R Higgins, Ibid., and J Hartman, ‘Derogations from Human Rights Treaties in Public Emergencies’ (1981) 22 Harv. Int’l L J 1. Whilst acknowledging certain textual differences, Higgins has suggested that Article 4 is ‘clearly modelled’ on Article 15 of the European Convention on Human Rights, at 286. 34 H Duffy, The ‘War on Terror’ and the Framework of International Law (2005, CUP, Cambridge), see especially pp. 290–301. 35 T Meron, Human Rights Law-Making in the United Nations (1986, Clarendon Press, Oxford) pp. 86–92.

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‘claw-back’ clause would be unlikely to safeguard the endangered collective interest, might it be appropriate to declare exceptionally a state of emergency.36 A thorny issue to consider in the context of the current ‘war on terror’ – given its lack of a clear end point – is how the requirement of a ‘temporary’ curtailment set out in Article 4 is satisfied.37 As long as the perceived threat of a terrorist act is present, states that intend to implement drastic reductions of personal liberty will be tempted to plead an ongoing emergency. Precedents for such a stance are well known. In 1999, the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities reported that Israel’s state of emergency which was declared in 1948 had operated continuously ‘notably in the occupied territories. Syria’s state of emergency declared in 1963 was also continuing, alongside those declared by Egypt (1981) and Algeria (1992).38 A subsequent report prepared by the Office of the United Nations High Commissioner for Human Rights in 2005 revealed that Algeria, Egypt, Israel and Syria had maintained their respective states of emergency and that they had been joined since 2003 by Iraq, Jamaica, Nepal and Peru.39 This pattern reveals not merely the normalcy of states of exception40 but also weaknesses in the oversight mechanisms of international human rights law. The actual length of any emergency appears to be determined to a significant extent by reference to domestic political calculations. The use of Article 4 by existing office holders to close off avenues of political dissent and thereby maintain their hold on power reveals that counter-terrorism measures can be exploited for questionable motives. The record of the UK in respect of derogation notices since ratification of the ICCPR is revealed in the Human Rights Committee’s Sixth Periodic Report on the UK. There have been three sets of derogation to the UK’s ICCPR treaty commitments since 1976. The first of these was in response to the bombing campaign of Irish terrorist groups and entailed derogations to Articles 9, 10(2), 10(3), 12(1), 14, 17, 19(2), 21, 22. This derogation was withdrawn in August 1984.

36

D McGoldrick, ‘The Interface between Public Emergency Powers and International Law’ (2004) Int Jo. of Constitutional Law 380, 383–385. Equally, having declared an emergency, states should review at regular intervals whether lesser measures such as those in the ‘claw-back’ clauses would fulfil the need for curtailed liberty. For an example in practice, see the UK’s withdrawal of derogation notice in August 1984. The notice had been given in May 1976 in relation to the IRA terrorist campaign. Significantly, the withdrawal notice expressly denied that the UK believed the emergency to be over, rather that other measures were more suited to respond to the current situation, see UN Doc. CCPR/C/SR.594, s. 3. This is discussed in McGoldrick at 384–385. 37 The Human Rights Committee has stressed that derogating measures under Article 4 must be ‘exceptional and temporary’, General Comment No. 29: Derogations during a state of emergency (Article 4) [2001] UN Doc. HRI/GEN/1/Rev.6 (2003). 38 UN Doc. E/CN.4/Sub.2/1991/31. See further T Meron Human Rights Law-Making in the United Nations (1986, Clarendon Press, Oxford) ch. 3. 39 E/CN.4/Sub.2/2005/6. 40 As Novak argues in UN Covenant on Civil and Political Rights CCPR Commentary (2005, NP Engel, Germany) at p. 84.


33

A second derogation was entered in December 1988 again for reasons to do with Irish terrorism in respect of Article 9(3). This was terminated in February 2001. Finally, after the attacks on the United States on September 11, 2001, a notice of derogation was entered in respect of Article 9. This derogation was terminated in March 2005.41 This set of derogations indicates that the most frequent casualty of states of emergency in the UK has been the right to liberty and freedom from arbitrary arrest or detention. At the same time however, it is important to recall that freedom of expression, assembly and association were curtailed in 1976. The United Kingdom’s notice of derogation indicated that concerns about public disorder lay behind this aspect of the notice.42 At the time of writing, there is no notice of derogation entered under Article 4(3) of the ICCPR in respect of any Covenant right. Thus, as a matter of international law, any current restrictions on expression, assembly and association fall to be justified in terms of the Covenant’s claw-back clauses. It is to these more ‘usual’ limits that attention is now given. (i) ‘Claw-back’ clauses affecting freedom of expression Under the ICCPR, freedom of expression (Article 19) and the linked freedom of association (Article 22) are non-absolute and may be limited where the restricting measure is ‘prescribed by law’ and ‘necessary in a democratic society’ for certain, enumerated purposes. In respect of Article 19, Meron has described the broad range of limiting provisions as emasculating43 although he argues that this should not really be considered surprising given that freedom of expression was restricted to varying degrees in many countries at the time the ICCPR was drafted.44 At first glance, the formulation of the right to free expression in Article 19(2) is rendered in expansive terms. It states: Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally in writing or in print, in the form of art, or through any other media of his choice

This is qualified by Article 19(3) which provides that the exercise of Article 19(2) rights carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others (b) For the protection of national security or of public order (ordre public), or of public health or morals.45

41

CCPR/C/GBR/6 (2007) and see Table 6 of this document. Ibid. 43 T Meron, Human Rights Law-Making in the United Nations (1986, Clarendon Press, Oxford) at p. 115. 44 Ibid. 45 This is a narrower set of limiting purposes than is found in Article 10(2) of the European Convention on Human Rights. Under the equivalent limiting clauses in Articles 21 & 22 of ICCPR, there is the further requirement that the limiting measures be ‘necessary in a democratic society’. 42

34


Notwithstanding the inherent width of limitation clauses such as ‘public order’ (understood in the French sense of ordre public – rules that maintain the proper functioning of society), ‘morals’, national security’ and ‘the rights and freedoms of others’, the Human Rights Committee in its General Comments has made clear that restrictions in domestic law must be narrowly drawn and ‘not put in jeopardy the right itself’.46 Moreover, the non-binding Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights that elaborate upon the meaning of the Covenant have set out a narrow interpretation of the treaty’s limitation clauses.47 Thus, in relation to the general requirement that a restriction is ‘necessary in a democratic society’, Siracusa Principle 20 states that The burden is upon a state imposing limitations so qualified to demonstrate that the limitations do not impair the democratic functioning of the society.48

The Siracusa Principles also state that the notion of ‘ordre public’ encompasses respect for human rights and that its requirements must be interpreted ‘in the context of the purpose of the particular right which is limited on this ground.’49 One way of reading the combined effect of these provisions is to suggest that, in view of the central importance of freedom of expression – especially in matters of political dissent – to the democratic functioning of the state, the scope for limiting the right is accordingly substantially narrowed with an onerous obligation on the state to show that the restriction is necessary. Where the limitation is grounded alternatively in national security/public safety considerations, the Siracusa Principles assert that neither can be used as a pretext for imposing ‘vague or arbitrary limitations.’50 Whilst controls on expressive activity that directly incites acts of terrorism would appear to be justified as falling within one or more limbs of Article 19(3) (and possibly the prohibition in Article 20 on the advocacy of national, racial or religious hatred discussed briefly below), the United Kingdom’s criminalization of indirect incitement to acts of terrorism potentially raises more serious issues regarding compatibility. Where for example a speaker seeks to justify or condone or glorify the actions of others engaged in acts of terrorism, the ICCPR’s general demands of legal certainty and proportionality would seem to inhibit the scope of

46

Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies – Note by the Secretariat HRI/GEN/1/Rev.7, General Comment No. 10: Article 19 (Freedom of opinion) 12 May 2004. And see thus M Nowak, The UN Covenant on Civil and Political Rights (1993, Engel, Kehl) pp. 394–396. 47 UN Doc. E/Cn.4/1984/4/Annex (1984) and reproduced at (1985) HRQ 3–14. 48 Ibid. Principle 20. 49 Ibid. Principle 23. 50 Ibid. Principles 31 & 34 respectively.


35

national criminal laws.51 It is significant therefore that the UN Special Rapporteur Martin Sheinin has criticised the UK’s new indirect incitement law on the ground of lacking clarity on the issue of mens rea.52 The demands made by human rights instruments in this context are explored in greater depth in Chap. 4 of this book where particular attention is paid to the Council of Europe’s Convention on the Prevention of Terrorism. Before moving away from Article 19(3) altogether however, the contribution made by soft law is also worth recalling. Principle 6 of the Johannesburg Principles on National Security, Freedom of Expression and Access to Information is headed ‘Expression That May Threaten National Security’ and requires that, where expression is punished on account of the threat posed by it to national security, states need to show that the speech in question is (a) . . . intended to incite imminent violence; (b) . . . is likely to incite such violence; and (c) there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.

S. 1 of the United Kingdom’s Terrorism Act 2006 ‘encouragement of terrorism’ penalizes speech in a much broader range of circumstances than Principle 6 of the Johannesburg Principles deems acceptable. A detailed analysis of s. 1 follows in Chap. 4 of this monograph. For present purposes, it can be noted that criminal liability arises even though the ‘encouragement’ does not produce any danger whatsoever that a terrorist act was likely to be committed. A Covenant provision that directly prompts states to censor expression is set out in Article 20. This declares: 1. Any propaganda for war shall be prohibited by law 2. Any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

At the same time, the framing of an Article 20 restriction must take account of freedom of expression in Article 19 and be rendered consistent with Article 19.53 This would seem to prevent reliance on Article 20 when penalizing the mere holding of opinions and, possibly even, the ‘glorification’ of terrorist acts where no direct incitement is present.

51

This point is made by the OSCE. See Background Paper on Human Rights Considerations in Combating Incitement to Terrorism and Related Offences (2006, Vienna, OSCE) at p. 4. 52 Protecting human rights and fundamental freedoms while countering terrorism (2006) A/61/267 para. 7. 53 J P Laborde and M DeFeo, ‘Problems and Prospects of Implementing UN Action against Terrorism’ [2006] J Int Criminal Justice 1087, 1094–1096; M Nowak, The UN Covenant on Civil and Political Rights (2005, Engel, Germany) at p. 477.

36


One overriding difficulty that undermines efforts at bringing greater clarity and hence predictability into the law in this area is the failure at international law to agree upon a universally accepted definition of terrorism.54 If states are left free to produce their own definitions, then, as Kent Roach has argued, we should not be surprised to see ‘overly broad’55 versions of the term that impinge upon dissent and civil disobedience, particularly in nations where a tradition of dissent is either not developed at all, or where individual rights to expression are routinely subordinated to community interests in national security, public order and safety, morals etc. (ii) ‘Claw-back’ clauses affecting freedom of association Siracusa Principle 20 informs states that they have the burden of demonstrating that limits imposed on individual freedom do not impair the democratic functioning of society. This provision would seem to bear directly on the practice of states to proscribe associations considered to be linked to, or supportive of, terrorist activities One of the ICCPR’s specific limiting grounds is national security. According to Siracusa Principle 29, this ground may be invoked in aid of limiting measures only when (the measures) . . . are taken to protect the existence of the nation or its territorial integrity or political independence against force or the threat of force.56

Siracusa Principle 31 also asserts that national security cannot be pleaded as a ‘pretext for imposing vague or arbitrary limitations.’ The UN Special Rapporteur on the promotion and protection of human rights while countering terrorism voiced his disquiet in 2006 at recent counter terrorism legislation in a number of countries which, on account of their vague and broad definitions of terrorism, have the potential to ‘inhibit the work of associations that do not pursue terrorist tactics.’57 Nonetheless, a municipal authority minded to limit freedom of association in accordance with international law may fall back on the enumerated exceptions in Article 22 of the ICCPR. These comprise national security, public safety, public order (ordre public), the protection of health or morals and the protection of the rights and freedoms of others. This is a more extensive list than exists in respect of Article 19(3) as ‘public safety’ does not feature in the latter. Plainly, those organisations which have as their object the violent overthrow of the state may be lawfully proscribed under Article 22’s claw-back provisions. The category of ‘public morals’ for example legitimises restrictions in cases where an organisation threatens fundamental community values (such as a commitment to resolving 54

K Roach, ‘The Case for Defining Terrorism With Restraint and Without Reference to Political or Religious Motive’ in (eds. A Lynch, E McDonald, & G Williams) Law and Liberty in the War on Terror (2007, The Federation Press, Sydney). See also C Walker, ‘The legal definition of ‘‘terrorism’’ in United Kingdom law and beyond’ [2007] PL 331. 55 Ibid., at p. 41. 56 UN Doc. E/Cn.4/1984/4/Annex (1984). 57 Protecting human rights and fundamental freedoms while countering terrorism (2006) A/61/267 para. 22.


37

difference through non-violent, discursive means). The ‘rights and freedoms of others’ is expressly acknowledged in Siracusa Principle 35 to extend beyond the rights recognised in the ICCPR whilst ‘public order’ encompasses those restrictions that are needed to ensure a well-functioning and orderly (non-violent) society. Earlier, reference was made to Article 20 of the ICCPR. Uniquely, this provision does not articulate an individual right but rather mandates states to curtail the exercise of other rights such as freedom of expression and association where these freedoms are used to advocate ‘national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.’58 As terrorist organisations may well have (implicit) objectives that include the stirring of some to the hatred of others on national, racial or religious grounds, Article 20 envisages that states will have in place restrictions to outlaw these kinds of associations.59 Finally, Article 5 of the ICCPR prevents interpretation of the treaty’s provisions in a manner that allows persons to engage in activities that are aimed at the destruction of the rights of others. This provision was invoked by the Human Rights Committee in M.A. v Italy to rule inadmissible a complaint brought in respect of a conviction for reconstituting a fascist party that had been proscribed under the Italian Penal Code.60 Corresponding to Article 17 of the European Convention of Human Rights,61 Article 5 has a reach going well beyond freedom of association to encompass inter alia Articles 18, 19, 21, 25 as well as the rights of minorities under Article 27. Notwithstanding M.A. v Italy, Nowak has argued that Article 5 is unlikely to play a frontline role in any ‘militant-democracy’ strategy by the state, ample scope for interference with the activities of anti-democratic forces and their supporters being provided by the range of claw-back clauses found elsewhere in the ICCPR.62

58

See Nowak’s comment that Article 20 is an ‘alien element in the system of the Covenant’ at M Nowak, The UN Covenant on Civil and Political Rights (2005, Engel, Germany) at p. 468. For an example of a Human Rights Committee opinion on the scope of Article 20, see JRT and the Western Guard Party v Canada 104/81. There, a prohibition on members of an anti-Semitic association preventing the use of the Canadian public telephone system was deemed to be consistent with Article 20(2). 59 Nowak ibid., suggests that the ‘formation and activities of associations whose purposes conflict with Art. 20 must be prohibited.’ (emphasis added) at p. 505. 60 117/81 The decision has been criticised for failing to examine the merits of Italy’s restriction on Article 22 freedoms, see D McGoldrick, The Human Rights Committee – its role in the development of the International Covenant on Civil and Political Rights (1991, Clarendon Press, Oxford) at pp. 166–167. 61 The wording of the two provisions is identical. For further discussion of Article 17 ECHR, see Chap. 4. 62 M Nowak, The UN Covenant on Civil and Political Rights (2005, Engel, Germany) at pp. 116–117.

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2.2.2

UN Security Council Resolutions 1456 (2003) & 1624 (2005)

The ambiguous nature of the international legal system’s response to terrorism is nowhere better illustrated than the tranche of UN Security Council resolutions that followed the events of September 11, 2001. Thus Resolution 1373 which created the Counter Terrorism Committee failed to refer to relevance of human rights considerations in framing counter terrorism policy. This omission was subsequently addressed in later Resolutions but, as shall be shown below, there is an argument that this correction was achieved at the expense of conceptual clarity. Underpinning all of these developments, the absence of an internationally agreed definition of ‘terrorism’ has allowed governments around the world to penalize a variety of forms of political dissent.

2.2.2.1

Resolution 145663

Adopted in January 2003, Resolution 1456 reaffirms that . . . since terrorist and their supporters exploit instability and intolerance to justify their criminal acts the Security Council is determined to counter this by contributing to a peaceful resolution of disputes and by working to create a climate of mutual tolerance and respect

and requires that 1. All States must take urgent action to prevent and suppress all active and passive support of terrorism 2. . . . 3. States must bring to justice those who finance, plan, support or commit terrorist acts . . .

Resolution 1456 does not authorize states to violate existing provisions of international law. 6. States must ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee and humanitarian law.

There are several points worth noting in Resolution 1456. The exhortation that ‘urgent action’ be taken to prevent and suppress all passive support of terrorism is astoundingly wide. A political party holding office that was minded to undermine its political opponents could invoke this feature of Resolution 1456 to quash a potentially broad range of opponent parties’ activities. Although intended to act as a device to rein in speech-repressive measures, the later reference in para. 6 to ‘international law’ serves merely to re-admit existing ambiguities in the ICCPR to any evaluation of the terms of the Resolution. As a result, Resolution 1456 could be said merely to beg the question ‘What forms of control on passive support for terrorism are consistent with international human rights law?’ 63

S/RES/1456 (2003).


2.2.2.2

39

Resolution 162464

The text of this resolution addresses more directly the matter of the incitement of terrorist activity. The Preamble starts thus: Condemning . . . in the strongest terms the incitement of terrorist acts and repudiating attempts at the justification or glorification (apologie) of terrorist acts that may incite further acts.

At the same time, the terms of Article 19 of the Universal Declaration of Human Rights and Article 19 of the ICCPR are expressly recalled. Restrictions on freedom of expression are to be confined to those ‘provided by law and . . . necessary on the grounds set out in Article 19(3) of the ICCPR,’ Paras. 1 and 3 set out more specific details on the steps to be taken by states as follows: 1. Calls upon all states to adopt such measures as may be necessary and appropriate and in accordance with their obligations under international law to (a) Prohibit by law incitement to commit a terrorist act or acts; (b) Prevent such conduct; (c) Deny safe haven to any such persons with respect to whom there is credible and relevant information giving serious reasons for considering that they have been guilty of such conduct 2. . . . 3. Calls upon States to continue international efforts to enhance dialogue and broaden understanding among civilizations, in an effort to prevent the indiscriminate targeting of different religions and cultures, and to take all measures as may be necessary and appropriate and in accordance with their obligations under international law to counter incitement to terrorists acts motivated by extremism and intolerance and to prevent the subversion of educational, cultural, and religious institutions by terrorists and their supporters;

It is right to recall that Para. 4 reminds states of limits upon possible actions under Paras. 1 & 3. This states: States must ensure that any measures taken to implement paras. 1, 2 & 3 of this resolution comply with all of their obligations under international law, in particular international human rights law, refugee law, and humanitarian law;

Any assessment of Resolution 1624 needs to take account of the wider political context in which it was conceived. The UK Prime Minister, Tony Blair, was a key player behind the scenes at the UN Security Council in drafting Resolution 1624 and getting it passed.65 Prior to coming to New York to address the Security Council in September 2005, the Prime Minister had signalled his government’s

64

S/RES/1624 (2005). C Walker ‘The legal definition of ‘‘terrorism’’ in United Kingdom law and beyond’ [2007] PL 331, 333.

65

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desire to criminalize the glorification of terrorism as part of the UK Government’s response to the London tube and bus bombings of July 7, 2005.66 Fearful in the main of the consequences on impressionable Muslim minds, the government sought to close down websites such as that run by Mohammed al-Masari, a British-based Saudi dissident, then based in London. This site hosted footage of the killing of three Black Watch soldiers in Iraq by a suicide bomber and, elsewhere, published material that referred to Al-Qaeda and Iraqi insurgents in positive terms In late August 2005, Masari fled the UK and his website ceased to be accessible.67 Once the UN Security Council had approved Resolution 1624 and back home in the UK, Prime Minister Blair played what one commentator has called the ‘neat trick’ of pointing, inter alia, to the terms of Resolution 1624 by way of justification for tightening domestic incitement law in what was to become s. 1 of the Terrorism Act 2006. After all, the mouthpiece of the international community on security matters had by that resolution ‘called for’ the prohibition by law of incitement to commit a terrorist act.68 Considered in textual terms, Resolution 1624 fits the pattern identified previously of pointing simultaneously in a number of conflicting directions and offering national authorities a broad discretion as the form of any implementing measures. In the case of the UK, the Preamble’s initial reference to ‘repudiating attempts at the justification of or glorification (apologie) of terrorist acts that may incite further acts’ sets the context for the subsequent instruction to ‘prohibit by law incitement to commit a terrorist act or acts.’ Read this way, the criminalization of ‘indirect’ incitement is perfectly consistent with the Resolution. A sense of the outer limits of the prohibition on incitement is supplied by the notion of ‘international human rights obligations.’ As was argued earlier, the clearest statement of the manner in which international human rights norms might constrain the reach of new criminal laws is to be found in soft law statements such as the Siracusa and Johannesburg Principles rather than the provisions of the ICCPR although the former, raise specific legitimacy concerns.

2.3

Conclusion

The apparent marginalization of human rights law in the immediate aftermath of 9/11 has given way to increasing emphasis, as time unfolds, on the requirements that counter terrorist measures be executed consistent with human rights obligations. Rejection of the dichotomy between human rights and security, in favour of the complementarity of respect 66

The full text of the statement can be read at http://politics.guardian.co.uk/terrorism/story/ 0,15935,1543385,00.html. 67 See I Cram, ‘Regulating the media: some neglected freedom of expression issues in the United Kingdom’s counter-terrorism strategy’ (2006) 18 Terrorism & Political Violence 335. 68 C Walker ‘The legal definition of ‘‘terrorism’’ in United Kingdom law and beyond’ [2007] PL 331, 333.

2.3 Conclusion

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for human rights and an effective counter-terrorism strategy is now commonplace. It is thus questionable whether 9/11 will have led to a lasting sea change in attitude to the application of human rights law on the international sphere. H Duffy, The ‘War on Terror’ and the Framework of International Law (2005) at pp. 377–8

The aim in writing this chapter has been to examine developments in international law as they impact, or might potentially impact, on the regulation of freedom of expression at the national level. Duffy has suggested that there is renewed commitment in international law to the centrality of human rights in an effective counterterrorism policy. Koskenniemi too has articulated a positive vision of the role of international law in circumscribing the resort to naked political power and protecting the weak and marginalized.69 This chapter has cast doubt on that claim in so far as it relates to dissenting speech and unpopular political associations. It has queried Held’s claim of the ‘enlarging normative reach’ of international legal rules70 and suggested that the regulation of minority expression at the municipal level will remain crucial. Looking at the content of customary international legal norms, the argument here has been that international legal instruments constitute a weak and inadequate framework for defending dissenting expression and minority political associations. Apart from the open-endedness of the ICCPR’s Article 4 ‘public emergency’ derogation and the width of more generally applicable ‘claw-back’ limitations, recent sets of UN Security Council resolutions such as Resolution 1624 have attempted Janus-like to face in two opposing directions, appearing both to repudiate speech that condones or justifies ‘terrorist’ action whilst also upholding the importance of freedom of expression. The ambiguity is of course highly convenient to member states such as the UK. The very absence of clarity has been exploited domestically to advance the Blair Government’s own speechrepressive domestic agenda, a feature made all the more sinister because of the UK’s role in drafting Resolution 1624 in the first place.

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M Koskenniemi, The Gentler Civilizer of Nations: The Rise and Fall of International Law (2002, CUP, Cambridge). A reassessment of the contribution of international law (and of international lawyers) that recognises the tendency of states to pursue their foreign policy objectives regardless of international human rights and humanitarian law is made by H Charlesworth in ‘Saddam Hussain: My Part in His Downfall’ (2005) 23 Wis Int’l L J 127. 70 D Held, Global Covenant – The Social Democratic Alternative to the Washington Consensus (2004, Polity Press, Cambridge) at p. 131.

Chapter 3

The Regulation of Political Association and Possession of Documents Under Domestic Counter-Terrorist Laws

3.1

Introduction

In the previous chapter I argued that international law offered at best an equivocal measure of protection on unpopular expression and minority associations. The indeterminacy of international legal norms in general and the failure of the international community to agree upon a comprehensive definition of terrorism have meant that national legal systems remain centre stage in the articulation, enforcement and policing of counter-terrorist strategies.1 There is evidence however at the municipal level of lateral migration of legal norms from one jurisdiction to another. Thus, aspects of the UK’s Terrorism Act 2000 have been drawn upon and adapted for domestic use by governments and legislatures in Australia, Canada, Indonesia, Hong Kong and even the United States.2 The focus in much of the rest of this book will be upon domestic restraints upon freedom of expression, restraints that have been pressed into service in the wider struggle against terrorism. Thus, subsequent chapters describe and analyse curbs on the incitement and glorification of terrorism, limits on the media’s newsgathering activities (including those imposed via Official Secrets legislation and extra-legal mechanisms) as well as duties to assist criminal investigations by supplying information, disclosing sources and complying with production orders. Since 2005, freedom of information legislation has been in force in the UK and it remains to be seen whether these provisions have proved effective in providing access to official information and facilitating a

1

On the need to agree a comprehensive definition of terrorism, see B Saul, Defining Terrorism in International Law (2006, OUP, Oxford) and C Walker, The legal definition of terrorism in United Kingdom law and beyond’ [2007] PL 331. 2 K Roach, ‘The post-9/11 migration of Britain’s Terrorism Act 2000’ in (ed. S Choudhry) The Migration of Constitutional Ideas (2006, CUP, Cambridge); I Cram, ‘Resort to foreign constitutional norms in domestic human rights jurisprudence with reference to terrorism cases’ (2009) 68 CLJ 118.

I. Cram, Terror and the War on Dissent, DOI: 10.1007/978‐3‐642‐00637‐1_3, # Springer -Verlag Berlin Heidelberg 2009

43

44

3 The Regulation of Political Association and Possession of Documents

degree of informed scrutiny over the government’s counter-terrorism policy. Accordingly, a section of materials towards the end of this monograph will be devoted to this topic. This chapter commences the analysis of restraints upon freedom of expression by considering two sets of lower profile controls: namely the regime of proscription set out under counter-terrorism laws and offences concerned with the possession of materials likely to be useful to terrorists. Both sets of restrictions share a common disruptive rationale, seeking to prevent future terrorist activity by outlawing facilitative conduct. Each fits within the vigorous defence of democratic institutions referred to as ‘militant democracy’ whose features were briefly sketched in the introductory chapter. One of the themes in this chapter is that this strong-arm defence of democracy is fundamentally in tension with the tenets of liberal constitutionalism under which a popularly-elected, responsible government is constrained by the overarching doctrines of the rule of law (understood as generally applicable laws that are stated publicly with a degree of precision) and the separation of powers. The value of individual autonomy looms large in liberal constitutionalism and accordingly, the preservation of individual rights and freedoms is a vital component of constitutional design.3 This accords with the declaration of the Parliamentary Assembly of the Council of Europe in 2002 that All measures taken by the state to fight terrorism must respect human rights and the principle of the rule of law, while excluding any form of arbitrariness, as well as any discriminatory behaviour.4

Within this normative framework, my general argument will be that where the values and institutions of the liberal state are challenged by the opponents of democracy (and I include in this category the advocates of sharia law) but not seriously threatened with imminent collapse, it is preferable to maintain to the fullest possible extent core political freedoms for the defenders and enemies of democracy alike. I referred earlier in Chap. 1 to the work of Robert Post on active self-rule and democratic legitimacy which sets out a basis for tolerating a wide range of speech content. For Post, the alienation and loss of autonomy experienced by censored speakers and their audiences can only be considered legitimate when the conditions of public discourse and active self-rule are themselves under grave threat from the speech in question. The initial assumption from which this chapter proceeds is that the offences of proscription and possession impact adversely upon freedom of expression. Such an assumption requires some elaboration. Starting with proscription, it is possible to identify at least three deleterious effects upon freedom of expression. First, from the perspective of the individual member or supporter, the dissolution of a political 3

For an overview of liberal constitutionalism, see M Loughlin, Public Law and Political Theory (1992, Clarendon Press, Oxford) at ch. 5. See in the current context D Kostakopolou, ‘How to do things with security post 9/11’ (2008) 28 OJLS 317 for discussion of the tensions in liberal democracies as they confront forms of international terrorism. 4 Resolution 1271, (2002) January 24, Parliamentary Assembly, Council of Europe.

3.2 The Revised Definition of Terrorism in the UK

45

association denies such persons an opportunity or forum in which they might participate in the formulation of party policy and to debate political ideas with like-minded individuals. The individual is also prevented qua party member from communicating with others outside the party and being identified publicly with the banned organisation. The cost here may be expressed in terms of personal intellectual development and self-fulfilment. Second, closure of a party also prevents the channelling of political views and, more broadly, communication to the electorate of a political programme offering a rival vision of societal progress. Finally, and following on from the previous effect of proscription, the audience interest (as represented by voters) suffers as members of the electorate are deprived of the opportunity to evaluate and vote for this rival programme. In the case of provisions criminalizing the possession of documents and information that might be useful to a terrorist, it is possible to construct scenarios in which the self-fulfilment of individuals and the informed scrutiny of governmental conduct are undermined, although much will hinge, as matter of practice, upon the scope of the ‘reasonable excuse’ defence that allows defendants to introduce evidence about a lawful purpose to explain possession. This and other features of the offence are considered in more detail below. For the time being, it can be noted, as a point of principle, that much material covered by the possession offence will be dual-use, having a perfectly legitimate use or uses alongside an unlawful use. The proscription and possession offences draw upon a revised and expanded definition of terrorism in UK law which provides the staring point of this chapter. Specifically, attention is devoted to the inclusion of a political/ideological/religious motive requirement in UK law. I suggest that the human rights arguments raised by this requirement have been neglected in this jurisdiction and, taking as my prompt, the Ontario Superior Court ruling in Khawaja consider whether motive is a necessary or counterproductive component of the liberal state’s definition of a terrorist.

3.2

The Revised Definition of Terrorism in the UK5

The platform for the major extension in counter-terrorism powers is to be found in the revised definition of terrorism set out in the Terrorism Act 2000 (hereafter TA 2000). The Act replaced previous terrorism legislation (Prevention of Terrorism (Temporary Provisions) Act 1989, hereafter PTA) that had to be renewed by Parliament on an annual basis.6 The TA 2000 establishes a permanent basis for 5

See for background, The Definition of Terrorism – A Report by Lord Carlile of Berriew QC Independent Reviewer of Terrorism Legislation Cm 7052 (2007, HMSO, London). 6 On the background the 2000 & 2001 reforms, see C Walker The Anti Terrorism Laws (2002, Blackstones, London). A brief overview of these measures as well as legislative developments up to the Terrorism Act 2006 is provided by the same author in ‘The United Kingdom’s AntiTerrorism Laws: Lessons for Australia’ in A Lynch, E McDonald & G Williams (eds.), Law & Liberty in the War on Terror (2007, Federation Press, New South Wales).

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counter-terrorism measures contained therein. Previously, the PTA had defined terrorism as ‘the use of violence for political ends and includes any use of violence for the purpose of putting the public or any section of the public in fear.’7 The violence in question had to be connected to matters in Northern Ireland or international terrorism. The new definition provided in s. 1 of the TA 2000 refers more broadly to the use or threat of ‘action’ (serious violence against person, serious damage to property, endangering a person’s life, creating a risk to the health or safety of the public or a section of it, seriously interfering with/disrupting an electronic system)8 designed to influence the government or to intimidate the public or a section of it for the purpose of advancing a political, religious or ideological cause. It expressly includes actions outside the United Kingdom directed against the citizens and governments of other nations.9 Section 34 of the Terrorism Act 2006 later extended the range of targeted organisations against which ‘action’ is used or threatened to include ‘international governmental organisations.’10 Where firearms or explosives are used, it need not be shown that the action is designed to influence the government, international government organisation or to intimidate the public or a section of the public.11 The reference to an ideological/religious cause means that attacks on, or threats against, non-state targets such as companies engaged in research on live animals or abortion clinics now clearly fall within the definition of terrorism, responding in part to the violent activities of UK-based animal rights activists and Scottish nationalist extremists in the 1990’s. The definition also catches acts and threats that are not violent in themselves but could pose serious damage to public safety or the health of a section of the public as in the act (or threatened act) of interfering with public power/water supplies. The reference to the suspected terrorist’s purpose in s. 1 has been replicated in the counter-terrorism laws of other jurisdictions including Canada and Australia, generating in the process considerable controversy. Critics suggest that this element encourages law enforcement agencies to engage in the selective profiling of persons on the basis of their political and/or religious beliefs. For example, Canadian academic (and subsequently Minister of Justice) Irwin Cotler has claimed that the criminalization of motive runs the risk of politicizing the investigative and trial processes while chilling the expression of ‘‘identifiable groups’’ and marks a departure from general principles of criminal law in this regard.12

In Australia, the former Chief Justice Gerard Brennan expressed the concern that the Australian law ‘may easily be misunderstood as targeting the entire group who 7

S. 20(1), PTA 1989. S. 1(2), TA 2000. 9 S. 1(4), Terrorism Act 2000. 10 S. 34, Terrorism Act 2006. 11 S. 1(3), Terrorism Act 2000. 12 I Cotler, ‘Terrorism, Security and Rights: The Dilemma of Democracies’ in E Mendes & D McAllister (eds.) Between Crime and War: Terrorism, Democracy and the Constitution (2002, Thompson Carswell, Toronto) at pp. 35–6. 8


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wish to advance the religious cause of Islam.’13 Anxieties about the inclusion of motive in counter-terrorism legislation and some possible defences of the same will be taken up and addressed shortly. From an evidential perspective, it is worth noting that the decision to include a motive element paradoxically makes the task of prosecutors more onerous, adding as it does a further element of a terrorist crime that must be proved separately. As was noted above, the need to establish the motive behind an alleged terrorist activity was already present in domestic law prior to 2000 under the PTA where the violence had to be used for a political purpose in connection with the affairs of Northern Ireland or international terrorism. Whether the expanded list of motives that now extends to ideological and religious causes really does represent a widening of the PTA version is debateable.14 Nonetheless, critics of motive requirements in the UK would doubtless be intrigued to learn of the striking out of the equivalent element in Canadian counter-terrorism law by a federal judge in Ontario in Khawaja. Momin Khawaja, an Ottowa-based software computer programmer was arrested in March 2004 in connection with a plot by Islamic extremists to blow up targets in the UK.15 He was the first person to be charged under Canada’s anti-terror legislation with participation in the activities of a terrorist group and facilitating a terrorist activity. Prior to the commencement of his trial, Khawaja’s lawyers challenged the constitutionality of the motive element of the federal anti- terror offences. In the Ontario Superior Court, Rutherford J upheld the challenge.16 In Canadian criminal law as elsewhere, the reasons why a person committed a particular offence had not usually been relevant to the question of guilt.17 At best, considerations relating to motive had been treated as an aggravating factor at the sentencing stage of specific proceedings. The ‘inevitable impact’ effect of incorporating a reference to the political, ideological or religious motives of the accused in a definition of terrorist activity was according to Rutherford J to focus investigative and prosecutorial scrutiny on the political, ideological and religious beliefs, opinions and expressions of persons and groups in Canada and beyond . . . the shadow of suspicion and anger falling over all who appear to have any connection with the 13

‘Liberty’s threat from executive power’ Sydney Morning Herald (2007), July 6. For discussion see C Walker, The Anti Terrorism Laws (2002, Blackstones, London) at pp. 22–3 and by the same author ‘The legal definition of terrorism in United Kingdom law and beyond’ [2007] PL 331. It may be noted that in one respect at least – the requirement of ‘serious’ violence, damage etc. – the 2000 Act is narrower than its predecessor which referred merely to ‘violence’. 15 ‘Canada computer expert linked to British bomb plot’ The Times (2004) April 1. Khawaja was subsequently convicted in October 2008 for his involvement in a plot to bomb several targets in Britain, see ‘Canadian bomb plotter convicted’ on the BBC News World website at http: //news.bbc.co.uk/1/hi/world/7697843.stm 16 R v Khawaja (2006) 42 CR (6th) 348; 214 CCC (3d) 399. 17 See thus the Canadian Supreme Court in United States v Dynar [1997] 2 SCR 462, ‘It does not matter to society in its efforts to secure social peace and stability what an accused’s motive was, but only what the accused intended to do. It is no consolation to one whose car has been stolen that the thief stole the car intending to sell it to purchase food for a food bank.’ Cory & Iacobucci JJ at para 8.1. 14

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3 The Regulation of Political Association and Possession of Documents religious, political or ideological grouping identified with specific terrorist acts. This, in my view, amounts to a prima facie infringement or limitation of the freedoms of conscience, religion, thought, belief, expression and association such that would have to be justified by reference to s. 1 of the Charter.18

Having so concluded, the judge then considered whether the impairment of Charter freedoms was proportionate to the objective to be secured by the impairing provision. The objective of making Canadians safer from terrorist attacks could be achieved through the criminal law without reference to an accused person’s motives, a fact which led inexorably to the conclusion that the motive element was a disproportionate interference with Charter freedoms and would be struck down. The removal of motive from Canadian law simultaneously liberates prosecutors and freedom of expression. It takes the focus in investigative and trial procedures off the accused’s belief system, thereby removing from the courtroom a potentially prejudicing aspect of a criminal trial before a jury. It also denies the accused the opportunity to put his faith/beliefs at the centre of any defence.19 Khawaja represents a serious, human rights challenge to the supporters of motive-based definitions of terrorism. One such supporter, Saul, has argued that the retention of motive helps to mark out and articulate that which is especially reprehensible about terrorist activity. He puts it thus The core premise is that political violence or violence done for some other public-oriented reason (such as religion, ideology, or race/ethnicity) is conceptually and morally different to violence perpetrated for private ends (such as profit, greed, jealousy, animosity, hatred, revenge, personal or family disputes and so on).20

18

R v Khawaja (2006) 42 CR (6th) 348 at para 58. See also Report of Events Relating to Maher Arar: Analysis and Recommendations (2006, Ontario, HM Queen) at pp. 355–357 Recommendation 19 for similarly expressed concerns. 19 K Roach, ‘The Case for Defining Terrorism With Restraint and Without Reference to Political or Religious Motive’ in A Lynch, E McDonald & G Williams (eds.), Law & Liberty in the War on Terror (2007, Federation Press, New South Wales) at p. 47. Needless to say, the ruling by a single judge that the federal Parliament had acted unconstitutionally in inserting a motive clause into Canada’s anti-terror laws is controversial, see B Saul, ‘The Curious Element of Motive in Definitions of Terrorism: Essential Ingredient or Criminalising Thought’ in A Lynch, E McDonald & G Williams ibid. More generally, Charter-based judicial striking down of federal laws is still controversial, see for a flavour of the debates inter alia see P Monaghan, Politics and the Constitution, The Charter, Federalism and the Supreme Court of Canada (1987, Carswell, Toronto); FL Morton, Law, Politics and the Judicial Process in Canada (3rd edn., 2002, University of Calgary Press, Calgary); L Weinrib, ‘The Supreme Court of Canada in the Age of Rights: Constitutional Democracy, the Rule of Law and Fundamental Rights under Canada’s Constitution’ (2001) 80 Can Bar Rev 699; K Roach, The Supreme Court On Trial: Judicial Activism or Democratic Dialogue (2001, Irwin Law, Toronto); M Mandel, The Charter of Rights and the Legalization of Politics in Canada (1989, Wall & Thompson, Toronto); A Hutchinson ‘Supreme Court Inc. The Business of Democracy and Rights’ in (ed G W Anderson) Rights and Democracy Essays in UK-Canadian Constitutionalism (1999, Blackstone Press Ltd, London). 20 B Saul, ibid. at p. 29.


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Saul also points to the partial acceptance in international legal fora of a political purpose element in definitions of terrorism.21 The fact that traditionally the criminal law has worked without inquiring into the reason behind the defendant’s actions should not rule out the possibility of factoring in this matter when there are ‘compelling public interests for doing so.’22 Society can signal the vital importance of certain moral values by developing new criminal laws that target offenders who seek their destruction. Saul agrees with an earlier reviewer of counter-terrorism laws, Lord Lloyd of Berwick, that the inclusion of a political or ideological motive allows there to be a distinction between those crimes that threaten democratic institutions and those that do not.23 In 2005, Lord Carlile of Berriew, the current Independent Reviewer of Terrorism Legislation was asked by the Home Secretary to review the existing definition. He agreed that religiously-inspired acts and threats should remain within the definition of terrorism (as well as politically-motivated acts and threats) but went further, recommending that the existing definition should be clarified so that terrorism motivated by a racial or ethnic cause would also be explicitly included.24 Lord Carlile’s review briefly alludes to the ruling in Khawaja which had been published some 5 months previously but does not explore the decision in depth. Such an exploration might have made the Independent Reviewer less quick to reach his rather sweeping conclusion, namely that (t)here is no significant argument to the effect that a political cause should be excluded from the definition. The same applies to a religious cause.25

On the contrary, a glance at the Canadian debates would have indicated that free speech/free association concerns do arise with a motive-based definition. For his part, Saul concedes that a reference to motives does draw official attention to a person’s beliefs but goes on to offer the reassurance that this attention is only drawn when the beliefs are connected with acts of, or threats of violence as enumerated in terrorism definitions . . .. Peaceful politics, religions or ideologies are not risk . . .26

There is moreover for Saul no empirical evidence to support claims that freedom of expression is chilled by the inclusion of motive, although the methodological

21

See for example the EU’s Framework Decision on Combating Terrorism EC, COM (2001) 521 Final, CNS/2001/0217 (2001) 6. 22 Saul at n. 19, p. 32. 23 Lord Lloyd, Inquiry into Legislation against Terrorism Cm 3420 (1996) at xi & para 5.22 et seq. Lord Lloyd’s preferred definition was based upon the US Federal Bureau of Investigation’s operational definition. 24 The Definition of Terrorism – A Report by Lord Carlile of Berriew QC Independent Reviewer of Terrorism Legislation Cm 7052 (2007) paras. 65–66. It is difficult though to see how such a cause would not have been read as falling within the ambit of ‘political’ or ‘ideological’ purposes. 25 Ibid. at para. 51. 26 Saul n. 18 at p. 35.

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difficulties in establishing a negative (how much of a loss of freedom of expression flows from the motive element of the definition in isolation) are not addressed. Moreover, his claim that only those persons whose political/ideological/religious beliefs are ‘connected’ with acts of (or threats of acts of) violence need have anything to be worried about, appears somewhat complacent. Once possession of a particular set of beliefs is a relevant factor in the triggering of criminal liability (and hence investigative action by the police and other security services), it is difficult to prevent the perception (whether grounded or not) that particular communities and individuals within communities are being singled out on account of their differentness from the mainstream. The resultant tensions in police-community relations can be imagined, tensions which are heightened when policing based upon faulty intelligence is accompanied by the overzealous use of force. The police raid on two adjoining properties in Forest Gate, East London – a predominantly Muslim area of the city – on June 2, 2006 and its aftermath is instructive in this regard. More than 250 officers were on scene at 4am on that day as fifteen officers armed with machine guns burst into the two houses after being tipped off about a chemical bomb-making factory.27 One of the occupants was shot in the shoulder as eleven persons including a baby were shaken violently from their beds. According to a report by the Independent Police Complaints Commission (IPCC), the police continued their ‘very aggressive behaviour’ after having secured control of the properties.28 The shot man and his brother were held for police questioning for one week before being released without charge. No evidence of any terrorist activity at the properties was ever found. The IPCC Report found that the police had not planned for the possibility of faulty intelligence and, whilst not criticising police officers for having carried out the operation, reminded officers of the fact that innocent people were ‘likely to get caught up in the operation and suffer the consequences, even if they haven’t been arrested and detained.’29 The damage to community relations was significant. Muslim community leaders complained that ordinary law-abiding Muslims were being pursued on account of their religious beliefs.30 Of course, such an accusation could well have been made by community

27

‘Blair backs police over controversial terror raid’ The Times (2006) June 4. Details of the IPCC report into the events at Forest Gate can be accessed electronically at http://www.ipcc.gov.uk/forest_gate_2_3report.pdf 29 Ibid. 30 ‘We’re victimised like Jews by the Nazis, says Muslim leader’ The Times (2007) February 3 quoting Dr Mohammad Naseem, chairman of the Birmingham Central Mosque who it was reported claimed that ‘Muslims were being labelled as a threat like the Jews were under Adolf Hitler.’ Dr Naseem was further quoted in the report as claiming that ‘Britain was turning into a police state’. He accused the Government of ‘picking on the Muslim community to pursue a political goal. The German people were told Jews were a threat. The same thing is happening here.’ The same article in The Times also quoted a noted moderate voice in the Islamic community and former leader of the Muslim Council of Britain, Sir Iqbal Sacranie. He is reported to have said ‘I wouldn’t have used the Nazi reference but I know from the number of calls that we are getting that people are really disturbed by the onslaught on the Muslim community.’ 28


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spokesmen in an alternative scenario where the relevant terrorist legislation empowering the police did not refer to a suspect’s motivation.31 It is not my argument that the removal of the motive element would, at a stroke, assure targeted communities that investigating authorities were no longer predisposed to suspect on the basis of religious belief. Nonetheless, the events at Forest Gate and their aftermath appear to give some added credence to perceptions of unfounded religious profiling in which Muslims as a group receive particularly close (and sometimes brutal) attention under motive-relevant definitions of terrorism. It is reasonable to assume that the loss of community confidence that criminal enforcement agencies experience after such events is accompanied by a corresponding recruitment boost to those plotting acts of terror. At its most compelling, the case made by supporters of a motive-based definition is symbolic. It is only if terrorist crime is separated off from other crimes and treated as sui generis can what is truly abhorrent about this particular type of offence be expressed by law-abiding communities. A response to this position is to agree at the outset that terrorist crimes are uniquely abhorrent and that democracies need to signal their rejection of the politics of violence and coercion. Notwithstanding this point, a polity that is committed to the ideals of constitutionalism (and thus individual rights and freedoms) needs as a matter of principle to proceed cautiously when restricting core freedoms in the pursuit of enhanced security. It is incumbent on states to find means of signalling their rejection of terrorism that leave adequate space for freedom of belief and expression. As the United States Code demonstrates, it is possible to construct terrorist offences without reference to the political or other beliefs of accused persons.32 There terrorism is defined as violent acts or acts dangerous to human life . . . that appear to be intended to (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping;

The especial repugnance that is rightly felt towards those who set out to murder, injure and put in fear the civilian population with intent to intimidate, coerce or influence is still captured in the US definition and reflected in the sentencing powers of the US federal courts.

31

But see Fikete who argues that after the events of September 11, 2001, Muslims tend to be seen by western governments as collective threats to liberal democratic values, ‘Anti-Muslim racism and the European security state’ (2004) 46 Race and Class 3. 32 USC Title 18 s. 2331.

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3.3 3.3.1

Proscription Issues of Principle

You have to have a party when you’re in a state like this. The Psychedelic Furs, President Gas (1982) CBS Records

The central importance of political parties to the proper functioning of large-scale democracies is well understood in modern liberal thinking. Early advocacy of representative democracy is to be found in the work of James Madison and, subsequently John Stuart Mill. Both stressed the sheer impracticality of direct democracy in states larger than the ancient city states of Greece in which direct democracy was first practised.33 Mill argued that a representative system in which rival parties periodically submitted themselves for re-election and where freedom of expression and assembly were also guaranteed offered the best means of scrutinizing the executive and making it accountable to the electorate.34 Joseph Schumpeter’s classic work Capitalism, Socialism and Democracy placed political parties centre stage in a competitive struggle between leadership elites.35 On this view, the essence of democracy is to produce rival sets of competent and qualified leaders.36 Sartori likewise conceived of parties as central to any account of democratic practice.37 In his account, parties function not merely to express the demands of the electorate but also to transmit and channel certain of these demands ‘backed by pressure.’38 The German Constitutional Court has similarly articulated the view that parties constitute the

33

Both also argued that direct democracies were vulnerable to capture by the unwise. Madison believed that the dangers posed by any one faction to the public good or minority rights would be reduced where there were many competing factions and parties across a larger territory than the city-state. More groupings operating on a grander geographical scale meant that it became ‘less probable that a majority of the whole will have a common motive for invading the rights of the other citizens, see J Madison, A Hamilton & J Jay, The Federalist Papers (ed. I Kramnick) (1987, Penguin, Harmondsworth) No. X. For Mill’s position see his Considerations on Representative Government in HB Acton, (ed.) Utilitarianism, Liberty and Representative Government (1951, Dent, London) at p. 228. 34 Ibid. 35 1976, Allen & Unwin, London (first published in 1942). Unlike Schumpeter however, Mill did express the hope that, over time, freedom of expression and assembly would generate greater numbers of citizens capable of holding public office. 36 Ibid. at 262. For criticism of Schumpeter, see P Bachrach, The Theory of Democratic Elitism (1969, University of London Press, London). 37 For an alternative account that downplays the importance to democracy of political parties in favour of other groupings in civil society, see RA Dahl, A Preface to Democratic Theory (1956, University of Chicago Press, Chicago). 38 G Sartori, Parties and party systems; A framework for analysis Vol 1 (1976, CUP, Cambridge) at p. 28. Over time, Sartori argues that parties ‘deviate and distort’ these demands.

3.3 Proscription

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political units of action which a democracy needs in order to unite electors into groups capable of political action . . .39

Of course, parties do not have an exclusive claim on this channelling function. The media, pressure groups and NGOs all serve to transmit and bring claims to the fore in public debate. Consequently, the absence of a particular party for whatever reason from the electoral arena need not of itself prevent completely the channelling of demands from its supporters. However, it seems reasonable to suppose that the capacity of non-associated individuals to exert pressure on the political process and to frame an alternative vision of how the nation’s affairs might be managed is comparatively weak when measured alongside the activities of associations. It follows that legal restraints on the formation of political parties or the closure of existing associations is a serious development in any democratic state. An outright ban on association with others constitutes the most severe type of restraint and threatens the linked free speech ideals of individual development and democratic self-governance, stunting as it does an individual’s opportunity to participate in community and national affairs. Proscription also threatens to curtail the formation and development of alternative policies, thereby restricting the flow of information and ideas to the electorate and reducing the options on offer to voters. At the same time (and unlike other pressure groups and media organisations which operate in the political arena), political parties alone have the capacity to transform the essential character of society upon coming to power.40 Accordingly, the constitutions of most liberal democracies make provision for the dissolution of political associations in specific circumstances. Among West European states for example, Germany (prior to and after unification) has shown itself most inclined to resort to proscription as a means of controlling the political activities of entities considered a threat to the state. Beyond Western Europe, the fledgling democracies to emerge from the collapse of communism in Eastern Europe in the 1990’s though formally committed to political pluralism also retain in their constitutions the power to limit freedom to organise and associate where this poses a threat to the integrity of the state.41 Conversely, the United States has tended to place few formal, legal barriers 39

8 BVerfGE 51 (1958). Article 2 of the Law on Political Parties defines political parties as ‘organisations of citizens who, permanently or for protracted periods seek to exert influence on the political opinion-forming process. . . and to participate in the representation of the people. . .’ The constitutional basis for this law is provided by Article 21 of the Basic Law. See also KD Ewing, ‘Transparency, Accountability and Equality – The Political Parties Elections and Referendums Act 2000’ [2001] PL 542, 544 where he suggests that parties are a ‘transmission belt’ for policy development and its carriage into legislation. 40 Recognised by the European Court of Human Rights in Refah Partisi (The Welfare Party) v Turkey (2003) 37 EHRR 1, paras. 87, 99. 41 G H Fox & G Nolte, ‘Intolerant Democracies’ (1995) 36 Harvard Intl LJ 1. I Cram, ‘Constitutional responses to extremist political associations – ETA, Batasuna and democratic norms’ (2008) 28 LS 68. Examples include the Bulgarian Constitution of 1991, Article 11 that proscribes parties which ‘seek the violent usurpation of the state power’ cited in C Tomuschat, ‘Democratic Pluralism: The Right to Political Opposition’ in (eds. A Rosas & J Helgesen) The Strength of Diversity (1992, Martinus Nijhoff, Dordrecht) at p. 35.

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to obstruct the formation and activities of extremist parties. Although the Bill of Rights in the US Constitution does not expressly enshrine freedom of association, the activities of political parties and their members have tended to be protected under the First Amendment’s free speech guarantee. This freedom has been exploited in the past by members of the National Socialist Party of America (NSPA), most notoriously in Collin v Smith which centred upon a planned march by NSPA members at Skokie, a mainly Jewish suburb of Chicago, Illinois. Ruling that a local ordinance that prohibited the promotion or incitement of racial hatred violated the First Amendment, the US Court of Appeals for the Seventh Circuit declared: We would hopefully surprise no one by confessing personal views that NSPA’s beliefs and goals are repugnant to the core values held generally by residents of this country, and, indeed, to much of what we cherish in civilization. As judges sworn to defend the Constitution, however, we cannot decide this or any case on that basis. Ideological tyranny, no matter how worthy its motivation, is forbidden as much to appointed judges as to elected legislators.42

The US position then is that the Constitution has no function in shielding settled democratic norms and values from the activities and arguments of anti-democratic forces. On this side of the Atlantic and in common with other European states, the converse proposition holds true; namely that the liberal democratic state is entitled to protect itself from those who seek their collapse by limiting or denying completely the exercise of core freedoms by the enemies of democracy. This stance is exemplified by Article 17 of the European Convention on Human Rights which declares: Nothing in this Convention may be interpreted as implying for any state, group or person any right to engage in any activity aimed at the destruction of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

As was noted in Chap. 1, the Constitution of the Federal Republic of Germany (1949) limits the exercise of core democratic freedoms where this threaten the existence of the Constitution. Article 21(1) of the Basic Law states that political parties are agents that function to form ‘the political will of the people’43 and accordingly confers on parties constitutional entitlements to organize and campaign. Nonetheless, Article 21(2) goes on to provide that: Parties which by reason of their aims or the behaviour of their adherents seek to impair or abolish the free democratic order or endanger the existence of the Federal Republic of

42

578 F.2d 1197, 1200 (1978) and see N Dorsen, ‘Is there a right to stop offensive speech? The case of the Nazis at Skokie’ in (ed. L Gostin) Civil Liberties in Conflict (1988, Routledge, New York); and R Cohen-Almagor, The Boundaries of Liberty and Tolerance in the Struggle against Kahanism in Israel (1994, University Press of Florida, Gainsville) at 132 et seq.. Historians of the First Amendment rightly point out that this freedom was not always so generously interpreted, see the early 20th century subversive advocacy cases of Gitlow v New York 268 US 652 (1925) and Whitney v California 274 US 357 (1927). 43 Socialist Reich Party Case (1952) 2 BVerfGE 1.

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Germany shall be unconstitutional. The Federal Constitutional Court shall decide the question of unconstitutionality.44

Where proscription is employed as a leading weapon in the strategy to combat extreme, anti democratic elements, it may reflect a broader ‘militant democracy’ approach on the part of the state.45 I suggested in the opening chapter that aspects of the UK’s counter-terrorism strategy fitted the pattern of pre-emptive strikes on the core political freedoms of the ‘enemies’ of the state. Laws banning specific political associations sit alongside severe restrictions upon the publication, dissemination and possession of certain forms of political expression in a concerted effort to shore up the democratic state. Proscription, possession, indirect incitement and dissemination laws all serve to prevent/disrupt the game plans of anti-democratic forces. That is not to say however that the current strategy is exclusively made up of elements associated with militant democracy. The ‘CONTEST’ policy of the UK Government for tackling international terrorism came into being in 2003 and comprises a four-strand approach to countering international terrorism (Prevent, Pursue, Protect and Prepare).46 The ‘Prevent’ strand for example seeks to tackle radicalization of individuals by both deterring those who facilitate terrorism and those who encourage others to become terrorists by changing the environment in which the extremists and those radicalizing others can operate and tackling disadvantage and supporting reform by addressing structural problems in the UK and overseas that may contribute to radicalisation, such as inequalities and discrimination.47

Whilst the first extract above appears to contemplate legal restrictions on civil and political freedoms, the second indicates an official awareness at least of social and economic factors that may lie behind increased support for radical forms of Islam in the UK. To this extent, it would misleading to characterize UK government policy as wholly comprising pre-emptive strikes designed to crush its illiberal opponents. Even the deterrent strand of ‘Prevent’ extends beyond the suppression of dissenting opinion. The Home Office’s counter-terrorism unit has sought to discredit Al Qaeda by pushing counter terrorist propaganda to media channels including the BBC.48 A report entitled ‘Challenging violent extremist ideology through communications’ refers to the value of promoting material in ‘niche messages’ to groups considered vulnerable to Al Qaeda. Whilst such material would be largely for communication

44

See further. I Cram, ‘Constitutional responses to extremist political associations – ETA, Batasuna and democratic norms’ (2008) 28 LS 68, 77 for brief discussion of the collapse of the Weimar Republic that provides the context for Article 21(2). 45 A Pedahzur, ‘The defending democracy and the extreme right’ in (eds. R Eatwell & C Mudde) Western Democracies and the New Extreme Right Challenge (2004, Routledge, London). 46 Countering International Terrorism – The UK’s Strategy (June 2006, Home Office) available electronically at http://security.homeoffice.gov.uk/counter-terrorism-strategy/about-the-strategy/ 47 Ibid., at pp. 1–2. 48 ‘Revealed: Britain’s secret propaganda war against al-Qaida’ The Guardian (2008) August 26.

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overseas via diplomatic contacts in embassies and consulates, the document also encourages the use of domestic channels of transmission (including BBC radio programmes and internet forums) for dissemination purposes. From a constitutional perspective, this ‘more-speech’ response to terrorist activity obviously engenders fewer objections than its censorious counterpart.

3.3.2

Legal Powers of Proscription

Executive powers of proscription laid down in the TA 2000 and expanded further in the Terrorism Act 2006 (hereafter TA 2006) draw upon the above definition of terrorism to enable the Home Secretary to outlaw a range of political associations. Initially, under s. 3 of the TA 2000, the Home Secretary’s powers to proscribe an ‘organisation’49 were confined to where the Minister believed that the organisation was ‘concerned in terrorism.’ This is defined as meaning where an organisation ‘commits or participates in acts of terrorism, prepares for terrorism, promotes or encourages terrorism or is otherwise engaged in terrorism.’ Once an organisation has been proscribed, a range of expressive activity is brought within the ambit of terrorism laws. For example, it becomes an offence for a person to belong or profess to belong to the organisation,50 to invite support for the organisation (financial, property or other support), to arrange, manage or assist in a meeting to support or further the activities of a proscribed organisation,51 to wear an item of clothing or wear, carry or display an article in such as way as ‘to arouse reasonable suspicion that he s a member or supporter of a proscribed organisation.52 As of February 2008, 46 international terrorist organisations had been proscribed under the TA 2000.53 Significantly, the TA 2006 extends the range of circumstances in which the Home Secretary may proscribe an organisation that is believed to be concerned in terrorism by virtue of promoting or encouraging terrorism. The expanded category of ‘promoting or encouraging’ terrorism now catches the organisation that ‘indirectly’ encourages terrorism through glorification. Thus, liable to proscription are cases where the activities of the organisation include (a) the ‘unlawful glorification of the commission or preparation (whether in the past, in the future or generally) of acts of terrorism; or (b) are carried out in a manner that ensures the organisation is

49

Defined under s. 121 of Terrorism Act 2000 to include any association or combination of persons. 50 S. 11, TA 2000. 51 S. 12, TA 2000. 52 S. 13, TA 2000. The resources of a proscribed organisation can also be seized under Part 3 of TA 2000. 53 Source – Home Office website accessed 06/02/2008 http://security.homeoffice.gov.uk/legislation/ current-legislation/terrorism-act-2000/proscribed-terrorist-groups?version = 2

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associated with statements containing any such glorification.’54 Glorification is unlawful if the persons who may become aware of it could reasonably be expected to infer that what is being glorified, is being glorified as conduct that should be emulated in existing circumstances or is illustrative of a type of conduct that should be so emulated.55

As of February 2008, the Home Office revealed that two organisations have been proscribed under this ‘unlawful glorification’ power.56 There exist both parliamentary and legal channels through which control over the Home Secretary’s discretionary powers may be exercised. In respect of the initial decision to proscribe, a draft order has to be laid before and approved by both Houses of Parliament before the order comes into force.57 As to legal mechanisms, an application may be made under the TA 2000 to the Home Secretary for deproscription. In the event of a refusal to deproscribe, an ‘appeal’ may be taken against the refusal to the Proscribed Organisations Appeal Commission (POAC).58 This is to be determined on the principles which govern to an application for judicial review, rendering the term ‘appeal’ somewhat of a misnomer except in the sense that, in the event of a successful ‘appeal’, the Home Secretary is obliged as soon as is possible to lay a draft order before Parliament, removing the organisation from the list of proscribed organisations.59 A further appeal lies on a point of law to the Court of Appeal or Court of Session in Scotland.60 On the evidence currently available, POAC does seem to take its ‘appellate’ responsibilities in scrutinizing the original decision to proscribe entirely seriously and has been amply supported by a strong Court of Appeal in so doing. In Lord Alton of Liverpool and others v Secretary of State for the Home Department POAC deemed ‘perverse’ the decision of the Home Secretary to ban the People’s Mojahadeen Organisation of Iran (PMOI).61 POAC subjected the Home Secretary’s evaluation that the PMOI was ‘concerned in terrorism’ to intense scrutiny, asking itself whether, on the evidence before POAC, there were reasonable grounds for the Home Secretary to reach the conclusion she had arrived at. POAC found that, in 54

S. 21 TA 2006, inserting ss.(5A-C) into s. 3 of TA 2000. Glorification is defined as including any form of praise or celebration while statements include non-verbal communications involving images and/or sounds. Other forms of ‘indirect encouragement’ seemingly do not give grounds for proscription unless this term is caught by the reference in S. 3(5A) to activities of the organisation that ensure it is associated with statements that contain glorification. 55 S. 3(5B), TA 2000. 56 The groups are Jammat-ul Mujahideen Bangladesh; Tehrik Nefaz-e Shari’at Muhammadi, see Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order, SI 2007/2184, Art 2). 57 S. 123(4)(a) TA 2000. Likewise, where the Home Secretary proposes the deproscribing of a banned group, affirmative resolutions from both House of Parliament are also needed. 58 S. 5(3) & Schedule 3, TA 2000. 59 S. 5(5), TA 2000. 60 S. 6(1), TA 2000. 61 [2008] EWCA Civ 433 for the Court of Appeal’s refusal to interfere with POAC. I am grateful to my colleague Professor Clive Walker for alerting me to this ruling.

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approaching the question whether the PMOI was ‘concerned in terrorism’, the Home Secretary had asked herself the wrong question. She had inquired whether there was reasonable cause to believe that PMOI was likely to resume terrorist activities in the future. Instead, she should have asked whether ‘there was reasonable cause to believe that PMOI was maintaining a military capability or taking active steps to acquire one with a view to a resumption of terrorist activities.’62 On the view of POAC, there was no factual evidence on which the Home Secretary could have reached an affirmative answer on either point. This close scrutiny standard was expressly upheld by the Court of Appeal when the latter refused the Home Secretary permission to appeal against POAC’s ruling.63 POAC had correctly found the Home Secretary to have misdirected herself on a matter engaging a fundamental human right. Whilst Lord Alton and others, indicates a pleasingly robust level of independent scrutiny of executive banning orders, it is important to recall that the procedures sit atop a system of loosely defined executive powers. From the perspective of freedom of expression and association, specifically in the context of citizens’ participation in political matters, it is worth spending some time thinking through other aspects of these vaguely stated restrictions. Leaving to one side questions of proportionality that are engaged by a decision to ban an entire political association because of a speech praising or celebrating terrorism by one of its members,64 arguably, one of the least defensible features of the current provisions is that individuals are criminalised by virtue of the acts of others over whom they have no control.65 As the legal framework currently stands, an individual commits an offence by being a member of an organisation (or even simply professing membership) if the activities of the organisation include the ‘praising/condoning’ of terrorism.66 Liability can arise even if the ‘terrorism’ in question could have been concerned with conduct in

62

Ibid. at para. 47. Ibid. in which Lord Chief Justice Lord Phillips of Worth Matravers, Lord Justice Laws and Lady Justice Arden gave judgment. 64 See B Saul, ‘Speaking of Terror: Criminalising Incitement to Violence’ (2005) 28 UNSW Law Journal 868, 879–880 who asks in the context of equivalent Australian provisions in the Criminal Code whether an entire Mosque (assuming it qualifies as an organisation) could be shut down simply because an imam there prays for the mujahideen to be granted victory. 65 For description and analysis of equivalent far-reaching provisions under reforms to the div. 102 of Australian Criminal Code, see B Saul, ibid, A Lynch & G Williams, What Price Security? – Taking Stock of Australia’s Anti-Terror Laws (2006, UNSW Press, Sydney) pp. 62–64. See further S Bronitt & J Stellios, ‘Security and Human Rights:’ Unbalanced Law Reform in the War on Terror’’ [2006] Melb Uni L. Rev 29 which focuses more on sedition amendments to the Australian Criminal Code 1995. 66 Liability also arises where a person (who need not be a member) invites support for a proscribed organisation or ‘assists’ in a meeting to support or further the activities of a proscribed group. A general defence does exist to those charged with belonging or professing to belong to a proscribed organisation. This is available if the defendant can prove that the organisation was not proscribed on the last/only time at which he/she became a member; AND that the defendant has not taken part in the activities of the organisation at any time since it was proscribed, s. 11(2), TA 2000. 63

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the past – such as the activities of the African National Congress during the apartheid era in South Africa – provided the recipient could reasonably be expected to infer from the ‘praise’ that he/she should emulate the ANC’s actions in a current conflict. Recall also that the power to proscribe is silent on the issue of who or what within the organisation must have engaged in ‘unlawful glorification’ or whether this must occur in a public setting or can take place in private. Can liability for membership then result from a statement in the organisation’s official publications/ website? What about the words and actions of the acknowledged officials/leaders – does this afford a lawful basis for criminalising each and every member? Even more opaquely, proscription can be justified when the organisation’s activities are ‘carried out in a manner that ensures that the organisation is associated with statements of unlawful glorification.’ There is an obvious lack of clarity around the reference to ‘associated with’ here. In the context say of the anti-Iraq war coalition in the UK, the mere presence at a rally or public meeting of members of an otherwise lawful political association with no previous connection to terrorist activity alongside a jihadist group committed to the violent overthrow of the British state could lead to each of association’s members (including those not present at the rally) being guilty of the ss. 11 membership of a proscribed organisation offence. In time, judicial clarification will doubtless be forthcoming. For the present, it is difficult to imagine the lack of clarity as acting other than to inhibit at least some political activity, except perhaps on the part of those determined to mount a symbolic and public challenge to counter-terrorism laws. Viewed in those terms, the proportionality of current provisions is highly problematic and it would be interesting to see how a domestic court would approach a Human Rights Act-based compatibility challenge.

3.3.3

Proscription and Strasbourg Jurisprudence67

The vagueness of executive proscription powers more generally poses critical questions about the lawfulness of the current regime under Articles 10 & 11 of the European Convention on Human Rights. As is well known, the criterion in Articles 10(2) & 11(2) that any restriction be ‘prescribed by law’ requires that any legal restriction be both accessible and stated with sufficient clarity as to enable citizens to regulate their conduct.68 This is a basic requirement of the rule of law and inherent in the ideal of liberal constitutionalism. It is doubtful whether the necessary degree of predictability is present in the 2006 reforms. Of course, for the purposes of any legal challenge much would turn on the degree of scrutiny exercised by the Strasbourg Court. In the case of the forcible dissolution of a 67

See for general discussion E Brems, ‘Freedom of Political Association and the Question of Party Closures’ in W Sadurski (ed.) Political Rights under Stress in 21st Century Europe (2006, OUP, Oxford) at pp. 151–160; P Harvey, ‘Militant Democracy and the European Convention on Human Rights’ (2004) ELRev 407. 68 Sunday Times v UK (1979) 2 EHRR 245.

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political party, the Court’s rhetoric speaks of a ‘rigorous’ level of scrutiny of both the law and the decisions applying the law.69 This is to be expected given the pivotal role played by parties in ensuring pluralism in democratic systems of government. Drastic measures such as the dissolution of an entire political party and a disability barring its leaders from carrying on any similar activity for a specified period, may be taken in only the most serious cases.70

It will not be enough therefore for a respondent state to show that the decision to ban was taken ‘reasonably, carefully and in good faith.’71 Even a temporary ban on political association will require to be supported by ‘convincing and compelling’ reasons.72 In the leading decision in Refah Partisi, three grounds for refusing to interfere with the Turkish authorities’ dissolution of the Islamist Welfare Party were present. First, the party’s programme of introducing sharia law into Turkey as a co-existing legal of system struck at the heart of Convention guarantees. Not only would it oblige individuals to obey rules laid down by an entity other than the state, sharia law would also treat persons differently on the basis of their religious beliefs. Sharia law further diverged from Convention values in respect of the criminal law, criminal procedure and the legal status of women. More broadly, the Court recalled its declaration in United Communist Party v Turkey that democracy is the ‘only political model contemplated by the Convention and, accordingly, the only one compatible with it.’73 The second ground for declining to find a violation of Article 11 focused on the ambiguous stance of the party leadership (including the party chairman, vicechairman and elected MPs) towards party members who had spoken of the possibility of using force against those who opposed the introduction of an Islamist regime. Specifically, the failure of the chairman and the vice chairman to distance themselves from the members comments implied tacit support at the senior level for the threat of force. Conversely, provided a party official does not call upon party members to use force (whether ambiguously or not) and does not use language that suggests more generally a rejection of democratic values, the fact that forcefully worded criticism of existing state policies is made will not by itself be sufficient to of justify the sanction of dissolution.74A fortiori a failure to speak by way of condemnation of another’s terrorist act cannot on its own offer a sufficient basis for proscription.

69

United Communist Party v Turkey (1998) 26 EHRR 121, 149; Castells v Spain (1992) 14 EHRR 445. 70 Refah Partisi v Turkey (2003) 37 EHRR 1, 36. 71 United Communist Party v Turkey (1998) 26 EHRR 121, 149. 72 Christian Democratic People’s Party v Moldova (2006) App. No. 28793/02 Judgment February 14. 73 United Communist Party v Turkey (1998) 26 EHRR 121, 148. 74 The Socialist Party and others v Turkey (1998) 27 EHRR 51.

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The third and critical reason for upholding the ban on the Welfare Party in Refah Partisi relates to the level of threat posed to the democratic stability of Turkey at the time of the party’s dissolution. The Grand Chamber noted that the party already held 158 seats in the 450 seat Turkish Parliament and that opinion polls estimated that the party could expect to obtain 67% at the next General Election. This electoral strength constituted a ‘real potential to seize political power without being restricted by the compromises inherent in a coalition.’75 The latter criterion is arguably central to the proportionality of an order banning an entire political party. If this claim is correct, then Home Secretary’s use of proscription powers against groups linked to, or espousing, anti-democratic norms when UK institutions are not in immediate or serious danger looks to be problematic.76 If allowed to go unchallenged, the speculative nature of harm assessments in this context pose a serious threat to the liberal constitution’s commitment to individual liberty. In expounding his famous harm principle, John Stuart Mill warned against such vagueness and noted that governments were prone to abuse their preventative powers.77 He required a specific harm to be demonstrated or a high risk of injury before interference with personal liberty could be considered legitimate. In the case of permissible restraints on free expression, Mill gave the examples of the statements ‘Corn dealers are starvers of the poor’ and ‘Private property is robbery’. Where these are delivered orally to an impassioned crowd gathered close to a corn-dealer’s house or handed around the crowd in leaflet form, they may justly incur punishment because of the immediate threat of violence to corn dealer or damage to his property.78 Against this view, Article 17 of the Convention plainly contemplates the denial or curtailment of Article 11 rights where the purpose behind their exercise is to advance anti-democratic values.79 However, allowing states to ban parties on account of the content of their political programmes and the occasional inflammatory speech without more, not only risks the loss of a defining criterion of democratic polities, but also acts as a persuasive recruiting argument on behalf of anti-democratic forces. As Harvey has cogently remarked, an ‘excessively narrow’ definition of legitimate political activity results in ‘petrified oligarchy instead of a modern pluralist democracy.’80

75

(2003) 37 EHRR 1 at para. 108. If the act of proscription by national authorities is deemed to violate Article 11, it must follow that convictions in domestic law for membership and participation in the banned party must also violate Article 11 and possibly Article 10. 77 JS Mill, Utilitarianism and Other Essays (1972, Dent, London) p. 153. 78 JS Mill, On Liberty – The Thinker’s Library, No. 5 (Watts & Co, London) p. 67 79 For an argument that international law may require the closure of anti-democratic parties, see E Brems, ‘Freedom of Political Association and the Question of Party Closures’ in W Sadurski (ed.) Political Rights under Stress in 21stCentury Europe (2006, OUP, Oxford) at p. 150. 80 P Harvey, ‘Militant Democracy and the European Convention on Human Rights’ (2004) E L Rev 407, 409. 76

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3.4 3.4.1


Possession The Avoidance of ‘Catastrophic Harm’

This section of materials attempts to describe and evaluate the possession-centred offences in UK counter-terrorism law. The current provisions in the TA 2000 were pre-figured by parts of Northern Ireland emergency laws. The scope and impact of the latter are briefly set out prior to discussion of the current offences under the 2000 Act and associated case law. The section concludes by engaging with some of the more abstract issues that are raised by the criminalization of possession of terrorist materials. To begin with however, it is necessary to set discussion of the scope and interpretation of the terrorist possession offences in its wider, post September 11, 2001 context when fears about the capacity of terrorists to inflict substantial and irreversible harms gained credence and thus quelled, to some extent, doubts over the legitimacy of liberty-reducing measures.81 The events at Madrid - Atocha Railway Station in March 2004,82 London in July 83 7 & 21,84 2005 and Glasgow Airport in July 200785 confirmed that ‘sleeper cell’ and home-grown terrorist activity had the capacity to strike at ordinary individuals and inflict human losses on a large scale. Other factors to cause heightened levels of anxiety included police claims to have foiled other significant plots (including one to blow up seven transatlantic flights departing from Heathrow Terminal 3 in August 2006),86 the reporting of criminal trials of the plotters,87 and the raised security alerts that have accompanied these events. Greater awareness too of the non-physical longer-term, psychological and social costs of terrorist incidents may play its own distinctive role currently in fuelling individuals’ fear of the consequences of terrorists’ actions. In such circumstances, politicians and security officials have stressed the need for anticipatory action on the part of the state to prevent future harms.88 Criminalizing the possession of documents and materials

81

As the first part of this chapter makes clear, it is also right to think of proscription offences as being anticipatory and disruptive to future terrorist activity. Arguably however (and a justification for slotting reference to the Catastrophic Harm Precautionary Principle into this section of the chapter), possession of a bomb-making manual is more proximate to such activity than the fact of political association (without more) among individuals. 82 ‘Bombers wreak havoc in Madrid’ The Guardian (2004) March 11. 83 ‘Transport chaos after London blasts’ The Guardian (2005) July 7; ‘Blair says ‘‘terror will not win’’’ (2005) July 7, BBC website at http://news.bbc.co.uk/1/hi/uk_politics/4659933.stm 84 ‘A sense of de´ja` vu, but these bombs were aimed at tourists, shoppers and schoolchildren’ The Times (2005) July 22. 85 ‘Britain under attack as bombers strike at airport’ The Times (2007) July 1. 86 ‘Bomb plot targeted seven Heathrow flights, court told’ The Guardian (2008) April 3. 87 ‘Police in crisis after jury rejects £10m terror case’ The Times (2008) September 9. 88 A Goldsmith, ‘Preparation for Terrorism: Catastrophic Risk and Precautionary Criminal Law’ in A Lynch, E McDonald & G Williams (eds.), Law & Liberty in the War on Terror (2007, Federation Press, New South Wales).

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that could be useful to terrorists is one type of pre-emptive measure that its supporters claim may avert a terrorist incident in the future or at least make such an event less likely. Failing to so act is said to create a risk that possession will, some point, facilitate the commission of a major terrorist outrage. Extrapolated to its logical end point, the argument could be put thus: unless we can be certain that possession will never pose a risk of facilitating terrorist activity, the mere possession of bomb-making manuals should always be an offence. In the academic literature, discussion about the concept of risk and the precautionary measures that might be taken to reduce risk has occurred with reference to the ‘Catastrophic Harm Precautionary Principle’ (hereafter ‘The Principle’). This has been defined by Sunstein in the following terms: when risks have catastrophic worst-case scenarios, it makes sense to pay special attention to those risks even when existing information does not allow regulators to make a reliable judgment about the probability that the worst-case scenarios will occur.89

The Principle has been applied to a variety of contexts including the environment and climate change, avian flu and pandemics more generally. Within the context of terrorism, the Principle could be read to argue controversially for criminalizing preparatory and facilitative conduct.90 At the level of political acceptability however, such liberty – reduction measures may command a degree of popular support. The events referred to at the beginning of this section of writing may have made the general population more risk-averse than they once were. That is to say, members of the public are currently less likely to discount as negligible their risk of being tragically caught up in a terrorist attack. We may not be sure how much more likely our involvement is but the fact that the risk is no longer negliglible inclines us to consider accepting a cost in terms of diminished personal freedoms. In any event, the loss of liberty may raise fewer protests when, as a matter of practice, a libertyreducing measure such as the criminalizing the possession of terrorist manuals impacts selectively and hence unevenly across different sections of the population. Moreover, the obvious difficulties in suggesting bona fide reasons for having in one’s possession a copy of The Mujaheddin Poisoner’s Handbook or an Al Qaeda training manual seems to strengthen the hand of those that would opt to invoke the full force of penal sanctions.

89

C Sunstein, Issues in Legal Scholarship: Catastrophic Risks: Prevention, Compensation and Recovery: Article 3 (2007, The Berkeley Electronic Press, California) http://www.bepress.com/ils/ iss10/art3. Sunstein argues that the principle as stated above requires considerable elaboration and refinement. His cost-benefit analysis of eliminating worst-case scenarios attempts to resolve some of the problematic features of the principle. It entails assigning probabilities to the various outcomes that can be considered catastrophic and then analysing the costs of eliminating that risk. 90 See further A Goldsmith, ‘Preparation for Terrorism: Catastrophic Risk and Precautionary Criminal Law’ in A Lynch, E McDonald & G Williams (eds.), Law & Liberty in the War on Terror (2007, Federation Press, New South Wales) at pp. 61–64.

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3.4.2

Northern Irish Prototype

For the purposes of domestic law, the criminalization of possession of articles or collection of information for purposes connected to terrorism is now set out in sections 57 & 58 of the TA 2000. The prototype offences that preceded ss. 57 & 58 were borne out of the struggle against Irish terrorism and took legal form in section 30 (possession of articles) and section 31 (unlawful collection, etc of information) of the Northern Ireland (Emergency Provisions) Act 1991, later re-enacted in a 1996 Act of the same name.91 The explicit target of s. 30 was dual-use materials which, whilst commonplace and having a non-violent application, could also be used in the manufacture of explosives. Under this section, it was an offence to possess an article giving rise to a reasonable suspicion that the item is in his possession for a purpose connected with the commission, preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland.

By criminalizing possession in those circumstances where a reasonable suspicion existed that the article was to be used in connection with terrorism, the offence switched the evidential burden of proof onto defendants and paved the way for the conviction of a number of persons in Northern Ireland.92 A defence existed for a person charged with this offence to adduce sufficient evidence to raise a reasonable doubt about his guilt. If such evidence was introduced, the burden of proof then shifted to the prosecution who had then to disprove the existence of the defence beyond all reasonable doubt.93 The rationale behind the provision was preventative, allowing the police to intervene in terrorist activity at an early stage prior to the planting of an explosive device.94 If the terrorist activity had reached a more advanced stage and other evidence was available, an alternative and more serious charge of conspiracy to cause explosions might have been preferred. The s. 31 offence of unlawful collection, recording or possession of information likely to be useful to terrorists was intended to deter the practice of acquiring data about future terrorist targets. This provision created a criminal offence 91

The 1996 Act was repealed in its entirety by the Terrorism Act 2000, s. 2(1) (b) & Schedule 16 Part 1. 92 An example given by the Rowe Review in 1995 was the conviction of a suspect stopped in the street and found to be carrying a quantity of twin-flex cable of the sort used for command wires in explosive devices, see Review of the Northern Ireland (Emergency Provisions) Act 1991 (JJ Rowe QC) Cm 2706 (1995, London, HMSO) at paras. 111–114. By 1996, the Inquiry into Legislation against Terrorism – Vol. 1 (Lord Lloyd of Berwick) Cm 3420 (1996, London, HMSO) noted that there had been twenty-four convictions under the 1991 Act, para. 14.3. 93 See further DPP v Kebilene [1999] 3 WLR 972 for discussion in the House of Lords of the compatibility of the reverse onus clause with Article 6(2) of the European Convention on Human Rights and P Roberts, ‘The Presumption of Innocence Brought Home?’ (2002) 118 LQR 41 and C Walker, Blackstone’s Guide to the Anti-Terrorism Legislation (2002, OUP, Oxford) at pp. 171–175. 94 Inquiry into Legislation against Terrorism at para. 14.5.

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where a person without lawful authority or reasonable excuse did (a) collect, record, publish, communicate or attempt to elicit any information with respect to any person to whom this paragraph applies which is of such a nature as is likely to be useful to terrorists; (b) collect or record any information which is of such a nature as is likely to be useful to terrorists in planning or carrying out any act of violence; or (c) have in his possession any record or document containing any such information as is mentioned in paragraph (a) or (b) above.

Once again, a reverse burden of proof was imposed upon the defendant to show in this case a ‘reasonable excuse’ for the collecting, recording, or possession of information caught by the section. Like the previous offence, this provision was considered to be preventative in nature, seeking to deter and disrupt future terrorist activity. The Rowe Review of the Northern Ireland (Emergency Provisions) Act 1991 referred to one example where the car registration numbers of persons holding certain offices in Northern Ireland had been found on a matchbox. Rowe stated that there had been ‘many convictions’ under this section.95

3.4.3

Terrorism Act 2000

According to Current Law States Annotated the successor offence set out in s. 58 of the TA 2000 is similarly aimed at ‘the intelligence gathering activities of terrorist organisations.’96 Whilst this is obviously true, it understates the full range of circumstances in which ‘possession’ under the 2000 Act provides the means for intervening and disrupting planned terrorist activity. Walker has more accurately labelled s. 58 (and s. 57) ‘precursor’ offences which ‘do not rely on the actus reus of a traditional crime- in other words harm to a person or damage to property. Instead, they facilitate intervention at an earlier preparatory stage, on the grounds that to await the commission of terrorism is too dangerous.97

Official statistics on prosecutorial practice indicate that, in 2006, there were 106 charges brought against persons under the TA 2000. The largest single category of charges related to offences under ss. 54–58 (ss. 54 & 55 relate to the offences of weapons training and directing terrorist organization) of which there were 39.98 Doubtless, the retention of reverse evidential burdens of proof in ss. 57 & 58 95

Cm 2706 (1995, London, HMSO) at para. 115. Lord Lloyd’s Report by contrast claimed that eight persons only had been convicted under the NI offence, see Cm 3420 at para. 14.8. 96 Current Law Statutes Annotated (2000) Vol. 1 (annotations by JJ Rowe QC). 97 ‘The United Kingdom’s Anti- Terrorism Laws’ in A Lynch, E McDonald & G Williams (eds.), Law & Liberty in the War on Terror (2007, Federation Press, New South Wales) at p. 190. 98 Lord Carlisle, Report on the Operation in 2006 of the Terrorism Act 2000 Annex C (2007, London). Walker notes that, during 2002 when the Act was first fully in force, 22 charges were brought under s. 57 and 6 under s. 58 out of a total of 48 charges, C Walker, ‘Terrorism: Terrorism Act 2000 s. 57 – direction to jury on defence of possession of items for defensive purposes’ [2008] Crim L Rev. 72 (citing Lord Carlisle, Report on the Operation in 2002 and 2003 of the Terrorism Act 2000 Annex D (2004, London).

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explains in part at least prosecutors’ preference for these charges, the terms of which are set out now. Section 57 Possession for terrorist purposes (1) A person commits an offence if he possesses an article99 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 (2) It is a defence for a person charged with an offence under this section to prove that his possession of the article was not for a purpose connected with the commission, preparation or instigation of an act of terrorism. Section 58 Possession for terrorist purposes (1) A person commits an offence if— (a) he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, or (b) he possesses a document or record containing information of that kind. (2) In this section ‘‘record’’ includes a photographic or electronic record. (3) It is a defence for a person charged with an offence under this section to prove that he had a reasonable excuse for his action or possession.

Although the courts have recently clarified that the reference to an ‘article’ in s. 57 is broad enough to include a document or record with the consequence that there is a considerable overlap between the two sections,100 it is s. 58 that has become a high profile tool in the armoury of prosecutors against defendants believed to be in possession of tracts concerning Islamic fundamentalist terrorism.101 The radical Islamic preacher Abu Hamza who was convicted in 2006 on several charges of incitement to murder and incitement to racial hatred was at the same time convicted of an offence under s. 58 in respect of his possession of the ten volume Encyclopedia of Afghani Jihad. The prosecution had claimed that the Encyclopedia was a ‘terrorism manual’ dedicated to Osama bin Laden and containing suggested targets that included Big Ben and the Eiffel Tower.102 The following year Samina Malik – a 23 year old WH Smith employee and the so-called ‘Lyrical Terrorist’ – was acquitted of a s. 57 offence and convicted under s. 58 for possession of a

99

An ‘article’ is defined in s. 121 of the Terrorism Act 2000 as including a ‘substance or any other thing’. 100 R v Rowe [2007] 3 All ER 36 and see for commentary C Walker, ‘Terrorism: Terrorism Act 2000 s. 57 – direction to jury on defence of possession of items for defensive purposes’ [2008] Crim L Rev. 72. 101 ‘Man admits to possession of terrorism recruitment dvds’ Yorkshire Post (2008) March 15. 102 The Guardian (2006) February 7 and see also the Crown Prosecution Service’s Press Release of February 7, 2006 at http://www.cps.gov.uk/news/pressreleases/archive/2006/105_06.html. Other sections of the 2000 Act may also be used where possession occurs. See also the arrest of Hicham Yezza and Rizwaan Sabir of the University of Nottingham in connection with Sabir’s emailing to Yezza of a declassified document – the Al Qaeda Training Manual – freely available on a US government website. Yezza was arrested under s. 41 of the Terrorism Act 2000 (instigation, preparation and commission of acts of terrorism) and later released without charge although was then re-arrested on immigration charges and ordered to be removed to Algeria. ‘’Draconian Home Office fast tracks Algerian’s deportation’ The Independent on Sunday (2008) May 25.

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‘library’ of documents that were likely to be useful to terrorists. The Old Bailey trial heard that, among the documents found at her home, police discovered copies of The Mujaheddin Poisoner’s Handbook, How to Win In Hand To Hand Combat, and How to Make Bombs.103 The sobriquet ‘lyrical terrorist’ derived from her poetical writings. Two poems were entitled ‘How to Behead’ and ‘The Living Martyrs’ and these formed part of the prosecution’s case before the jury.104 Malik had also described herself as such on a social networking site. She appealed against the conviction under s. 58 by which time the Court of Appeal in R v K had ruled that the s. 58 offence could only be committed if the document or record provided ‘practical assistance’ to a person committing or preparing an act of terrorism.105 In R v K it was held that a document that simply encouraged terrorist acts whilst falling short of offering practical help on how to commit them would not fall within s. 58. On Malik’s appeal to the Criminal Division of the Court of Appeal, the trial judge’s handling was found to have been faulty on two main grounds. Of the 21 documents relied upon by the prosecution, there had been a case to answer in respect of seven only. The trial judge had however let the jury consider the defendant’s liability under both section 57 and section 58 in respect of all 21 documents. In the Court of Appeal’s view, this meant there had been ‘scope for the jury to have become confused.’106 In addition, the trial judge had not directed the jury to consider the ‘practical assistance’ test.107 This raised the possibility that the jury might have convicted Malik on material which was not likely to provide practical assistance to a person committing or preparing an act of terrorism. The combined effect of these shortcomings was to render the defendant’s conviction unsafe.108

3.4.4

Facilitative Information: The Constitutionality of Prohibitions on Possession of Dual Use Materials

The Court of Appeal’s narrowing of s. 58 in Malik will have gone some way to reassure critics of the Old Bailey proceedings that the provision was being misused against persons who posed little threat to the physical safety of others. On further reflection, the case raises deeper, normative issues of principle concerning the 103

‘‘Lyrical terrorist’’ convicted for jihad poems’ The Times (2007) November 8; ‘‘Lyrical terrorist’’ convicted over hate records’ The Guardian (2007) November 8. On the content of these publications, see chapter by M Conway, ‘Terrorist Use of the Internet and Challenges of Governing Cyberspace’ in M Dunn, V Mauer & F Krishna-Hensel (eds.), Power and Security in the Information Age: Investigating the Role of the State in Cyberspace (2007, Ashgate, Hants). 104 A sticker bearing that phrase was found at her home. Note however that the prosecution described her as an ‘unlikely’ Islamic extremist whilst the trial judge Peter Beaumont QC considered her ‘in many respects a complete enigma’. 105 The Times (2008) February 18. 106 Ibid. 107 An understandable omission perhaps given that the Crown Court trial of Malik pre-dated R v K. 108 For a subsequent conviction of a15 year old youth under s. 58, see R v Munshi (2008) reported in ‘Two years detention for schoolboy terrorist groomed online’ The Guardian (2008) September 20.

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circumstances, if any, in which the state is entitled to criminalize the mere possession of information.109 It is clear that information can facilitate the commission of a criminal act. In some cases (as in a bomb-making manual) the information in question will supply the knowledge (or ‘practical assistance’) needed by a person who has formed a prior resolve to commit the crime. At other times, the information may relate tips for making the crime easier to commit/harder to detect. The speech involved in such cases is clearly different from speech that more straightforwardly incites the commission of crime. This latter category need not facilitate a crime in the sense of supplying practical information. Instead, inciteful speech is geared towards the encouragement of a person who may or may already possess the knowledge required to commit the crime. Models of possible regulation of inciteful speech are considered at greater length in Chap. 4 of this monograph, although it is right at this juncture to recall Volokh’s point that one piece of advocacy is unlikely by itself to create the desire needed to impel someone to an act of violence. The focus in the rest of the present discussion is with the possession of factual, facilitative expression. The position of disseminators of this type of material is discussed in Chap. 4. At an instinctive level, it is difficult to see why crime-facilitating expression should enjoy any constitutional protection whatsoever. For example, most readers would probably not demur from the US Court of Appeals’ (Fourth Circuit) refusal to extend First Amendment protection to Paladin the publishers of Hit Man – A Technical Manual for Independent Contractors. The point arose in a civil action for wrongful death against Paladin brought by the relatives of persons murdered by a contract killer who had used the manual.110 However, if the basis of legitimate restriction on expression in this example is the fact that the information in question facilitates criminal activity, it follows that a whole range of publications would require to be prohibited including those that reveal the URLs of web sites that infringe copyright or publish the names of witnesses in criminal trials, or discuss the nature of security checks at airports or even describe the layout of buildings. Google Earth would also find itself vulnerable to criminal sanction. That these suggested prohibitions seem excessive (even to persons in legal cultures much less speechprotective than that established under the First Amendment) points to a need to refine the initial basis of restriction. As Volokh observes, much of what counts as crime-facilitating expression is dual use.111 That is, co-existing alongside a harmful use to which an end-user might put such information, will invariably be a perfectly lawful use (or uses). In the case of Hit-Man, there is an obvious and lawful entertainment value to readers in learning about the modus operandi of contract

109

See E Volokh, ‘Crime-Facilitating Speech’ (2005) 57 Stan L Rev 1095. Rice v Paladin Enterprises 128 F. 3d 233 (1997) holding that the First Amendment did not present a bar to the civil action for wrongful death (and reversing District Court on the point). 111 Crime-Facilitating Speech’ (2005) 57 Stan L Rev 1095, 1105. 110

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killers, as well as an educative gain to the writers of crime fiction wishing to produce a convincing account of the same.112 Media revelations about weaknesses in airport security systems allows scientists, engineers and other informed commentators to participate in a public debate that scrutinizes the decisions of those responsible for airport security.113 The same disclosures would also allow such experts to engage with governments on a more confidential basis to upgrade systems. Consequently, air travel might in the longer term be made safer as a result of publicity. Conversely, a ban on public discussion of airport security might mean that no improvements to security were effected. Certainly, there would be little public pressure on the government to improve matters. Against this, it could be argued that the absence of accurate published information might make some wouldbe terrorists less inclined to carry out their murderous plans. However, it is reasonable to assume that more dedicated and ideologically-motivated criminals would seek out the relevant information from other sources rather than abandon operations entirely. In the case of a bomb-making manual, it is not implausible to suggest that the information contained therein about explosives can be useful to chemistry teachers and students, as well as the engineering and mining professions. Each of the foregoing legitimate uses of crime-facilitating speech can be linked to an audience-based, freedom of expression rationale. The writer of crime-fiction for example may wish to become more knowledgeable about terrorists’ activities in order to develop a successful writing career. The knowledge here promotes autonomy and individual self-fulfilment in terms of advancing in one’s chosen career. The same value is promoted in the case of a mining engineer with access to an explosive manual. Those possessing information about airport security failings can, by virtue of this fact, be more effective in making the government accountable for those failings. In this instance, possession can be said to promote both informed democratic control over elected office holders and improved public safety. After the Human Rights Act 1998, the ‘reasonable excuse’ defence for possession in s. 58(3) of the UK’s TA 2000 must be given where possible a Convention-compliant reading. How ought we to ascertain whether a particular instance of possession falls within the protective ambit of s. 58(3) as mediated by the guarantee of freedom of expression in Article 10 of the European Convention on Human Rights? A principled baseline from which analysis can be developed is provided by established free speech rationales, principally the arguments from democracy and individual autonomy. Having identified which, if any, of these rationales are relevant to any particular

112

I am ignoring here the obviously legitimate interests that the intended target and criminal detection agencies would have respectively in learning about the conduct of contract killers although this argues for lawful dissemination and possession to a more limited extent. 113 A good recent example of which is provided by an article in The Times ‘‘Fakeproof’ e-passport is cloned in minutes’. The article revealed how new and apparently secure micro-chipped passports could be cloned relatively easily. In one instance a baby boy’s passport was altered to contain an image of Osama bin Laden. When tested against the software that is recommended for identity checking purposes at international airports, the altered passport was deemed to be genuine. The article revealed details of how the cloning was carried out, The Times (2008) August 6.

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possession offence, an assessment can next be made of the weight that should be attached in those circumstances to the fact of possession. Plainly, the weight of any countervailing state interest in penalizing possession must also be factored into the analysis. The conclusions reached in such an exercise will depend to some degree on whether the expression interest behind possession is accorded a ‘presumptively constitutional’ status, in which case the onus falls on the state to show good/ compelling reasons why possession ought nonetheless to be criminalized. Alternatively, if the individual interest in possession and the state interest in criminalization start on an equal footing, then the lawfulness of possession will hinge on the outcome of any ‘balancing’ exercise in which the ‘heavier’ or more substantial interest will prevail. In the opening chapter, I argued for an essentially Dworkinian conception of rights that required exceptional reasons for an individual rights claim to be trumped by an opposing policy interest in collective welfare or the general good of the community. Unless the state interest in suppression can be re-cast as a composite of individual interests (as in the right to life and freedom from physical harm), it follows that a presumptive (though rebuttable) priority in favour of the individual right to freedom of expression ought to be applied. The case for applying the ‘presumptively constitutional’ approach to possession of materials is strengthened by the fact that the s. 58 TA 2000 offence is laid down in considerably broader terms than possession of harmful materials offences elsewhere in the criminal law. Consider the possession of racially or religiously inflammatory material in Part III of the Public Order Act 1986 Act (as amended). As regards racially inflammatory material, possession of racially threatening, abusive or insulting material is an offence where this occurs with a view to the material being displayed, published, distributed etc. and the possessor intends to stir up racial hatred or, ‘in all the circumstances, racial hatred is likely to be stirred up thereby.’114 The equivalent offence in respect of religiously inflammatory material requires the possession of threatening materials to be with a view to display, publication, distribution etc. where the possessor intends religious hatred ‘to be stirred up thereby.’115 By contrast, the section 58 TA offence does not require the prosecution to show that the material in question was being held for a specific communicative purpose. The fact of possession alone is sufficient.116 Giving effect to a presumption of lawful possession of dual-use materials as part of the ‘reasonable excuse’ defence would then place the onus upon the prosecution

114

S. 23, Public Order Act 1986. S. 29G, Public Order Act 1986. This provision has since been extended to material that is inflammatory on sexual orientation grounds. See Criminal Justice and Immigration Act 2008 s. 74, Sch 16 paras. 1, 11. 116 A defendant could of course be unaware that in his possession are materials covered by s. 58. Unlike s. 23(3) of the Public Order Act 1986 however, the 2000 Act lacks an express defence of being unaware, and having no reason to suspect the content of the written material. For another example where mere possession is sufficient to ground liability, see now the possession of extreme pornographic images under the Criminal Justice and Immigration Act 2008, s. 63. The Act does provide a defence s. 65 where there is a reasonable reason to explain the fact of possession. 115

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to dislodge the presumption – a task that would be made considerably easier where the circumstances of possession (say of a bomb-making manual) lacked a clear connection to an established free speech rationale. This could be because the defendant was not a chemistry teacher, a journalist writing on security matters, or a crime-fiction writer. In those instances where a relatively weak speech interest was raised by the possessor (for example where there is a wish merely to be entertained by the contents of a bomb-making manual), it would require a commensurately slight amount of contrary evidence that pointed to the likely unlawful purpose behind possession in order to upset the presumption.

3.5

Conclusion

(W)hen the unity of the polity begins to crack but is in no imminent danger of collapse, it seems better to reinforce rather than weaken political rights. M. Rosenfeld (2006)118

It is fair to say that the Labour Government’s introduction of new powers to proscribe political associations and new possession offences has not commanded the critical attention that either has merited. The analysis in this chapter has sought to address this state of affairs, locating developments within the wider frame of ‘strong-arm’ defences of democracy captured by the notion of ‘militant democracy.’ This frame is also employed in the following chapter where another core element of UK counter-terrorism laws are considered – namely new criminal prohibitions on the glorification and indirect incitement of terrorism. The argument in this chapter has been that Labour’s counter-terrorism strategy is rightly characterized as corrosive of individual freedom and diametrically opposed to Rosenfeld’s entreaty to bolster political rights when the polity is not (and has not been) in danger of imminent collapse. The retreat from individual freedoms charted above has already begun to prove counter-productive. The insertion of a motive component into the definition of terrorism can be traced to Prevention of Terrorism legislation in the 1980’s. At that time, the freedom of expression concerns raised by the inclusion of motive barely registered. Today, over a decade since the passing of the Human Rights Act, the Independent Reviewer’s failure to address the Article 10 ECHR issues is less easily comprehended. The arguments for retaining motive are not only unpersuasive but also play into the hands of the proponents of violence and intimidation. A commitment to the essence of constitutionalism challenges us to articulate in principled terms when, if at all, reductions in core civil and political freedoms might be justified. This entails as a preliminary step a restatement of the reasons liberal democracies value freedom of expression and association, including and especially unpopular 118

‘A Pluralist Theory of Political Rights in Times of Stress’ in W Sadurski (ed.) Political Rights under Stress in 21stCentury Europe (2006, OUP, Oxford) at p. 44.

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expression and minority associations. Public discourse currently lacks such a principled articulation. Instead, we seem more receptive to speculative assessments of future possible harms and risks and thereby more easily persuaded by the case for anticipatory, rights-reducing action. In such a climate, as Kostakopolou notes, there is a real danger that liberty can be turned into ‘a weak background assumption.’119

119

D Kostakopolou, ‘How to do things with security post 9/11’ (2008) 28 OJLS 317, 324.

Chapter 4

Incitement and Glorification of Terrorism

If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people. James Madison (1794) 4 Annals of Congress 934 I do not consider the prosecution as particularly levelled against me, but against the general right, or the right of every man, of investigating systems and principles of government, and showing their several excellencies or defects. Thomas Paine (1792) Letter Addressed to the Addressers1

4.1

Introduction: Sedition, Subversive Advocacy and Pathology

The US First Amendment scholar Vincent Blasi defined pathological periods as occurring intermittently and marked by ‘the existence of certain dynamics that radically increase the likelihood that people who hold unorthodox views will be punished for what they say or believe.’2 For First Amendment historians, the Sedition Act 1798 constitutes the first significant attempt to penalize political dissent.3 Enacted by the governing Federal Party of President Adams to silence its Republican Party critics, the 1798 Act prohibited the writing, printing uttering or publishing of ‘false, scandalous and malicious statements against the federal government, either House of Congress, or the President.’ Although the records show that ten cases were successfully prosecuted,4 the higher courts were not given 1

Reproduced in M Foot & I Kramnick, The Thomas Paine Reader (1987, Penguin Books, London) at p. 377. 2 ‘The Pathological Perspective and the First Amendment’ (1985) 85 Colum LRev. 449. 3 G R Stone, Perilous Times: Free Speech in Wartime From the Sedition Act of 1798 to the War on Terrorism (2004, WW Norton & Co, New York) at pp. 33–66. 4 Ibid. at p. 63.


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4 Incitement and Glorification of Terrorism

an opportunity to pass judgment on the constitutionality of the 1798 Act because Adams’ Federalists were defeated in the elections of 1800 and replaced by the Republican Party led by Thomas Jefferson. By s. 4 of the Act itself, the measure expired on March 4, 1801. Nonetheless, on assuming office, President Jefferson stated that he considered the law a nullity and pardoned everyone convicted under its terms.5 There is evidence that Congress too came round to the view that the Act was unconstitutional. Persons who had been fined were reimbursed by Act of Congress on the basis that the measure was invalid.6 The very act of entrenching rights and freedoms in a Bill of Rights naturally unleashes debate about the underlying purpose(s) behind the fact of constitutional protection. Although in the case of free speech, this debate may not have started in earnest until the series of Holmes and Brandeis dissents in the subversive advocacy cases at the end of World War One,7 from this time on, judges, legislators scholars, members of media organizations and ordinary individuals have participated in a multi-stranded conversation about the nature, meaning and scope of the First Amendment. An extraordinarily rich and contested set of discussions regarding the constitutionality of federal and state restrictions on inter alia subversive advocacy has since occurred. In England (and the UK more broadly) by contrast, no such similar conversation has occurred and the ‘constitutionality’ of laws limiting freedom to criticize the state, undermine it or advocate the overthrow of the government (whether by direct or indirect incitement) is largely presumed. The absence until 1998 of a constitutional guarantee for freedom of expression has long exposed the promulgators of political dissent to the vicissitudes of imaginative prosecutors, intolerant judges and repressive Parliaments. Our ‘pathological’ moments, it might be said, have occurred with a troublesome frequency. Currently, the so-called ‘war on terror’ promises us a prolonged period of pathology. Parliament has decided that the dangers posed by some extreme forms of Islamic fundamentalism require yet further closing down of the channels of political expression in order to ‘re-calibrate’ the liberty-security scales towards greater security. By contrast, discussion of the rationale(s) behind freedom of expression

5 Letter to Mrs Adams, July 22, 1804 cited by L Fisher, Constitutional Rights: Civil Rights and Civil Liberties – Vol 2 American Constitutional Law (1995, McGraw-Hill, New York) at 643. For discussion of whether the’pathological’ periods in US history have been intermittent or more or less enduring, see MH Redish, The Logic of Persecution – Free Expression and the McCarthy Era (2005, Stanford University Press, California) at ch. 3. 6 Act of July 4, 1840, c. 45, 6 Stat. 802, accompanied by H. R. Rep. No. 86, 26th Cong., 1st Sess. (1840). In a report to Senate in 1836, the invalidity was said to be a matter ‘which no one now doubts.’ Report with Senate Bill No. 122, 24th Cong., 1st Sess., p. 3. 7 Abrams v US 250 US 616 (1919); Gitlow v New York 268 US 652 (1925): Whitney v California 274 US 357 (1927). For the influence of the English academic Harold Laski, LSE Professor of Political Science on Holmes’ free speech jurisprudence, see I Krammnick, ‘Liberalism, Marxism and the Enlightenment: the Case of Harold Laski’ in (ed. B Yack) Liberalism without Illusions: Essays on the Liberal Theory and Political Vision of Judith N Shklar (1996, Univ. Chicago Press, Chicago) and see also M Howe, Holmes – Laski Letters: the Correspondence of Justice Oliver Wendell Holmes and Harold J Laski (1963, Holiday House, New York).

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has been conspicuous by its absence. It is difficult to avoid the conclusion that the residual nature of the protection of individual freedoms in domestic law pre 1998 has stifled (and may still inhibit) an equivalent conversation on this side of the Atlantic about why freedom of expression is considered valuable. Of course, references to the importance of freedom of speech can be found in the period before 1998 in parliamentary debates and judicial dicta. My point is rather that these have been made, if at all, in passing or weakly as a rhetorical flourish as if paying lip service to an ideal of constitutionalism (namely the importance of individual rights) without reference to relevant theoretical underpinnings. At times of official anxiety about the spread of radical ideas – our own pathological moments – we find in domestic legal history an automatic reflex whereby unorthodox opinion is quickly suppressed. Parliament and the courts have each silenced ‘dangerous’ speakers. Critically, in the absence of any philosophical justification for speech there has often been no clear sense in our constitutional history of when expression might be legitimate and worth defending or, conversely, when countervailing interests ought to trump speech claims. Without an articulated notion of ‘legitimate expression’, it then becomes extremely difficult to claim that new sets of restrictions impinge ‘improperly’ or ‘excessively’ upon legitimate expression. This chapter argues that the most recent efforts to close off avenues of political dissent in the Terrorism Act 2006 have benefited directly from the legacy of under-theorized accounts of why expression matters. The suppression of unorthodox opinion has encountered scant resistance beyond the limited confines of dissident MPs and peers, selected media outlets and legal/academic circles. The criminalization of persons who ‘indirectly encourage’ terrorism by praying to Allah for the victory of the mujihadeen has been accomplished without meeting the widespread resistance it might have faced in a different constitutional culture. The targeting of the expressive activities of fringe members of Muslim communities in the UK has apparently not troubled non-Muslim sectors of the population. In the place of a robust theoretical or constitutional foundation for freedom of expression in domestic law, I have argued elsewhere that our political culture has tended implicitly to accept majoritarian restraints on unorthodox speech as reflecting the democratic will of the people.8 As Rosenfeld has remarked, the emphasis in communitarian thinking upon solidarity and shared values that bind its members together means that an individual who dissents and departs from these values ‘places herself outside her community’ in what appears to be an act of betrayal by aligning in effect with some rival community.9 In the current domestic climate, whilst retaining their identities as members of a distinct religious minority, Muslim citizens are nonetheless expected to demonstrate a degree of commitment to the British state and thereby acquire and develop a common identity with their fellow non-Muslim counterparts. The setting up of Preventing Extremism Together by the

8

Contested Words (2006, Ashgate, Hants). M Rosenfeld, ‘A Pluralist Theory of Political Rights in Times of Stress’ in (ed. W Sadurski) Political Rights under Stress in 21stCentury Europe (2006, OUP, Oxford) at p. 29.

9

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Government in the aftermath of the July 2005 London bombings sought to bring elements of Muslim communities together to produce practical proposals to tackle the problem of violent extremism.10 A specific concern identified by the working groups involved in this project was the radicalization of young Muslims and the desire to forge a British Muslim identity via a ‘British Muslim Citizenship Toolkit’ to deal with ‘violent/fanatic tendencies.’11 There can be little scope here for distrust of the state’s motives for wanting to censor dissenting speech. The concern that certain unpopular viewpoints will be excluded from public discourse altogether barely registers in this drive for shared values. Instead, restrictions on extremist speech (alongside those that are aimed at expression considered to incite racial and now religious hatred) are largely accepted.12 The promotion of values such as intergroup tolerance provides the basis upon which these limitations on expression have been advanced. In the case of terrorist-related offences, restrictions upon the indirect encouragement of terrorism have reached the statute book on the back of putative links between expression and the recruitment of new generations of bombers. Reflecting a wider European unease with speech that appears to endorse or celebrate the actions of those engaged in terrorist activities, I will argue that domestic restrictions in the Terrorism Act 2006 go even further than is required under the Council of Europe’s Convention on the Prevention of Terrorism and present a troubling, though hardly unexpected, development in domestic law. Where, as in the case of seditious or subversive speech, the unpopular expression may include the advocacy of anti-democratic norms, any pathological tendencies on the part of the state may be explained by reference to the idea of ‘militant democracy’ The linkage between current counter terrorist measures and militant democracy was touched upon in Chaps. 1 and 3. The history of domestic sedition laws reveals a pattern of state suppression of anti-government or anti-establishment religious views in the form of vaguely-drafted common law prohibitions, supplemented by statutory additions intended to clamp down on specific threats to peace in the realm (real or imagined). The state has been able to press into service a range of common law and statutory offences to maintain its control over dissentient expression. Reflecting in its earliest legal form a strongly hierarchical view of the state-subject relationship, the emergence of laws of sedition rests upon the premise of an all wise and knowing sovereign power who stands in a rightfully superior relation to his subservient and less knowledgeable subjects. In such circumstances, the toleration of public censure of the ruler makes no sense at all. Whilst the authority of the leader is possibly diminished by censure, this loss occurs without any commensurate gain of being led more intelligently. It may be no coincidence then that the narrowing of scope, and diminished relevance of sedition laws in the 10

Preventing Extremism Together August – October 2005 Working Groups available electronically at http://www.communities.gov.uk/documents/communities/pdf/152164. The response of the Home Office is to be found at http://www.communities.gov.uk/documents/communities/pdf/ 152164. 11 Preventing Extremism Together August – October 2005 Working Groups Recommendation 11. 12 Racial and Religious Hatred Act 2006 inserting Part 3A into Public Order Act 1986.

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regulation of political dissent gathered pace in the late nineteenth and early twentieth century. Accompanying the advent of mass universal suffrage when ordinary non-property owing individuals were entrusted with the task of determining the political direction of the nation, there is a growing acceptance of the idea that, in a system of democratic self-government, the citizens ought to be able to question the wisdom of policy decisions taken on their behalf. This paradigm shift is reflected in cases such as Aldred 13 and Burns14 in the late nineteenth/ early twentieth century. These rulings established that the actus reus of the offence required the prosecution to show that the words used had a tendency to incite public disorder involving violence (irrespective of whether violence and disorder did actually result). As a result, the focus of the offence was shifted away from the contents-based nature of insult caused to the ruler (and the latter’s consequent loss of authority and status) and towards contents-neutral concerns of public safety and maintaining the peace. The fact that seditious libel laws were successfully resurrected in the 1920s against members of the Communist Party of Great Britain after a period of some considerable non-use fits within a broader picture of flexible, common law-led restraints on the political activities of groups (such as workers) considered to pose a threat to political and economic stability. In the civil law, judicially created torts developed new forms of liability for trades unions.

4.2

Sedition Laws from the Divine Right of Kings to The Satanic Verses

The second class of offences against internal public tranquility consists of offences not accompanied by or leading to open violence. They may be classified under the general heading of seditious offences, and more particularly seditious words, seditious libels and seditious conspiracies. All these offences presuppose dissatisfaction with the existing government . . . and consist in the display of this dissatisfaction. . .15

According to Stephen’s History of the Criminal Law of England, the Tudor and Elizabethan eras dealt with political dissent under a variety of treason statutes.16 By the early part of the seventeenth century, laws of sedition had however begun to play a key role in the suppression of hostile political opinion. Stephen notes that prosecutions for seditious words had become ‘as common as prosecutions for 13

(1909) 22 Cox’s Criminal Cases 1. (1886) 16 Cox’s Criminal Cases 355. 15 Sir James Fitzjames Stephen, A History of the Criminal Law of England (1883, Macmillan & Co, London) Vol II at 298. 16 The original Statute of Treason 25 Edw. 3 dates from the reign of Edward III in 1352 and sets out three heads of treason; imagining the king’s death, levying war and adhering to the king’s enemies. Stephen details the extension of treason through other statutes passed in the reigns of subsequent monarchs.’ See ibid., ch. XXIII. See generally L Lustgarten & I Leigh, In From the Cold – National Security and Parliamentary Democracy (1994, Clarendon Press, Oxford) chs. 8–10 for a valuable discussion of issues touched on below. 14

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libels.’17 In 1629, against a background of fears that Charles I was keen to re-introduce Roman Catholicism and concerns about the imposition of new taxes, Sir John Eliot, Denzil Holles and Benjamin Valentine were prosecuted and convicted of seditious conspiracy to disturb Parliament.18 Eliot had been objecting in a parliamentary debate to the imposition of new duties when the King commanded the Speaker to adjourn Parliament. Holles and Valentine led a group of members who held Speaker Finch in his chair so that, in Holles’ reputed words, ‘he would sit til they pleased to rise.’ One member even locked the door of the chamber and kept hold of the key.19 After the English Civil War, Cromwell, fearing an outpouring of ungodly and dissenting opinion, notoriously introduced a system of licensing for books, an early form of prior restraint that prohibited all printing without the formal approval of the state.20 This system which outlasted the brief period of republicanism in England would have stemmed to some degree the flow of political expression that was hostile to orthodox opinion. The Licensing Act of 1662 declared that no person shall presume to publish seditious . . . books or pamphlets wherein any doctrine or opinion shall be asserted or maintained which is contrary to Christian faith or the government or governors of the Church, State or Commonwealth.21

Nonetheless, the volumes of State Trials covering the late seventeenth century period continued to document the prosecution of individuals for ‘seditious words’ that today seem lacking in any subversive force, although it is important to recall the politically volatile conditions in which they were uttered.22 Sir Samuel Barnardiston was tried and convicted for writing four private letters to his friend in which he asserted that ‘the Papists and high Tories are quite down in the mouth.’ Barnardiston was fined the huge sum of £10,000 by Jeffrey J. who, in breach of any recognizable notion of natural justice, proceeded to try the matter when he had too had been referred to by the defendant in one letter as having ‘grown very humble.’23 In the latter part of the eighteenth century, John Wilkes and Tom Paine were separately prosecuted and convicted for seditious libel. Wilkes’ crime was to publish The North Briton No.45 in which he attacked not only the Earl of Bute and other 17

Ibid., at p. 307. The convictions were quashed some 39 years later by a writ of error brought by Holles himself which helped establish that the common law courts had no jurisdiction to try members of Parliament for matters connected to their conduct in Parliamentary proceedings. 19 For an account see JP Kenyon, The Stuart Constitution 1603–1668 (1966, CUP, Cambridge) at p. 28 et seq. 20 See John Milton’s Areopagitica famous and eloquent criticism of the licensing system. 21 13 & 14 Chas. 2, c. 33. The prohibition was renewed by successive Acts of Parliament until 1694 when the entire system of licensing collapsed. 22 Stephen relies upon the diarist Narcissus Luttrell for the claim that in the period between April 30 and November 28, 1684, there were sixteen trials on charges of political libel and seditious words, see Stephen op.cit. at 313. Luttrell was the author of the six volume A Brief Historical Relation of State Affairs from September 1678 to April 1714 (1862, Oxford). 23 9 State Trials 1551. 18


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ministers but also the King himself for agreeing to the terms of the Treaty of Paris 1763. Wilkes’ view was that the treaty amounted to a dreadful capitulation to French interests.24 In 1792, the author of The Rights of Man was convicted in his absence (having left for France) for having actively supporting the revolutions in France and America and vilified the King.25 At this time, Fox’s Libel Act 1792 reformed the law of seditious libel to make juries rather than judges the arbiter of whether a publication was seditious. The effect of the reform was to reduce the likelihood of proceedings being brought, and, where they were brought, the chances of a conviction. Over 100 years later, Coleridge J in Rex v Aldred remarked that prosecutions for seditious libel were rare. Nonetheless, the action was still ‘liable to be abused, and if it is abused, there is one wholesome corrective, and that is a jury of Englishmen such as you.’26 Academics have tended to endorse this view. Street cites Fox’s reform as a critical moment in cutting back on the scope of seditious libel.27 In the nineteenth and twentieth centuries, it is true that a number of seditious libel prosecutions did subsequently fail before juries.28 Whether the judges played a distinct role in what amounted to an effective relaxation of seditious libel laws is also worth a moment’s thought. One suggestion is that in the face of enlightened public opinion, the judges merely bowed to the inevitable demand for more expressive freedom. An alternative explanation is that, far from being passive followers of jury sentiment, the judges were actively and genuinely persuaded of the need for a greater measure of protection for political dissent. There is some evidence to support the view that trial judges did indeed play their own part in nudging juries to be more indulgent of nonconformist and even potentially subversive opinion. Moreover, it can be argued that this occurred in fact because of a passing awareness of the importance of freedom of expression to informed self-government. Consider for example, the Old Bailey trial of Burns, Champion, Hyndman and Williams in 1886.

24

J Sainsbury, John Wilkes: The Lives of a Libertine (2006, Ashgate, Hants) at pp. 67–68. Wilkes had written in North Briton No. 45, ‘I wish as much as any man in the kingdom to see the honour of the crown maintained in a manner truly becoming Royalty. I lament to see it sunk even to prostitution.’ 25 J Keane, Tom Paine A political life (1996, Bloomsbury, London) at pp. 334–348. See also C. Hitchens, Thomas Paine’s Rights of Man: A Biography (Books that Shook the World) (2006, Atlantic Books, London) where there is an account of the proceedings against Paine, at pp. 52–55. The prosecution made clear its view that Paine’s offence went beyond attacking the monarch, extending to an assault upon the fundamentals of the ‘Glorious Revolution’ of 1688 itself. As a historical footnote, the trial itself is noteworthy on account that the prosecution was led by Spencer Perceval, subsequently to be Prime Minister and the only occupant of that office to be assassinated. For a good account of the history of seditious libel up until this point, see the judgment of Lord Mansfield in R v Shipley (Dean of St Asaph’s case) (1783) 21 State Trials 847. 26 (1909) 22 Cox’s Criminal Cases 1, 4. 27 H Street, Freedom, The Individual and the Law (5th edn., 1982 Penguin Books, London) ch. 9. D Feldman, Civil Liberties and Human Rights in England and Wales (1999, OUP, Oxford) at pp. 897–898. 28 See also M Lobban, ‘From Seditious Libel to Unlawful Assembly: Peterloo and the Changing Face of Political Crime c. 1770–1820’ (1990) 10 OJLS 307. Lobban notes that, around the time of the Peterloo Massacre in 1819, the prosecuting authorities began charging those present at protest meetings with unlawful assembly, at 340.

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Speeches made by the defendant members of the Marxist Social Democratic Federation at public meetings in Trafalgar Square and Hyde Park had been followed by riots in which considerable damage to property occurred.29 Adhering to Fitzgerald J’s definition of ‘seditious’ in Reg. v Sullivan (involving an alleged printed seditious libel) as all those practices which have as their object to excite discontentment or disaffection, to create public disturbances, or to lead to civil war; to bring into hatred or contempt the Sovereign or the Government, the laws or constitution of the Realm, and generally all those endeavours to promote public disorder30,

the jury was told by the trial judge Cave J. to decide whether the defendants had the necessary intention either to ‘excite Her Majesty’s subjects to attempt otherwise than by lawful means the alteration of some matter in Church or State’ or to promote ill-will between different cases of Her Majesty’s subjects.31 Cave J approvingly cited Fitzgerald J’s instruction to the Sullivan jury in that it should approach the case in a free, fair and liberal spirit. You should recollect that to public political articles great latitude is given (which). . . if written in a fair spirit and bona fide, often result in the production of great public good. Therefore I advise you and recommend you to deal with these publications in a spirit of freedom, and not to view them with an eye of narrow criticism.32

If the speakers at Trafalgar Square and Hyde Park had each been motivated by a genuine desire to alleviate the condition of the unemployed by bringing the matter to the attention of the public, then no defendant should be punished for an isolated ‘hasty or ill-considered expression.’33 Given this steer, the jury unsurprisingly acquitted all four defendants on all counts arising from both the Trafalgar Square and Hyde Park meetings. Another beneficiary of robust judicial protection for free expression was the editor of the Morecambe and Heysham Visitor in R v Caunt.34 At a time when British soldiers were being attacked by Jewish combatants in Palestine, the editor had used an article in the newspaper to complain about the alleged blackmarket activities of Jewish persons in the following terms: If British Jewry are suffering the righteous wrath of British citizens, they only have themselves to blame for their passive inactivity. Violence may be the only way to bring them to sense of their responsibility to the country in which they live.

At Caunt’s trial at Liverpool Assizes for publishing a seditious libel, the trial judge Birkett J. is recorded as stressing the ‘great role which the jury had to play in protecting freedom of the Press.’35 The jury was plainly persuaded that the editor

29

Reg. v Burns & Others (1886) 16 Cox’s Criminal Cases 355. Reg. v Sullivan (1868) 11 Cox’s Criminal Cases 44. 31 Reg. v Burns & Others (1886) 16 Cox’s Criminal Cases 355, 360. 32 Ibid., at 362. 33 Ibid., at 363. 34 (1943) 64 LQR 203. 35 H Street, Freedom, The Individual and the Law (5th edn., 1982 Penguin Books, London) at 209. 30


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had not intended to advocate a violent response, rather he was predicting in more neutral terms that violence against Jewish persons might well result if they did not alter their conduct.36 Just how much the judge and jury were influenced by anti-semitic sentiments is, of course, difficult to assess, although this aspect of the vindication of press freedom has tended to be overlooked by commentators.37 For all the speech-protective signals emanating from Burns and Caunt, it would be wrong to infer that the offence of seditious libel had been put into total abeyance. Whilst it may have ceased to play a role in the regulation of socialist or anti-Jewish expression, other perceived threats to the state were still successfully prosecuted under this head without being unduly hindered by awareness of the deleterious consequences for informed self-government. Official nervousness about violent forms of Indian nationalism and the spread of Soviet-style communism provided the context for counter examples of successful prosecutions for subversive advocacy before juries in the early part of the twentieth century. In Rex. v Aldred the publisher of the Indian Sociologist was convicted of seditious libel in respect of an newspaper articles praising as ‘martyrs’ persons convicted and executed for violent acts (including murder) against British subjects in India and London and justifying in general political assassination against the imperial class.38 The jury concurred in the view that the publication met the test for liability set out by Coleridge J, namely being ‘calculated to promote public disorder or physical force or violence in a matter of State.’ A central issue in the 1924 General Election was whether the outgoing Labour Administration of Ramsay McDonald had been right to confer diplomatic recognition on the Soviet Russia. The Conservatives were opposed to the move, raising fears of a Bolshevist takeover in Britain. The Daily Mail published the ‘Zionviev’ letter which purportedly came from the president of the Third International in Moscow and referred to the importance of spreading the ideas of Leninism in England and developing the military wing of the Communist Party of Great Britain who would give future direction to the British Red Army. The letter is now considered to have been a hoax.39 At the time, it helped the Conservatives to defeat the Labour Party at the 1924 General Election.40 In this hostile, indeed febrile anti-Soviet atmosphere, 12 members of the Communist Party of Great Britain found themselves arrested and charged inter alia with conspiracy to publish and utter seditious libels and words. Much of the prosecution case rested on documents seized from party members.41 36

For a short comment, see ECS Wade, ‘Seditious Libel and the Press’ (1948) 64 LQR 203. See exceptionally A Bradley & K Ewing, Constitutional and Administrative Law (14th edn.) (2007, Pearson, Harlow) at p. 552. Today, an editor repeating Caunt’s remarks would risk a prosecution for incitement to racial hatred under Part III of the Public Order Act 1986, s. 18 by using ‘threatening words . . . in circumstances in which racial hatred is likely to be stirred up.’ 38 (1909) 22 Cox’s Criminal Cases 1. 39 G Bennett, ‘A Most Extraordinary and Extraordinary Business’: The Zionviev Letter of 1924 published electronically at http://www.fco.gov.uk/Files/kfile/ca206077inoviev-2fchapter1,0.pdf. 40 The Conservatives regained power, winning 419 out of 615 seats in the Commons. 41 See further K Ewing & C Gearty, The Struggle for Civil Liberties (2000 OUP, Oxford) at pp. 136–144. 37

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Before retiring, the jury was told by Swift J that it would be a ‘bad day for the country’ if either the government was not strong enough to bring those suspected of sedition before the courts or if juries or judges faltered in ‘putting down the offence.’42 The jury took ten minutes to return unanimous verdicts of guilty against all defendants on all counts.43 A recent statement of the nature of the mens rea of seditious libel is provided by the Divisional Court in R v Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury which considered whether the magistrate had acted unlawfully in refusing to issue a summons against the author Salman Rushdie and the publishers of The Satanic Verses for seditious libel.44 The applicants argued that the book had caused widespread discontent and disaffection among the Queen’s subjects. The Court followed the Canadian Supreme Court ruling in Boucher v The King in holding that an intention to promote feelings of ill-will and hostility between different groups did not by itself establish a seditious intention.45 The critical factor was proof of an intention to incite violence or resistance or defiance ‘for the purpose of disturbing constituted authority’, meaning a person or body ‘holding public office or discharging some public function of the state.’46 Declining to interfere with the magistrate’s refusal, the Divisional Court placed weight on the fact that the materials in ex parte Choudhury disclosed no such intention on the part of the author or his publishers. The death-knell for seditious libel has probably been sounded by the English courts in the post Human Rights Act era. In R (on the application of Green) v Westminster City Council a joint judgment from Hughes LJ and Collins J declared obiter that it would be ‘difficult if not impossible to envisage circumstances today in which a prosecution for seditious libel would be appropriate.47 The remarks were made by the High Court when refusing to interfere with a district judge’s refusal to issue a summons for blasphemous libel against the producer of a stage play Jerry Springer: The Opera and the BBC who subsequently screened the play.48 The regulation of subversive advocacy has not however been the exclusive preserve of seditious libel. Statutes supplementing the common law of seditious libel were regularly enacted by Parliaments in response to specific threats, real and imagined. Parliament too displayed a degree of flexibility (and prosecutors some 42

Ibid., at 143–144. The pursuit of communists in other democracies for seditious speech has been well documented, see inter alia Australian Law Reform Commission Fighting Words – A Review of Sedition Laws in Australia – Report 104 (2006 Canberra, ALRC); L Maher, ‘The Use and Abuse of Sedition’ (1992) 14 Syd L Rev 287. 44 [1991] 1 QB 429. 45 [1951] 2 D.L.R. 369 citing in particular the judgment of Kellock J. There is a suggestion to the contrary by Birkett J in Caunt. 46 [1991] 1 QB 429, 453. 47 [2008] HRLR 12. 48 The common law offence of blasphemous libel has also been abolished, see s. 79, Criminal Justice and Immigration Act 2008. 43


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imagination) in finding new forms of liability for radical speakers. Consider for example the Preamble to the Seditious Meetings Act 1795 which referred to divers persons, collected for the purpose of, or under the pretext of deliberating upon public grievances . . . have of late been made use of to serve the ends of factious and seditious persons, to the great danger of the public peace, and may become the means of producing confusion and calamities in the nation. . .

The Act outlawed meetings exceeding 50 persons where the purpose of the meeting was the alteration of Church or state matters, unless (in a foreshadowing of s. 11 of the current Public Order Act 1986) 5 days prior notice of the meeting had been publicly given.49 The Incitement to Mutiny Act 1797 was passed in the aftermath of naval mutinies at the Spithead and Nore upon the unfounded belief that sailors were being incited by French revolutionaries to overthrow the established order on this side of the English Channel.50 The period after Napoleon’s defeat at Waterloo witnessed renewed political radicalism in the form of organized protests against political corruption and landowners, courtiers and placemen. Reforms of Parliament and the franchise were also sought. Taxation, the reformers argued, had been used to oppress the poor and to wage an unnecessary war. The radicals met with a repressive response from Lord Liverpool’s administration. In 1817 habeas corpus was suspended in the aftermath of the Spa Fields meetings at which radicals such as Henry ‘Orator’ Hunt addressed the crowds.51 Tumultuous scenes were later witnessed at St Peter’s Fields, Manchester in August 1819 when the local yeomanry charged through a crowd with their sabres swinging and cut a path through to the speakers’ platform in order to arrest Hunt and others. Eleven members of the crowd were killed and some 400 persons injured in what subsequently became known as the ‘Peterloo Massacre’. By December 1819, the ‘Six Acts’ were on the statute book. These (mainly consolidating) measures variously banned military drilling,52 gave magistrates powers to search property and persons for arms,53 confirmed the earlier ban on meetings of 50 persons,54 raised taxes on radicals

49

36 Geo. III, c. 8. This was substantially re-enacted by an Act of the same title in 1817. In fact in the case of the Nore uprising, it was the withholding of pay and poor conditions on ship that prompted the mutiny. The 12 members of the Communist Party of Great Britain convicted in 1925 of seditious libel were at the same trial also convicted upon charges of conspiring to incite persons to commit breaches of the extant 1797 Act. 51 The Habeas Corpus Suspension Act 1817. (57 Geo.III, c. 3) Habeas corpus had been previously suspended during the 1790’s in response to events in France. 52 An Act to prevent the training of persons to the use of arms, and to the practice of military evolutions and exercise. (60 Geo. III, c. 1). 53 An Act to authorize Justices of the Peace, in certain disturbed Counties, to seize and detain arms collected or kept for purposes dangerous to the public peace. (60 Geo. III, c. 2) 54 An Act for more effectually preventing Seditious Meetings and Assemblies. (60 Geo. III, c. 6) 50

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journals55 and sped up trials for blasphemous and seditious libel,56 increasing at the same time penalties upon conviction.57 As for the common law, public records detail how those directing the prosecutions of radical speakers such as ‘Orator’ Hunt in the aftermath of the disturbances at Peterloo in 1819 moved away from reliance upon seditious libel charges, preferring instead to indict upon the basis of unlawful assembly.58 As speakers came to be more knowledgeable about the perimeters of seditious libel, care was taken that speeches did not exceed what was lawful.59 At the same time, magistrates were clearly made very anxious by the large gatherings that assembled to hear such speakers. Where a speaker’s words did not in themselves give grounds for a seditious libel prosecution the offence of, unlawful assembly offered a device to check persons such as Hunt by focusing instead upon apprehended fear of public disorder that might ensue from the assembly.60 This charge was later employed with some success against Chartists in the late 1830s and 1840s.61 Today, it is inconceivable that a modern liberal democratic state would revert to reliance upon broadly-defined, sedition laws designed to shore up the authority of the government.62 The question that is now posed is whether current controls on political expression restrict dissenting speech excessively, effectively preventing those who would criticize government from communicating their views to others. Public order statutes (including incitement to racial and religious hatred laws) and, more controversially, extensions of terrorism laws of indirect encouragement to commit acts of violence for political ends constitute the most obvious legal means 55

An Act to subject certain publications to the duties of stamps upon newspapers, and to make other regulations for restraining the abuses arising from the publication of blasphemous and seditious libels. (60 Geo. III, c. 9). 56 An Act to prevent delay in the Administration of Justice in cases of Misdemeanour. (60 Geo. III, c. 4). 57 An Act for the more effectual prevention and punishment of Blasphemous and Seditious Libels. (60 Geo. III, c. 8). 58 PRO TS 25.,12, cited by Lobban (1990) 10 OJLS 307, 334. See also DGT Williams, ‘Freedom of Assembly and Freedom of Speech: Changes and Reform in England’ (1975) 1 UNSW Law Journal 97; L Donohue, ‘Terrrorist Speech and the Future of Free Expression’ (2005) 27 Cardozo L Rev 233 at 254–260. for discussion of the historical use of the unlawful assembly charge to constrain speakers in England and Northern Ireland. 59 Critical importance attached in seditious libel prosecutions to the actual words used by the speaker. This required sufficient and reliable evidence of what was said at the meeting, hence the practice of sending informers to infiltrate the meetings. In the absence of clear evidence, the Home Office was typically more cautious about endorsing local prosecutions. M Lobban, ibid at 333–4. Prosecutions of the printed word for seditious libel also continued at this time, see EP Thompson, The Making of the English Working Class (1991, Penguin, Harmondsworth) at 768. 60 R v Hunt (1820) 1 St Tr NS 171; Redford v Birley (1822) St Tr NS 1071. 61 R v O’Connor (1843) 4 St Tr NS 935; R v Vincent (1839) 9 C & P 91 and generally, J Savile, The British State and the Chartist Movement (1987, CUP, Cambridge). 62 Most commentators agree that these offences have no contemporary role, see thus L Lustgarten & I Leigh, In From the Cold – National Security and Parliamentary Democracy (1994, Clarendon Press, Oxford) at pp. 216–220.

4.3 Models of Regulating Subversive Speech

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of penalizing extreme speech forms. Specifically, the new offence of indirect encouragement of terrorism is problematic both in terms of general principle and Article 10 (and therefore Human Rights Act) compliance for reasons that will be developed below. In some respects, the new offence of indirect encouragement will be seen to be a more draconian infringement on freedom of political expression than seditious libel as understood at the time of Aldred and Burns.

4.3

Models of Regulating Subversive Speech

As is widely known, a measure of constitutional protection for freedom of expression now exists under the Human Rights Act whereby UK courts must take account of Strasbourg jurisprudence when construing domestic laws. It is important to consider how this protection might play out in the context of the newly created offences of indirect encouragement of terrorism and dissemination of the same, enquiring in particular how the domestic courts and the European Court of Human Rights in Strasbourg might approach the issue of ss. 1 & 2, TA 2006 compatibility with Article 10.63 Before examining the new offence of indirect encouragement in more detail, it may be helpful to set out a typology of possible regulatory responses to subversive advocacy. The aim here is to identify and comment upon some of the competing theoretical constructs that might underpin a range of regulatory stances on this matter.

4.3.1

Subversive Advocacy Entirely Beyond Ambit of Constitutional Protection

Speech that undermines or tends or seeks to undermine the existing order might conceivably fall beyond the perimeters of protection because it falls into one of three categories. For the sake of convenience, these are labelled below as (a) speech as urging the commission of a specific crime or, speech which whilst not urging the commission of a crime, becomes inextricably linked to subsequent criminal actions committed by one or more of the audience; (b) offensive speech; and (c) speech as articulating anti-democratic norms. It is of course entirely possible that a specific 63

Recall also the ancillary offences of possession set out previously in ss. 57 & 58, TA 2000. These provisions penalize respectively (i) the possession of articles 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’ and (ii) the collecting/making a record of, or possessing information of a kind likely to be useful to a person committing or preparing an act of terrorism. The outcomes of ss. 57/58 prosecutions as well as the Article 10 issues raised by these provisions have been considered in Chap. 3 of this book.

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example of subversive advocacy could be treated as falling within across two or more categories. (a) Speech as urging the commission of a specific crime or, speech which is inextricably linked to subsequent criminal actions committed by the audience In this category, one important variable might be the imminence of the harms caused by the speech. Expression could be deemed unprotected where, to adopt Emerson’s formulation, it is ‘so close, direct, effective, and instantaneous in its impact that it is part of the action.’64 This is intended, I think, to capture the essence of the scenario outlined by Mill in On Liberty in which a speaker tells an angry and excited mob that has gathered outside a corn dealer’s house that corn dealers are starving the poor or that property is theft. The communication here amounts to a positive instigation to do a ‘mischievous act’, albeit one that is never directly articulated. This is an example of encouragement that is quite general (that is it is not advocating the commission of a specific crime) that could pose an immediate risk of harm to persons and property. A contrasting hypothetical would exist where there is an urging to commit a specific crime, e.g. where the speaker tells the audience to ‘Kill the Bill’ but the nearest police officer was some considerable distance away. In this second scenario, the urging to commit a specific crime is present, but the quality of imminence is absent and it is more doubtful whether the speech will contribute to a crime being committed in the near future. The direct incitement to murder (and apparent lack of ideological content) in the second example may suffice to prevent the expression being given constitutional protection but much would depend in each case upon context, including how the audiences understood the remarks. If laws of incitement typically work to criminalize each of these kinds of expressive activity without requiring either the subsequent commission of an actual crime, or the mere causing of a danger of any subsequent crime,65 there might be a concern, especially in relation to Mill’s corn dealer example where no specific crime is encouraged, that there is simply too great a restraint placed on the advocacy of ideas. That is to say, the less directly inciteful the expression is, the greater the likelihood that what is being expressed is actually a political idea. In the ‘Kill the Bill’ example, the instinctive response is to treat this speech as straightforwardly criminal, however, there is a danger that any ‘political dissent’ element of the expression may be overlooked especially where there is no real prospect of the speech being acted upon in the near future. Context become critical and the same words spoken by (i) an anarchist and (ii) a bank robber might require to be treated differently. The other permutations thrown up by this scheme would be where (i) speaker urges a specific crime and it is reasonably likely that his words will contribute to an imminent breach of the law (strongest argument for removing constitutional protection from speech) and (ii) where the generalized words do not urge a

64

T Emerson, The System of Freedom of Expression (1970, Random House, New York) at p. 404. R v Higgins (1801) 2 East 5.

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particular crime and it is not suggested that there is any consequent danger of a risk to life, property or public order (weakest argument for removing speech from constitutional protection). (b) Offensiveness to majoritarian values In cases falling short of inciting criminal activity, democracies could simply refuse to confer any protection on speech that offended the moral values of the majority. This would capture a wide range of non-conformist opinion (including subversive speech) and remove the need to show any link whatsoever between the expression and a tendency to, or actual, harmful consequences. Speech that ‘affronts’ others would be sufficient to trigger liability. This could include the mere advocacy of sharia law in UK or, somewhat more disturbingly, a video that celebrates the killing of British troops.66 The use of ‘offensiveness’ to determine the boundaries between accepted and unacceptable expression is, as many before have pointed out, highly problematic.67 It works to cut off the possibility of a challenge to prevailing orthodoxies. Debates about a range of issues – political, ethical, cultural – become cleansed and stultified to the point where contributions may only be heard if they do not upset the feelings of others. (c) Speech articulating anti-democratic norms – Article 17 ECHR and ‘militant democracy’ On one view, speech that advocates the forceful overthrow of the government and democracy by a non-democratic alternative is simply not entitled to constitutional protection. In the US, this position was developed by Carl Auerbach who argued that the First Amendment could not be invoked by those arguing for the replacement of democracy by totalitarian systems of government.68 Written in the era of an expanding Soviet empire, Auerbach argued that Congress ought not to be constrained by First Amendment considerations when suppressing the political activities of the US Communist Party and others who, if they were ever to occupy public office, would substantially abridge freedom of speech and other key liberal rights and freedoms.69

66

I will return to this example when discussing ‘indirect’ encouragement in s. 1 TA 2006. See for example C Sunstein, Democracy and the Problem of Free Speech (1993, The Free Press, New York). 68 ‘The Communist Control Act of 1954: A Proposed Legal-Political Theory of Free Speech’ (1956) 23 Uni Chic L Rev 173. 69 Auerbach draws on Mill’s argument in On Liberty against enforcing an agreement under which one party agrees to sell himself into slavery. Mill’s position is that a person’s liberty does not extend to entering an agreement whereby all future use of the freedom is given up. In Mill’s words ‘It is not freedom to be allowed to alienate his freedom.’ JS Mill, On Liberty (1974, Penguin, Harmondsworth) at p. 173 and cited by Auerbach to argue that by limiting the freedom of totalitarian speakers, liberal democracies are acting to maintain the conditions by which individual freedom is maintained, see Auerbach at 188 ibid. 67

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Of course, the idea that the US Government might limit speech solely on account of the speaker’s views cannot be reconciled with the First Amendment’s commitment to viewpoint neutrality.70 This constitutional bar on regulation by reference to viewpoint remains operative even where it is feared that the speaker’s opinions will find favour with a majority of the audience and risk threatening the very foundations of liberal state including core, democratic values such as freedom of speech. Conversely, under the European Convention on Human Rights, the prohibition in Article 17 on the invocation of Convention rights ‘to engage in any activity aimed at the destruction of (other Convention) rights and freedoms’ would seem to rule out claims by extremist political dissidents that national restrictions violate their Article 10 freedoms. Whilst an important question about the margin of appreciation enjoyed by domestic authorities under this provision of the Convention would have to be resolved, it is known that Article 17 permits the introduction of holocaust denial laws.71 As such, it reflects a substantive conception of democracy72 in which the state is empowered to protect itself from those who seek its destruction.73 That is to say (somewhat paradoxically for a system that is committed to the values of tolerance and individual freedom), the state is entitled to react intolerantly towards those who do not subscribe to these values and other, core precepts (via a range of measures including proscription of political associations) in order to protect the basis of the democratic state. Accordingly, speech and other forms of conduct that reject liberal democratic values may be suppressed consistently with Article 17.74 The withdrawal of political rights from those that would use democratic processes to undermine and replace democracy is a central tactic of militant democracies. Significantly, Article 17 does not demand that the national authorities show that the anti-democratic expression constitutes a real threat to the fabric of the polity and as such appears to allow pre-emptive strikes against the opponents of democracy.

70

See for example Texas v Johnson 491 US 397 (1989) and the remarks of Brennan J ‘If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.’ at 414. 71 Lehideux & Isorni v France (1998) VII Reports of Judgments and Decisions 2864, 2884, Marais v France (1996) App No. 31159/96. See also Norwood v United Kingdom (2004) decision of 16 November. 72 See however Sadurski who rejects the label ‘substantive’ to describe democratic regimes that restrict the political rights of anti-democrats. He points out that more liberal regimes which tolerate the activities of anti-democrats to a greater degree also have a ‘substantive’ conception of democracy, see his Introduction in (ed. W Sadurski) Political Rights under Stress in 21st Century Europe (2006, OUP, Oxford) at p. 10. 73 G H Fox & G Nolte, ‘Intolerant Democracies’ (1995) 36 Harvard Intl L J 1; I Cram, ‘Constitutional responses to extremist political associations: ETA, Batasuna and democratic norms’ (2008) 28 LS 68. 74 See in this context the Criminal Justice and Immigration Act 2008, s. 74 & Sch 16 inserting new offence of inciting hatred against persons on grounds of sexual orientation into Part 3A of the Public Order Act 1986. For a critical discussion of European hate speech controls in general, see E Heinze, ‘Viewpoint absolutism and hate speech’ (2006) 69 MLR 543.


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The origins of the phrase ‘militant democracy’ were discussed previously in Chap. 1. Writing two articles in 1937 that were critical of the Weimar Republic’s failure to contain Nazism, Karl Lowenstein famously advocated legislative measures aimed at curtailing anti-democratic forces even ‘at the risk and cost of violating fundamental principles.’75 Loewenstein did however admit that constraining freedom of speech and the press presented the ‘thorniest problem’ for democratic states. In his view, revolutionaries and subversives had become adept at presenting their ideas as lawful criticism of political institutions. Yet what he identified as an overly ‘legalistic concept of freedom of public opinion’ had allowed democracies to turn fascist.76 More recently, Rosenfeld has argued that militant democracy arguments for curtailing expression that advocates anti-democratic ideals become more compelling when the polity faces an obvious and tangible threat to its unity.77 Had the Weimar Republic been less tolerant of fascism, the Nazis may not have come to power using democratic means. Of course, aside from shoring up threatened polities, a democratic polity’s intolerance of the intolerant may be used to advance other important constitutional norms. The German Constitutional Court’s suppression of pro-Nazi expression in the post Second World War period could be argued to have bolstered the dignity of the surviving Jewish population.

4.3.2

Ad Hoc Balancing Between Harm/Benefits of Expression

This particularistic approach asks the courts to carefully weigh the likely harms caused by the advocacy against the benefits that are likely to flow from not restricting the advocacy.78 Where an initial assessment of the ‘proper’ balance has been made by the legislature in the form of an open-ended legislative standard (such as the proscription of expression that is ‘contrary to the public interest’), a prior issue would arise regarding the level of scrutiny that the courts should apply to the statutory determination for the purposes of a s. 4(2) declaration of incompatibility action. Assuming the standard was HRA-compatible, it would then fall to the courts to articulate factors considered relevant to a determination of the legislative standard and then ascribe an appropriate weighting to each. As a concept, ‘balancing’ is attractive because it appeals to the eminently sensible idea that complex questions require nuanced answers. If all relevant factors are considered, (irrelevant 75

‘Militant Democracy and Fundamental Rights’ (1937) 31 American Political Science Review 17 and reproduced in A Sajo (ed.) Militant Democracy (2004, Eleven International Publishing, Netherlands). The quote is taken from the edited collection at p. 245. 76 Sajo (ed.) ibid at pp. 257–258. 77 M Rosenfeld, ‘A Pluralist Theory of Political Rights in Times of Stress’ in (ed. W Sadurski) Political Rights under Stress in 21stCentury Europe (2006, OUP, Oxford) at pp. 45–49. 78 In the US, this approach is considered exemplified by Frankfurter J in cases such as Dennis v US 341 US 494 (1951).

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factors having been screened out) and then each given its appropriate weighting, this detailed case by case approach appears to have a lot to commend itself. In reality however, ad hoc balancing is rarely free from significant difficulties. Sunstein for example has noted how harm-benefit analyses pose ‘extremely high risks’ to freedom of expression.79 Judges, he contends, come under pressures of the moment to characterize certain harms as serious whilst assessments of the benefits of expression may be tainted by prejudice and myopia. In the context of emergencies, specific pressures to curtail unpopular, subversive speech could prove hard to resist. Juries too, if they reflect mainstream opinion, might be unlikely to hold out for a broadly construed right to engage in political dissent in these circumstances. Moreover, in the context of claims about the requirements of national security, there might be an added concern that ‘balancing’ would entail judicial deference to executive assessments of the harms caused by expression. Finally, whatever balance was struck in previous cases, the highly case-specific nature of the exercise yields little, if any, precedent guidance, to the other speakers minded in the future to express political dissent in forceful terms.

4.3.3

Presumptive Unconstitutionality of Restraints upon Freedom of Expression

Undoubtedly offering the greatest degree of protection for subversive advocacy amongst the models considered above, the presumptive unconstitutionality model is the most suspicious of state attempts to restrict expression for contents and viewpoint reasons and emphasizes instead the individual and collective benefits of allowing a broad degree of political dissent to systems of informed self-government. This model starts with the presumption that restrictions targeting expression by reference to the speaker’s viewpoint are invalid and requires the state to meet an onerous set of criteria if this presumptive invalidity is to be rebutted. A good example of a robust level of protection is found in the US Supreme Court ruling of Brandenburg v Ohio.80 A state law that punished persons who ‘advocate or teach the duty, necessity or propriety (of violence) as a means of accomplishing political or industrial reform’ violated the guarantees of free speech and a free press in the US Constitution. These guarantees did not permit the state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.81

79

C Sunstein, The Problem of Free Speech (1993, Free Press, New York) at p. 150. 395 US 444 (1969). 81 Ibid. at 447. 80


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Brandenburg can be viewed as the Warren Court’s attempt to allow subversive speakers some considerable latitude under the ‘clear and present danger’ standard handed down from cases such as Whitney v California.82 Advocacy remains constitutionally protected unless it satisfies a two limb test of (i) being intended to incite or produce immediate breaches of the law and (ii) is likely to have that effect. The requirement of ‘immediacy’ features in both the mens rea and actus reus elements of Brandenburg and its potency was subsequently revealed in Hess v Indiana where, during an anti-Vietnam war demonstration at Indiana University, a crowd of between 100–150. protestors had gathered on a road, blocking the passage of vehicles. After some of demonstrators moved onto the pavement in response to a direction from the sheriff, Hess was heard to say ‘We’ll take the fucking street later.’ He was arrested and convicted on a disorderly conduct charge. The conviction was reversed by a 6–3 majority in the Supreme Court. Even if the least favourable view was taken of the defendant’s words, they ‘amounted to nothing more than advocacy of illegal action at some indefinite future time.’83 No evidence had been brought to show that the words of Hess were either intended to produce, or were likely to produce, imminent disorder. The mere fact that they might have had a tendency to lead to violence could not sustain an interference with the speaker’s First Amendment freedoms.84 Notwithstanding these highly protective features of the ‘clear and present danger’ standard under Brandenburg, it is important to note that the decision does not rule out the possibility that an ‘indirect’ form of advocacy might be lawfully regulated. Thus, in those instances where a speaker uses words that fall short of urging the commission of a specific crime, it is not entirely implausible to claim that there may be circumstances (as in Mill’s anti-corn dealer speaker example) in which it is intended to stir the crowd to immediate acts of violence against the corn dealer and that such immediate violence is the likely consequence of the speaker’s rhetoric.85 Clearly not all versions of the ‘presumptive unconstitutionality’ model will insist upon the demanding set of derogating conditions found in Brandenburg. It is possible to conceive of weaker presumptions in favour of expression in which 82

274 US 357 (1927). See however the absolutist approach of Black and Douglas JJ both of whom considered that ‘clear and present danger ‘should have no place in the interpretation of the First Amendment’ since, according to Douglas, it allowed judges ‘so wedded to the status quo’ to suppress ‘puny’ threats to the state, 395 US 444, 450–455. 83 414 US 105, 108 (1973). 84 See also Watts v US 394 US 705 (1969) where the defendant stated at a small gathering that if he was forced to join the army and carry a rifle, ‘the first man I want to get in my sights is LBJ’. The lack of imminent threat to order or, more precisely, the life of President Lyndon B Johnson meant that his remark fell within the protective reach of the First Amendment as ‘political hyperbole’. See also S Leader, ‘Free Speech and the Advocacy of Illegal Action in Law and Political Theory’ (182) 82 Col L Rev 412 and T Allan, Constitutional Justice – A Liberal Theory of the Rule of Law (2003, OUp, Oxford) at pp,106–110. 85 See further D Barnum, ‘Indirect incitement and freedom of speech in Anglo-American law’ [2006] EHRLR 258, 275–277.

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claims to the freedom are more easily rebutted via a less onerous set of permissible restrictions. Examples would include where the state need not show an intention to cause immediate violence/disorder and/or where immediate violence/disorder need not be shown to be the likely result of the expression. As the decision of the European Commission on Human Rights in Arrowsmith v UK illustrates, domestic sedition laws probably do not on their face violate Article 10 of the European Convention, being necessary in the interests of national security and the prevention of disorder.86 Critically, the Commission’s refusal to impose on the UK an obligation to show that Ms Arrowsmith’s leaflets (which advocated that soldiers should leave the military or refuse to serve if posted to Northern Ireland) posed a substantial risk national security and order would be jeopardized marks out the weakness of the constitutional presumption.87 In the sections of materials which follow below, I aim to show first why the Council of Europe’s Convention on the Prevention of Terrorism belongs in the category of weaker presumptive protection and, secondly, why the domestic version of the Convention’s preferred offence of public provocation to commit terrorist offences’ accords in some respects even less protection to speakers.

4.4

The Council of Europe Convention on the Prevention of Terrorism CETS No. 196

A survey of national laws by CODEXTER – Apologie du Terrorisme, – a working group of the Council of Europe’s Committee of Experts on Terrorism – concluded in 2004 that a gap existed in many legal systems in Europe in which public statements of praise, support or justification of terrorists and terrorist acts were not of themselves criminal offences.88 After inputs from the Parliamentary Assembly89 and the Commissioner for Human Rights of the Council of Europe,90 the Council of 86

App No. 7050/75, and see critical comment by E Barendt, (1981) 1 OJLS 279. The Commission focused instead upon the possible effects of the advocacy. 88 CODEXTER ‘‘‘Apologie du terrorisme’’ and ‘‘incitement to terrorism’’’ (2004, Strasbourg, Council of Europe prepared by Dr O. Ribbelink) The legal systems of Denmark, France and Spain proved to be the exceptions in having previously criminalized ‘apologie du terrorisme’. The report assumes that public praise, support or justification is co-terminous with the idea of’ ‘indirect incitement/provocation’ to terrorism. 89 See further C Tomuschat, ‘Further steps of the Council of Europe with a view to combating terrorism’ (2006) 25 HRLJ 157; A Hunt, ‘The Council of Europe Convention on the Prevention of Terrorism ‘(2006) 4 EPL 603. For discussion of equivalent developments at the UN Security Council at much the same time, see the discussion on Resolution 1624 in Chap. 2 of this book. 90 ‘Opinion of the Commissioner for Human Rights Alvaro Gil-Robles on the draft Convention on the Prevention of Terrorism’ CommDH (2005) 1. The Commissioner was critical of the vagueness and uncertainty surrounding the idea of ‘indirect incitement’ as set out by CODEXTER and feared it could lead to State Parties taking different measures to each other thereby undermining the draft convention’s objective of harmonizing laws, at paras. 24–30. 87

4.4 The Council of Europe Convention on the Prevention of Terrorism CETS No. 196

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Europe Convention on the Prevention of Terrorism (hereafter CETS No. 196) was adopted by the Committee of Minister and opened for member states’ signatures in May 2005.91 The relevant section of the Convention is Article 5 ‘Public provocation to commit a terrorist offence’. This provides: 1. For the purpose of this Convention ‘public provocation to commit a terrorist offence means the distribution, or otherwise making available, of a message to the public, with intent to incite the commission of a terrorist offence, where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed. 2. Each Party shall adopt such measures as may be necessary to establish public provocation to commit a terrorist offence, as defined in para. 1, when committed unlawfully and intentionally, as a criminal offence under its domestic law.

In the accompanying Explanatory Report, it is explained that Article 5 resulted from a concern about a causal link between the public expression of support for terrorist offences or terrorist groups and the commission of terrorist offences.92 The Convention framers plainly intended to strike at the ability of terrorist recruiters to gain new and active supporters through the dissemination of materials that could be seen as indirectly inciting the commission of terrorist offences. Although state parties would enjoy a measure of discretion as to the definition of the new offence, the authors of the Explanatory Report were conscious of the risk of a proportionality-type challenge to any new national laws and so set out two conditions that national laws would have to meet. First, any new offence would have to require a specific intention to incite another to commit a terrorist offence. Second, any such incitement would have to cause a danger that a terrorist offence may be committed.93 The latter requirement would be assessed by reference to ‘the nature of the author and of the addressee, as well as the context in which the offence is committed. . .’94 CODEXTER correctly identified the critical issue raised by Article 5 to be whether the provision managed to set out a clear boundary between the indirect incitement to commit acts of terrorism on the one hand whilst safeguarding the ‘legitimate voicing of criticism’ on the other.95 This nod towards the importance of dissent had been present in the Convention itself. Article 12 of CETS No. 196 (Conditions and Safeguards) reminds States in their respective framings of national laws to respect the right to freedom of expression and to ensure that limits on the freedom are proportionate. Despite Article 12, the looseness of the wording in Article 5 makes it difficult to reconcile the latter with a serious commitment to robust anti-government or anti-western expression. In general, what is revealed is a weak presumption in

91

CETS No. 196. CETS No. 196 Explanatory Report at para. 87–88. available electronically at http://conventions. coe.int/Treaty/EN/Reports/Html/196.htm. 93 Paras. 99–100. 94 Para. 100. 95 Para. 92. 92

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favour of freedom of expression – a fact attributable at one level to the low threshold requirements of the actus reus element of the offence that defines the ‘effects’ of the communication. First, it appears that a remote, unsubstantial or small danger that (something which is deemed to be) an indirect incitement could result in a terrorist act would be sufficient. This interpretation follows from the absence of a qualifying adjective in front of ‘danger’ in Article 5. Second, neither is there any requirement that the indirect incitement create an imminent or even foreseeable danger that a terrorist act may be committed. There is no temporal limit or time frame within which the danger caused by the indirect incitement must arise. If this view is correct, prosecutors may bide their time until an alleged indirect incitement published some while ago can be subsequently linked to a more recent atrocity. Of course, no terrorist act need ever actually occur. It suffices that a slight and unforeseeable danger of a possible terrorist act was created. The Explanatory Report does try to counteract the textual weakness in Article 5 by directing national authorities to consider in context the ‘significance and credibility’ of the danger caused by the communication.96 As such, this can be read as an attempt to observe the need for proportionate restrictions on expression.97 Unfortunately, the Explanatory Report lacks a formal or authoritative status in interpreting CETS No. 196, and, as experience in the UK has subsequently confirmed, it is more likely that national authorities will ignore this aspect of the Explanatory Report, focusing instead upon state-friendly judgment of the European Court of Human Rights in Hogefeld, aspects of which are dealt with in more detail below. Aside from its textual shortcomings, there is a more fundamental problem with Article 5. I argued earlier that in cases where no specific crime was incited, the advocacy was likely to contain an ideological component that was more prominent than in equivalent instances of direct advocacy. In conceding new limits upon expressive freedom, Article 5 neglects the ideological element in particular forms of ‘indirect incitement.’ In revealing itself unwilling to tolerate expressions of support/praise/justification for a list of terrorist offences, Article 5 might be thought to have provided terrorist groups with a powerful propaganda tool. Fundamentalist Muslim groups for example can argue with some force that the much vaunted freedom of expression in European liberal democracy does not exist for those who want to speak about injustices committed against Muslims. The resultant alienation of sections of the population produced by the criminalization of expression is a theme that has already been touched upon in this monograph. A cynic might maintain however that the European Court of Human Rights Article 10 jurisprudence had already lessened the hurdles in the way of states wishing to limit subversive advocacy, thereby removing any real pressure on CODEXTER to produce a more tightly defined set of controls on subversive advocacy. Four years previously, the Court’s ruling in Hogefeld v Germany indicated that member states enjoyed a wide discretion to place constraints upon forms

96

Para. 100. A Hunt, ‘Criminal prohibitions on direct and indirect encouragement of terrorism’ [2007] Crim L Rev 441, 456.

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4.4 The Council of Europe Convention on the Prevention of Terrorism CETS No. 196

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of indirect incitement.98 Hogefeld wished to contest the refusal of the German courts to accede to the separate requests from radio journalists and a filmmaker to conduct interviews with her. The refusal was based upon a fear that the applicant would explain and advocate the ideological positions of her grouping – the Red Army Faction (hereafter RAF) and that this might strengthen support for RAF. Promotion of the latter’s ideology was an offence under German criminal law.99 By the time her case came before the European Court of Human Rights, Hogefeld had been tried and convicted of several extremely serious offences including murder, robbery and causing explosions. During her trial, she had made a number of statements which formed the basis of the German authorities’ refusal to allow media access. Before the Strasbourg Court, the applicant argued that she had been critical of RAF strategy in the 1980s and had moreover described the shooting of a US soldier as ‘one of the worst mistakes of RAF.’ More problematically however, she also declared that our beginnings and our fight for a different world were at any time well-founded and justified, and that fight has to be conducted as a confrontation

adding that, the reversal of the social developments is still a matter for which one must fight.

The Court took the view that lawfulness of any prior restraint would have to be judged by reference to these previous public statements. Given the context of Hogefeld’s personal involvement in previous terrorist incidents, the Strasbourg Court considered that her published words could be construed as an appeal to others to continue those activities. In these circumstances, the restriction upon her Article 10 ECHR freedoms corresponded to a pressing social need. The reasons for refusing the interviews were deemed ‘relevant and sufficient’ and Germany had not exceeded the margin of appreciation enjoyed by national authorities in such matters. If it is accepted for the sake of argument that there was evidence to suppose that Hogefeld did intend to incite RAF supporters to commit a terrorist offence, or at the very least was reckless as to whether supporters were so incited, it is remarkable that the Strasbourg Court’s assessment of the compatibility of national law with Article 10 of ECHR fails in its entirety to address the ‘effects’ issue arising from the predicted contents of a future interview. Thus, the Court could have inquired into the whether the remarks were likely to create a danger that a terrorist offence would be committed. If so, the Court could then have proceeded to ascertain whether the danger so created was significant or insignificant, pausing to ask whether the threat of danger was credible or not. At a less strict level of supra-national scrutiny, the Strasbourg Court could have simply inquired whether the German courts had satisfied themselves as to the likely effect of any interview. In the context of the

98

Application No. 35402/97 (decision of 20/01/2000). Code of Criminal Procedure s. 129a.

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applicant’s ambiguous words, the relaxed standard of review of national restrictions is perplexing, all the more so on account of the fact that the European Court was confronted with a prior restraint upon the exercise of political expression. Hogefeld stands squarely within the broader pattern of weak protection for dissident expression that is exemplified by the Turkish cases concerning inter alia Kurdish separatism in the last decade. Whilst emphasising the importance of anchoring any analysis in the context within which the relevant words were published, the Strasbourg Court has regularly stated that national authorities can invoke criminal sanctions against ‘virulent’ and ‘acerbic’ criticisms directed at the state consistently with Article 10(2) where those statements can be treated as inciting to violence.100 Statements that glorify violence or incite hatred of others can equally be punished regulated under Article 10(2).101 In such circumstances, the state here enjoys a wider than usual margin of appreciation to limit political expression.102 The Turkish authorities have not been placed under any requirement to show that a violent reaction to the ‘incitement’ was likely or immediate or even substantial.103 Where the expression has fallen short of inciting violence or hatred and is deemed merely offensive and/or colourful then domestic interference with political expression has tended to come under closer scrutiny from the European Court.104 At a more profound level, the weaknesses in European Convention protection for dissident advocacy may be traced to subordination of individual rights to community interests and where ‘reasonable restraints’ upon the exercise of individual freedom are upheld, especially where the freedom is linked (however remotely) to the undermining of public safety and other community values. As was noted in Chap. 1, the post 11 September 2001 world in which the July 2005 London bombings came to constitute a prominent and home-grown landmark, prompted a number of voices to call for a ‘re-balancing’ of individual liberty and public safety/national security by curtailing aspects of the former.105 Domestically, the principal assault upon expressive freedom is found in the newly created offence of indirect encouragement of terrorism. This particular ‘pathological moment’ is now considered.

100

Ceylan v Turkey (2000) 30 EHRR 73 at para. 33. Sener v Turkey (2003) 37 EHRR 34 at paras. 42–45. Su¨rek v Turkey (No.1) (App. No. 26682/95) judgment of July 8, 1999 at para. 62 and O¨zgu¨r Gu¨ndem v Turkey (2001) 31 EHRR 49. 102 Ceylan v Turkey (2000) 30 EHRR 73 at para. 34. 103 For analysis of the Turkish cases, see H Davis, ‘Lessons from Turkey: Anti-Terrorism Legislation and the Protection of Free Speech’ [2005] EHRLR 75. 104 Gu¨ndu¨z v Turkey (2005) 41 EHRR 5. 105 For a consideration of the arguments and their proponents, see Chap. 1 and the accompanying footnotes. 101

4.5 The Statutory Offences of Indirect Encouragement of Terrorism

4.5

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The Statutory Offences of Indirect Encouragement of Terrorism and Dissemination: Terrorism Act 2006106

Partly in response to the events of July 7 and 21, 2005 and partly by way of implementing CETS No. 196 and UN Security Council Resolution 1624 (of which he was a prime mover), the then Prime Minister Tony Blair indicated his intention to bring forth legislation to criminalize the condoning or glorifying of acts of terrorism.107 He referred in his statement to ‘the sorts of remarks’ that had been made in the immediate aftermath of the London bombings. It is understood that the legislation was aimed at websites of the sort run by Mohammed al-Masari who, in July 2005, was a British-based Saudi dissident. Until late August 2005, his website broadcast footage of the killing of three Black Watch soldiers in Iraq by a suicide bomber as well as containing materials that was supportive of Al-Qaeda and Iraqi insurgents. Masari has spoken in the past of Iraqis’ entitlement to kill coalition soldiers and other westerners. The website was taken down in late August 2005 at much the same time as Masari fled the UK.108 The new offence in section 1 of TA 2006 criminalizes the ‘encouragement of terrorism.’ The new offence is predicated on the view that there are susceptible persons who, upon being told that terrorism is a worthy, celebratory or admirable cause, consequently make the transition from being mere recipients of the message to the perpetrators of future terrorist acts.109 In the words of the Home Secretary, there is a real possibility that that encouragement is certain to have an impact on the minds of some individuals leading them to behave in a certain kind of way.110

Liability occurs under s. 1 TA 2006 where a person publishes a statement knowing, or having reasonable grounds to believe that others are likely to understand it as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism. . .

Expressly (though inelegantly) included in the category of statements that are likely to be understood as indirectly encouraging the commission or preparation of acts of terrorism’ under s. 1(3) TA 2006 is a statement that

106

See further D Barnum, ‘Indirect incitement and freedom of speech in Anglo-American law’ [2006] EHRLR 258; A Hunt, ‘Criminal prohibitions on direct and indirect encouragement of terrorism’ [2007] Crim L Rev 441. 107 The full text of the statement can be read at http://politics.guardian.co.uk/terrorism/story/ 0,15935,1543385,00.html. See further C Walker, ‘The legal definition of ‘‘terrorism’’ in United Kingdom law and beyond’ [2007] PL 331. 108 D Leppard & J Ungoed-Thomas, ‘Masari pulls plug on his hate website’ The Sunday Times (2005) August 28. 109 Rt Hon. Charles Clarke MP, (2005–2006) Select Committee on Home Affairs Committee Minutes of Evidence Oral Questions 11th October 2005, Q.3. 110 Ibid at Q.9.

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4 Incitement and Glorification of Terrorism (a) glorifies the commission or preparation (whether in the past, in the future or generally) of such acts or offences; and (b) is a statement from which those members of the public could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated in existing circumstances

‘Glorify’ itself is defined to include any form of praise or celebration.111 Whether such a statement does meet the statutory criteria is to be determined by having regard both to the contents of the statement as a whole and the circumstances and manner in which it is published.112 Liability will arise notwithstanding the fact that no one was in fact encouraged or induced by the statement to commit a terrorist act.113 No prosecution is to occur however without the consent of the Director of Public Prosecutions.114 In defending the proposal to make glorification an offence, the Government argued that it would constitute a proportionate and Human Rights Act-compliant response to dangers that religious leaders might persuade young, radically-inclined persons towards acts of terrorism by their interpretation of ‘apparently authoritative tracts wrapped in a religious or quasi-religious context.’115 Section 2 of TA 2006 creates the offences in respect of terrorist publications of distributing, circulating, giving, selling, lending, transmitting electronically, providing a service that enables others to obtain, read, listen or look at such a publication or to acquire it by means of a gift, sale or loan. Persons providing electronic services (such as ISPs) will be deemed to have endorsed a statement covered by sections 1 & 2 of the Act if, having received a notice from a police constable requiring the material either to be taken down or modified so that it no longer relates to terrorism, the notice is not complied with within 48 h.116

111

S. 20(2)TA 2006. S. 1(4), TA 2006. 113 S.1(5) TA 2006. The reassurance offered by this provision must be tempered by the realisation that the DPP is not immune from political pressures in the exercise of prosecutorial discretion. A relevant cautionary note is to be found in the DPP’s decision to prosecute Pat Arrowsmith for sedition under The Incitement to Disaffection Act 1934 after she distributed leaflets at an army base urging soldiers to leave the army or refuse to serve in Northern Ireland. Her conviction in the domestic courts was upheld somewhat unsatisfactorily by the European Commission on Human Rights, see App No. 7050/75 and the discussion in the main text above. 114 S. 19, TA 2006. The reassurance offered by this provision must be tempered by the realisation that the DPP is not immune from political pressures in the exercise of prosecutorial discretion. A relevant cautionary note is to be found in the DPP’s decision to prosecute Pat Arrowsmith for sedition under The Incitement to Disaffection Act 1934 after she distributed leaflets at an army base urging soldiers to leave the army or refuse to serve in Northern Ireland. Her conviction in the domestic courts was upheld somewhat unsatisfactorily by the European Commission on Human Rights, see App No. 7050/75 and the discussion in the main text above. 115 Lord Carlile, the independent reviewer of terrorism legislation whose words were cited by the Home Office Minister Hazel Blears MP at HC Debs. (2005–2006) Vol. 439, col. 428. 116 Ibid. s. 3. A defence of reasonable excuse for failing to comply with the notice exists under s. 3(2)(c). On the giving of notices, see s. 4. 112


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To begin with, it should be noted that a parliamentary consensus does exist around the idea that the discouragement of persons from engaging in acts of terrorism is a legitimate objective of legislation.117 However, during the detailed examination of the Act’s provisions at Committee stage, critics expressed their concern at the width of the new provisions, focusing upon the mental element of the proposed criminal offences of indirect incitement and glorification as well as their geographical and temporal reach. The possibility that the new offences might catch expression that negligently (as opposed to intentionally or recklessly) encouraged others to engage in acts of terrorism was criticised by speakers on all sides of the House.118 One MP argued that, as then drafted, the clause would catch participants in a University debating society who proposed a motion ‘This House would become a suicide bomber’ if they ought reasonably to have known that a member of the audience would be encouraged so to act, even though the proposer did not intend his/her speech to have that effect. The same provision would also catch a Middle East studies tutor who distributed teaching materials that contained propaganda from Hamas or another terrorist organisation.119 The Government’s response to these criticisms was to introduce, and secure approval for, an amendment to the offence of indirect incitement by requiring the prosecution to show an intention to incite acts of terrorism or, at the least, recklessness as to whether acts of terrorism were encouraged or not.120 The objective form of recklessness that was initially preferred in this amendment was subsequently replaced by a subjective recklessness test. This means that the mental element of the offence is established where a speaker knows, or is aware but indifferent to the likelihood, that his/her statement would be understood by others to be an encouragement to terrorism.121 Nonetheless, the application of ‘recklessness’ to the ‘conduct’ element of the offence (the ‘encouraging’) – as opposed to the ‘results’ element (the acts of terrorism) means that a broader range of conduct is caught. Thus it need not be shown that the defendant was reckless as to whether a terrorist act resulted from his speech, only that he/she was reckless as to how others would understand the words.122 Nonetheless, the 117

See thus the remarks of the Shadow Attorney General Dominic Grieve MP at HC Debs. (2005–2006) Vol 438, col. 838. 118 For example, Shadow Attorney General Dominic Grieve MP at HC Debs. (2005–2006) Vol 438, cols. 833–838. Bob Marshall-Andrews MP ibid. at cols. 844–848. Alan Carmichael MP ibid. at cols. 848–851. 119 Bob Marshall-Andrews MP ibid. at col. 846. 120 HC Debs (2005–2006. Vol 439, cols. 387–438. It was also suggested in the Commons’ debate that a reported statement of the wife of the Prime Minister that she could understand how ordinary Palestinians could turn to terrorism might be liable under this test. Ibid. at cols. 398–399. 121 This is the understanding of the Joint Committee on Human Rights whose formulation I have paraphrased here, see The Council of Europe on the Prevention of Terrorism (First Report of Session) (2007) HL Paper 26 HC 247 at para. 34. The previous objective version of recklessness would have meant that the prosecution need only show that the speaker could not reasonably have failed to realise the likely encouraging effects of his remarks. 122 The point is well made by S Bronitt & J Stellios, ‘Sedition, security and human rights: ‘Unbalanced’ law reform in the war on terror’ [2006] Melb. Uni L Rev 29.

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parliamentary Joint Committee on Human Rights expressed the view that this tightening of the mens rea aspect of indirect incitement was sufficient to render s. 1 consistent with Article 5 of CETS No. 196.123 There is however no ‘good faith’ defence to a s. 1 charge. A speaker cannot argue that a genuine attempt was made to show mistakes in government policy or, more specifically that a communication was intended to discuss matters producing ill-will between different groups in society. A number of features of the new offence appear to extend considerably the reach of the criminal law. Take for example the extra territorial definition of ‘terrorism’ set out previously in the TA 2000. The TA 2006 adopts this definition of terrorism. As a result, it is an offence to incite indirectly or glorify acts of violence anywhere in the world, against any government. More fundamentally however, the inability of terrorist legislation to distinguish between less obviously illegitimate forms of resistance to state oppression (acts of minor violence by the ANC and others against white-owned property during the South Africa’s apartheid era) and other terrorist activities would have serious consequences for the scope and evenhandedness of the new measures.124 Thus, in the context of a current conflict involving Muslims, whilst a speaker would remain free to argue that the Russian authorities should murder more Chechen rebels, it would be an offence to give encouragement to Chechen resistance fighters. As Crenlinsten has observed, this discrepancy reflects the fact it is the power holders in any society that are able to label persons/groups as ‘terrorists’ which carries a pejorative meaning of ‘extranormal violence.’125 CETS No. 196 required national authorities to criminalize the encouragement of a list of specific crimes defined in 12 International Counter-Terrorist Conventions. Drawing on the definition of ‘terrorism’ in s. 1 of the TA 2000, the offence of encouraging in domestic counter-terrorism law ranges much more broadly. In addition to the CETS list, s. 1 of TA 2006 captures the encouragement of all forms of serious violence against a person, serious damage to property, endangering another person’s life, creating a risk to the health or safety of the public, seriously interfering with/disrupting an electronic system where the foregoing are done with the motive of influencing the government/international governmental organisation or intimidating the public in order to advance a political/religious or ideological cause. This extended definition led the Joint Committee on Human Rights to conclude that the s. 1 offence carried with it a ‘considerable risk of incompatibility with the right to freedom of expression in Article 10 ECHR.126

123

The Council of Europe on the Prevention of Terrorism (First Report of Session) (2007) HL Paper 26 HC 247 at para. 34. 124 R v F [2007] EWCA Crim 243 – no defence to a count of possession of a document containing information of a kind likely to be useful to a person committing or preparing an act of terrorism (under s. 58, TA 2000) that the target referred to in the document was the tyrant at the head of an undemocratic regime. See further ch. 3. 125 Ronald D Crenlinsten, ‘Power and Meaning: Terrorism as a Struggle over Access to the Communication Structure’ in Paul Wilkinson & Alasdair Stewart (eds) Contemporary Research on Terrorism (Aberdeen: 1987 Aberdeen University Press). 126 The Council of Europe on the Prevention of Terrorism (First Report of Session) (2007) HL Paper 26 HC 247 at para. 29.


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The reach of the incitement/glorification offences is also broadened by the fact that it does not appear limited to current political struggles but may extend back in time to historical conflicts.127 Other criticisms relate to the fact that existing statutory and common law provisions are considered to render the new measures unnecessary.128 Under the extant common law offence of incitement for example, the prosecution need not show that what was said expressly urged the commission of an offence (an implication that the conduct in question should be engaged in is sufficient)129 or that the crime incited was actually committed or even that anyone was incited to commit the crime.130 The prosecution does however need to show that the defendant did seek to persuade or encourage another person to commit a crime. In April 2008, the vigour of the common law was amply demonstrated when the radical Islamic preacher Abu Izzadeen was convicted for inciting others to commit an offence of terrorism abroad. According to the evidence laid before the court by the prosecution, Izzadeen told a gathering outside Regent’s Park Mosque to fight the (unbelievers) with your money. Jihad with money, jihad with money. The Jihad is to give money for weapons, for tanks, for RPGs, for MI6s. The Americans and British only understand one language. It’s the language of blood. Because when they come to Baghdad, they only come with the language of murder and killing Muslims.131

Earlier, it was noted that the Explanatory Report accompanying CETS No. 196 had sought to invest the reference to ‘a danger’ in Article 5 with greater substantive meaning than appears in the text of the Article 5 itself. Importantly, the domestic offence does not require the prosecution to show that the ‘encouragement’ has caused any danger that an act of terrorism may be committed. In failing to impose a requirement on the prosecution as to the effects of the encouragement, the Government has managed to secure the enactment of a provision that mirrors the European Court of Human Rights’ omission in Hogefeld. Finally and arguably most problematically, the long reach of the new encouragement law is further illustrated by the inherent fuzziness of the concept of ‘glorification’. The Joint Committee on Human Rights was concerned by the

127

Thus, one MP suggested that the new offence of glorification would catch works of literature such as George Orwell’s Homage to Catalonia with its praise of the Italian anarchist in the Lenin Barracks in Barcelona, see speech of Alan Simpson MP HC Debs (2005–2006) 2 November at cc. 852–853. 128 Elfin Llwyd MP ibid. at cc. 860–863. Extant offences include s. 4 of the Offences Against the Person Act 1861 and s. 8 of the Accessories and Abettors Act 1861. However, according to Ashworth, the offence of incitement is not often used by prosecutors in England, Principles of Criminal Law (5th edn., OUP, Oxford) at p. 466. As far as Scots law is concerned, the case of Baxter [1998] SLT 414 indicates that the offence is only prosecuted where the incitement has been acted upon and the incited crime committed. 129 Marlow [1997] Crim L R 897. 130 A Hunt, ‘Criminal prohibitions on direct and indirect encouragement of terrorism’ [2007] Crim L Rev 441, 453–455. 131 ‘Muslim faces prison over terror speeches’ The Times 18th April 2008 at p. 21. The same article states that, on a previous occasion, Izzadeen had said that the London bombings of 2005 were ‘completely justified’.

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genuine difficulty of distinguishing between expressions of understanding, explanation or commemoration on the one hand, and encouragement on the other.132

Significantly, the new provisions have attracted criticism from international human rights bodies. For its part, the Organisation for Security and Co-operation in Europe (OSCE) noted the difficulties in criminalizing the glorification of terrorism in a human rights-compliant way, principally in view the threshold requirements of legal certainty and proportionality.133 In support, the OSCE cited the Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative and the OAS Special Rapporteur on Freedom of Expression. Whilst accepting that it may be legitimate to prohibit incitement to acts of terrorism, the Joint Declaration remarked that terms such as ‘glorifying’ or ‘promoting’ were ‘vague and potentially very overbroad terms.’134 The OSCE concluded that there were ‘concrete risks’ attached to glorification laws that could trigger ‘less healthy expressions of discontent include the recourse to violence and to terrorist acts.’135 The obvious danger was that terrorist groups would find it easier to recruit new members in a political/legal climate which did not tolerate expression that was critical of official policy or majoritarian values. The vagueness of the term means that individual juries will decide in the context of particular sets of facts whether ‘glorification’ has occurred. Thus, ordinary men and women will have to decide when the explanation of an act of terrorist violence shades into justification or praise. When considered alongside the other speech-hostile features of the offence, it is difficult to disagree with the Joint Committee’s assessment that the new law will have the effect of inhibiting expressive freedom and thereby cause a disproportionate interference with speech.136 To make good this point, it is important to be clear about the extraordinary width of the offence. If the analysis offered above is legally sound, it is an offence under s. 1 TA 2006 to speak approvingly of resistance to a despotic regime about even where the speaker does not intend that others be encouraged to commit a terrorist act and there is no danger whatsoever of a terrorist

132

The Council of Europe on the Prevention of Terrorism (First Report of Session) (2007) HL Paper 26 HC 247 at para. 39. 133 Background Paper on Human Rights Considerations in Combating Incitement to Terrorism and Related Offences (2006, OSCE/CoE Expert Workshop, Vienna) available electronically at http:// www.osce.org/item/21814.html. 134 Joint Declaration (UN Special Rapporteur on Freedom of Opinion and Expression, OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression) cited by OSCE/CoE Expert Workshop ibid at p. 9. 135 Ibid., at p. 23. 136 The Council of Europe on the Prevention of Terrorism (First Report of Session) (2007) HL Paper 26 HC 247 at para. 47.


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act against that government being committed.137 It is sufficient that members of the audience are likely to understand the approving statement to be an encouragement to engage in ‘terrorism’ – a term that catches acts and threats that are not violent in themselves but could pose serious damage to public safety or the health of a section of the public as say in the act (or threatened act) of calling for mass demonstrations. It is arguable that aspects of the British media’s coverage of the 2008 Presidential and parliamentary elections in Zimbabwe fulfilled the necessary elements of s. 1.138 The dissemination offence in section 2 of TA 2006 may prove particularly troubling to news broadcast organisations, academic institutions and libraries. The BBC could for example find itself in legal difficulties if it were to broadcast material from Al Jazeera showing the bombing by Iraqi insurgents of coalition forces. As with the direct/indirect incitement offence the context of publication/dissemination is important.139 To be on safe ground, a UK news organisation wishing to broadcast the sort of tape described above might be advised to make clear its disavowal of the acts portrayed in the extract. It is worth noting that the restriction proposed in section 2 goes much further than the bans imposed on broadcasters by the British and Irish governments respectively in respect of interviews of members of Sinn Feín, their sympathisers and other proscribed groups.140 Prompted famously by a wish to deny terrorists the ‘oxygen of publicity’, both bans were in force between 1988 and 1994.141 In the case of the United Kingdom, the restraint was upheld by

137

The Joint Committee’s own preferred example of the wide reach of s. 1 concerned provoking an attempt to finance a threat of terrorism involving serious damage to property outside of the UK to affect the policies of another state, at paras. 48–49. The ‘provocation’ would occur via a published statement that approved the giving of monetary assistance to a group that refused to condemn the use of force against an occupying or undemocratic government, even where the speaker had no intention of encouraging terrorism. 138 Among countless examples consider this Editor’s Blog authored by William M Gumede which appeared at Guardian Unlimited online on 31st March 2008 under the byline ‘Siding with the Dictator’, ‘When it comes to choosing between a dictator and the long-suffering people, African leaders have always instinctively sided with the autocrat, no matter how disreputable he – almost always he – is. Now neighbouring African leaders who have propped up Robert Mugabe for most of his 28-year autocratic rule of Zimbabwe will now have to make a decision they have never had the courage to take before: support the people, instead of the dictator in question. Zimbabwe faces a plunge into chaos, just as Kenya did over a disputed election where the opposition clearly won, but the incompetent leader refused to go. In Zimbabwe, people’s expectations are so high, now that they are so close to getting rid of their dictator, that a loss for the opposition because of a rigged election will turn long bottled-up frustrations and disappointments into violence.’ at http://commentisfree.guardian.co.uk/william_m_gumede/2008/03/siding_with_the_dictator.html. See also the following from David Aaronovitch in ‘Whatever happened to you Aziz, my comrade? ‘Perhaps Zimbabweans, like Darfurians, just die too quietly. They don’t blow themselves up in Arab or African capitals, unleashing reams of conjecture about how desperate they must be, and how their grievances must be dealt with. Aziz, what do you have to say to the beaten dissidents of Harare and Bulawayo? Where is your solidarity now? It may not be what we expected back in’76, but the cause of liberation demands only one thing – you must get rid of Mugabe.’ Times Online March 20, 2007. 139 S. 2(6) TA 2006. 140 The legal bases for the bans were (i) an order made under the Broadcasting Act 1981, s. 29(3) (applying to the commercial broadcasting sector) and (ii) a notice issued under Clause 13(4) of the Licence and Agreement between the Home Secretary and the BBC.

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the House of Lords142 as a lawful, and the European Commission on Human Rights143 as a proportionate, limitation on freedom of expression. Central to each finding was the fact that the ban did not prevent the words of terrorists being reported, merely their actual utterance on air by Sinn Feín/Republican Sinn Feín/ Ulster Defence Association spokesmen/women or persons supporting or soliciting support for those organisations. In addition, the ban did not apply to words spoken by any of the aforementioned persons if broadcast during parliamentary, European or local elections. Section 2 TA 2006 on the other hand is a contents-based measure and nowhere near as narrowly drawn, catching as it potentially does the broadcaster’s own presentation of the terrorists’ message. It would be wrong therefore to infer from the earlier favourable rulings on the 1988 ban that the UK would benefit from a similarly indulgent level of judicial scrutiny in the face of a challenge to s. 2. The attempt in s. 2 to clamp down on the dissemination of terrorist ideology may have been inspired in part by the Spanish authorities’ successful closure of two Basque newspapers Egin in 1998144 and Euskaldunon Egunkaria in 2003. Egin was accused of publishing coded messages to ETA and financing the terrorist organisation whilst staff at Euskaldunon Egunkaria were said to have disseminated terrorist ideology and/or collaborated with ETA. The assets of Euskaldunon Egunkaria were seized and sold off by administrators appointed by the court trying the accused. By December 2005, some two and half years later, legal proceedings against the newspaper and its staff had still not been concluded. Of crucial relevance to the disposition of this case will be the interpretation given by the Spanish judges to the criminal offence inserted into the Penal Code in December 2000 of ‘glorifying terrorism’.145 In due course, the European Court of Human Rights may be called upon to determine whether the new offence satisfies the requirements of proportionality. A separate question arises in relation to the dissemination of purely factual information (such as a bomb-making manual) where distribution amounts to the act of facilitating serious criminal activity by supplying the technical know-how rather than inciting it in the sense of urging a person to commit the crime in ideological terms.146 Leaving aside the practical difficulties in pursuing the disseminators of electronically available material uploaded from outside the juris-

141

The suspending of the bans in 1994 occurred immediately prior to (Eire) and after (UK) the announcement of a truce by the IRA. 142 R v Secretary of State for the Home Department ex parte Brind and Others [1991] 1 Appeal Cases 696. For comment, see Brian Thompson, ‘Broadcasting and Terrorism in the House of Lords’ [1991] PL 346. 143 Brind and Others v UK App No. 18714/91 (1994) 18 European Human Rights Reports Case Digest 76. See in addition Purcell et al v Ireland App No 15404/89 (1991) 70 Decisions & Reports 262 where a more broadly phrased restriction brought into effect via a statutory instrument laid before both Houses of the Irish Parliament was also upheld by the Commission. The statutory instrument was made under powers conferred by the Broadcasting Authority Act 1960, s. 31. 144 The radio station Egin – Irratia was also provisionally closed down. 145 Ley Orgańica 7/2000 inserting Article 578 into the Co´digo Penal. 146 Although, ideological and factual components may often be present in the same expressive act.

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diction,147 an important question of principle arises about the circumstances in which the state should criminalize the dissemination of material that may have lawful as well as unlawful uses. As was noted in Chap. 3 with regard to the offence possessing materials likely to be useful to a person committing or preparing an act of terrorism, the critical question is how, as a matter of principle, resort to penal sanctions might be justified in a constitutional democracy that upholds as one of central commitments the right to freedom of expression. In respect of disseminators of dual-use materials, a starting presumption that expression is lawful could be overturned on the basis of the disseminator’s intentions, the persons to whom the information is disclosed, the practical assistance it provides to those minded to use the information for unlawful purposes. The latter would entail an assessment of the likelihood and severity of harm resulting from adhering to the information. Thus for example one of the clearest cases for penalizing dissemination under the criminal law would exist where a disseminator is shown to have intended the recipient to use the information to an offence and selected a recipient considered likely to use the information in this way. Factors compounding the severity of the crime would include the fact that the information, if acted upon, would have caused the desired impact and that this impact would have cost substantial loss to life and/ or property. Less commonly perhaps, at the other end of the scale, an academic discussion group on Islamic fundamentalism might circulate an insurgent’s manual lifted from the Internet with the purpose of analysing new developments in nonstate terrorism. Although the information might well prove useful to person planning an insurgency, the intentions of the disseminator and the group to whom disclosure occurs makes this scenario a more likely beneficiary of the presumption in favour of freedom of expression.

4.6

Conclusion

This chapter opened by reference to Professor Blasi’s notion of pathological periods – those moments in which unorthodox opinion encounters an elevated sense of alarm and hostility from the mainstream. At such times, Blasi argued not only that political office holders in the US were more likely to suppress dissenting opinion but also that US public opinion was in the main accepting of the loss of speech rights. Blasi’s thesis was that a clear understanding of the First Amendment’s central values and purposes needed to be elaborated by the courts in non-pathological periods in order for dissenting opinion to be more fully

147

For discussion, see M Conway, ‘Terrorist Use of the Internet and Challenges of Governing Cyberspace’ in M Dunn, V Mauer & F Krishna-Hensel (eds.), Power and Security in the Information Age: Investigating the Role of the State in Cyberspace (2007, Ashgate, Hants) and U Sieber & P Brunst, Cyberterrorism – the use of the Internet for terrorist purposes (2007, Council of Europe Publishing, Strasbourg).

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protected at times of heightened intolerance when dissent came under the greatest political pressures. I have suggested in this chapter that the history of the UK is littered with examples of repressive responses to dissenting expression that have benefitted the absence of a clearly articulated and principled constitutional commitment to freedom of expression. In the current era, it is the ‘threat’ posed by radical Islamists that is said to require the latest instance of legal restraint. A significant ‘re-calibration’ of the liberty-security scales away from individual liberty has been successfully implemented.

Chapter 5

Constraints on Newsgathering and the Coercion of Media Organisations: Production/Source Disclosure Orders

5.1

Introduction

Legal protection of journalists’ sources and materials has been said to be a prerequisite for freedom of expression and information. The maintenance and development of an informed, self-governing democracy requires that newsgatherers be free to a significant extent from a compulsion to disclose either their sources of information or notebooks and/or other documents. Coerced disclosure is problematic on a number of counts. For example, once it becomes known that a media organisation has complied with a demand for disclosure of images of demonstrators at a public protest, the safety of journalists and camera crews at demonstrations is put in jeopardy.1 Where hostility is sufficiently pronounced to diminish the range of news organisations covering a particular protest, it is possible that the balance of news reports and comment will fail to reflect the range of information and perspectives that would otherwise have been put into the public domain. Separately, the forced production and seizure of journalists’ materials when a story has yet to be written up or broadcast may well have a serious disruptive effect on the production of news.2

1

Professor Feldman cites an example in which The Independent newspaper was widely reported to have co-operated with police in releasing materials relating to a demonstration against the Criminal Justice and Public Order Bill in 1994. The newspaper received a letter from a demonstrator criticizing its compliance and expressing the fear that the presence of The Independent journalists’ and camera crews in the future might be ‘unwelcome’ D Feldman, ‘Press Freedom and the Police’ in (eds. E Barendt, S Bate, J Dickens, J Michael) The Yearbook of Media and Entertainment Law (1995, Clarendon Press, Oxford) Vol 1 at p. 51. 2 P Thornton, The Civil Liberties of the Zircon Affair (1987, NCCL, London). See also Human Rights Watch, Human Rights in Northern Ireland: A Helsinki Watch Report (1991, Human Rights Watch) – and cited by Feldman, n.1 above.


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108

5 Constraints on Newsgathering and the Coercion of Media Organisations

In respect of sources, an informant may have insisted upon non-identification as a pre-condition of any interview. This has occurred in the case of persons willing to speak to the media about the alleged involvement of security services in Northern Ireland with sectarian murders.3 Any subsequent court order to disclose identity will plainly force the journalist to breach a professional commitment and may also, in certain contexts, put the journalist and/or the source in physical danger. Beyond this, such orders will inevitably staunch the flow of facts and information into the public domain thereby undermining informed discussion and debate. What no one can be sure of however is the extent to which public discussion and debate is impoverished.4 Where production/disclosure orders are frequently granted, this may fuel suspicions that the news media has been annexed as an ancillary investigative arm of the state. As Voorhoof has commented, this may provide the strongest of reasons for not ordering disclosure: The crucial reason for not compelling journalists to reveal their sources . . . is that . . . (they) should not be considered as virtual collaborators, as tools for police investigation or judicial prosecution.5

There are additional, unwanted dangers of inducing inefficient conduct on the part of investigative and prosecutorial authorities where the police and prosecutors carry out their duties less diligently in the knowledge that journalists may be compelled to assist. At the same time, even if it is accepted that an unspecified number of informants will cease to speak to the media if they fear identification by a reporter in any official investigation, an undue weighting of the competing interests in favour of the media would mean that the pursuit of vital societal interests in respect of the detection and prevention of crime could be seriously hampered. This much is recognised even in the most speech-protective jurisdictions. The majority of the US Supreme Court in Branzburg v Hayes held that the First Amendment did not require that the public interest in receiving speech from unidentified informants in the future always be prioritised above the need to prosecute in an efficient manner

3

As in DPP v Channel Four Television Co & Another [1993] 2 All ER 517 and see R Costigan. ‘Further Dispatches’ (1992) 142 NLJ 1417. Commenting on the state of empirical evidence in 1972, Justice Stewart in Branzburg v Hayes 408 US 665 (1972) noted that that the promise of nondisclosure was necessary for many types of news gathering. See further JA Guest & AL Stanzler, ‘The Constitutional Argument for Newsmen Concealing Their Sources’ (1969) 64 NwULRev. 18, R Dworkin, A Matter of Principle (1985, OUP, Oxford) ch. 18. 4 There is some empirical analysis of the extent to which in the 1960’s US news organisations relied for their newsgathering activities upon sources requesting anonymity. See article by Guest & Stanzler ibid. 5 Paper presented at Council of Europe Conference ‘The media in a democratic society. Reconciling freedom of expression with the protection of human rights’ Luxembourg 30 September – 1 October 2002.

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criminal activity revealed by the informant.6 Moreover, as Fenwick & Phillipson point out, information provided by anonymous sources need not be intrinsically more valuable to a self-governing democracy.7 Indeed, sometimes misleading information (or even false information) will be put anonymously into the public domain with the intention of undermining political or commercial rivals. Protecting the flow of misleading information is plainly counter-productive to informed selfrule. The difficult question to arise in such cases is whether the motivations of the source, the quality of the information (and other case-specific matters) should incline the courts towards ordering disclosure of the source’s identity or, alternatively, whether the general principle of source anonymity should be treated as a constant value (and individual features bearing upon the source’s conduct, quality of information etc. ignored) in judicial analyses of the boundaries between journalists’ privilege and compelled disclosure. Of course, aside from assisting the prosecution of criminal activity, orders may serve other state interests such as national security as well as more obviously private interests in respect of commercially sensitive information and individual reputation. In the employment context, the Public Interest Disclosure Act 1998 provides a means by which workers may disclose matters of genuine public interest without fear of being subsequently victimised or dismissed.8 Although the Act’s primary emphasis is upon a more limited form of disclosure to employers, there is also protection for workers who make disclosures directly to the news media. This chapter sets out the legislative framework governing production orders, the disclosure of sources and other forms of compelled coercion that are relevant to counter-terrorism investigations. Additional statutory obligations to assist police investigations into alleged terrorist activity are also analysed in the foregoing set of materials. Given the extended width of the definition of terrorism in UK law, the principal interest here centres upon Schedule 5 of the Terrorism Act 2000. This statute relies heavily upon the framework developed in an earlier statute – the Police and Criminal Evidence Act 1984 (hereafter PACE). Until 2000, PACE and subsequently the Prevention of Terrorism Act 1989 (PTA) determined the circumstances in which journalists were compelled to hand over their notes and records in connection with a terrorist investigation. The issue that is considered in this chapter is whether, in the context of the struggle against terrorism, orders to disclose sources and production orders have become more routine. If so, ought this fact to concern us?

6

408 US 665 (1972), although it should be noted that the four dissenting justices said there should be an absolute or qualified first amendment privilege. In the event, Branzburg opened the way for states to develop their own ‘shield laws’ Whilst a few confer absolute protection (including New York and Indiana – the latter in respect of sources’ identities only), most states qualify the circumstances in which journalists need not divulge their sources. Texas, by contrast, does not have a shield law of any description. 7 Media Freedom under Human Rights Act (2006, OUP, Oxford) ch. 7. 8 Inserting new clauses into the Employment Rights Act 1996. For commentary, see Y Cripps, ‘The Public Interest Disclosure Act 1998’ in (eds. J Beatson & Y Cripps), Freedom of Expression and Freedom of Information – Essays in Honour of Sir David Williams (2000, OUP, Oxford).

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5.2

Production/Access Orders Under s. 9 & Sch. 1 of the Police and Criminal Evidence Act 1984 (PACE)9

The special regime to protect ‘journalistic material’ created by PACE was intended to reflect the heightened importance that is attached in a democracy to the media’s newsgathering activities. The term ‘journalistic material’itself is defined in PACE as documents or records held by someone for the purposes of journalism or received from another whose intention was that the recipient should use the material for journalistic purposes.10 Significantly, PACE created an inter partes procedure before a circuit judge for production/access orders in respect of journalistic materials. This represented an improvement on the previous position at common law where journalists were subject to general police powers of criminal investigation. An application to magistrates was made ex parte for a warrant authorizing entry, search and seizure of materials found on journalists’ premises. Under PACE, journalists are entitled to be given advance notice that the police intend to go before a circuit judge to apply for a production/access order and thereby to contest the application. The criteria that the circuit judge applies to determine whether a production/ access order ought to be made depends on whether the journalistic material is classified as special procedure material or excluded material. Journalistic material will normally fall within the definition of special procedure material unless it is held under a duty of confidentiality in which case it will be treated as ‘excluded material. Journalists do sometimes give express assurances of confidentiality in respect of material supplied to them and this assurance will suffice to make the material ‘excluded’ for the purposes of the 1984 Act.11 Where the material in question is not held in confidence, an order may be granted if the judge is satisfied that the following conditions are met12: (a) there are reasonable grounds for believing – (i) that an indictable offence has been committed;13 (ii) that there is material which consists of special procedure material or also includes special procedure material and does not also include excluded material on premises specified in the application, or on premises occupied or controlled by a person specified in the application (including all such premises on which there are

9

See in general D Feldman at n. 1 above. PACE s. 13. This is perhaps more significant today with the much broader range of persons who blog and otherwise contribute to discussion forums on the Internet. 11 For a detailed discussion of the second set of access conditions, see D Feldman at n. 1 above at pp. 66–68. 12 PACE, Sch.1 para. 2. 13 ‘Indictable’ replaced ‘serious arrestable’ as a result of the Serious Organised Crime and Police Act 2005, s. 110. 10

5.2 Production/Access Orders Under s. 9 & Sch. 1 of the Police

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reasonable grounds for believing that there is such material as it is reasonably practicable so to specify); (iii) that the material is likely to be of substantial value (whether by itself or together with other material) to the investigation in connection with which the application is made; and (iv) that the material is likely to be relevant evidence; (b) other methods of obtaining the material – (i) have been tried without success; or (ii) have not been tried because it appeared that they were bound to fail; and (c) it is in the public interest, having regard – (i) to the benefit likely to accrue to the investigation if the material is obtained; and (ii) to the circumstances under which the person in possession of the material holds it, that the material should be produced or that access to it should be given.

Given the structure of the first set of access conditions, it would seem entirely possible for an application to satisfy elements (a)14 and (b) but fail at the final hurdle (c) when the judge comes to exercise a residual discretion to weigh up competing factors bearing on the public interest. However, as several commentators have noted, in practice, once (a) and (b) have been deemed satisfied, judges have been extremely unwilling to find that residual public interest factors might ultimately tilt the balance against an order.15 Noteworthy in this regard are the remarks of Taylor LJ in R v Northampton Crown Court ex parte DPP who asserted that it would be ‘Wednesbury unreasonable’ for a circuit judge to refuse to issue an order once requirements (a) and (b) had been made out.16 As a matter of strict logic, this cannot be so. As R v Central Criminal Court ex parte Bright has since confirmed, the courts should enjoy a discretion to factor in other public interest considerations (such as the chilling effect of an order on the flow of information into the public domain and proportionality issues concerning the relationship between what might be gained via an order and the offence to which it relates).17Bright also ruled that where the materials sought might reasonably be believed to expose the party against whom the order is sought to a real risk of prosecution, the privilege against selfincrimination was an important factor for the judge to take into account before exercising the statutory discretion.18 In the Human Rights Act era, the availability

14

For critical scrutiny of element (a) of circuit court orders see R v Central Criminal Court ex parte Bright [2001] 2 All ER 244, 266. The Queen’s Bench Division held that the production order issued against The Guardian would be quashed because there was insufficient evidence to support the belief that the material sought by the police was available from the offices of The Guardian. 15 See for example R v Bristol Crown Court ex parte Bristol Press & Picture Agency Ltd (1986) 85 Cr App R 190. 16 For criticism, see Feldman n. 1 above at p. 65 and R Costigan, ‘Fleet Street blues: police seizure of journalists’ material [1996] Crim L R 231, 234–236. Costigan also refers to a similar line of reasoning in R v Central Criminal Court ex parte Carr (unreported) (1987) February 27. 17 [2001] 2 All ER 244, 259–260. 18 This was the majority position in Bright. Judge LJ dissenting stated that the privilege was a ‘complete answer’ to an application for a production order.

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of other, less draconian means of accessing the information19 when deciding whether to make an order might also be thought relevant on proportionality grounds to the exercise of judicial discretion. The procedural safeguards of the inter partes procedure can however be avoided under para. 12 Schedule 1 of PACE where a search warrant is granted ex parte by a circuit judge. This may be granted where, in addition to the access conditions having been met, it is shown that the service of a notice upon the person in possession of the material ‘may seriously prejudice the investigation.’20

5.3

Production/Access Orders Under Terrorism Act 200021

Today, under a considerably expanded definition of terrorism (that was earlier outlined in Chap. 3), journalists covering terrorism matters appear especially vulnerable to production/access orders under counter terrorism powers. The power to seek a production/access order in respect of excluded and special procedure material lies in respect of the conduct of a ‘terrorist investigation’ under Schedule 5 (para. 5) of the 2000 Act, as opposed to an indictable offence under PACE.22 A terrorist investigation is defined under s. 32 of the 2000 Act to mean an investigation into (i) the commission, preparation or instigation of (a) acts of terrorism or (b) an offence under the 2000 and 2006 Terrorism Acts; (ii) an act which appears to have been done for the purposes of terrorism; (iii) the resources of a proscribed organisation; (iv) the possibility of making a proscription order.

Nonetheless, a narrowing of the scope of production orders was secured by virtue of the express exclusion in s. 32 of investigations into the offences of glorification, indirect encouragement and dissemination of indirect encouragement from the category of a ‘terrorist investigation’.23

19

Nb that condition (b) refers to other methods of obtaining the material. Sch. 1, para. 14(d). Other circumstances in which the inter partes procedure can be dispensed with include where, the access conditions having been met, it is ‘not practicable to communicate with any person entitled to grant entry to the premises. . . (or) the material.’ Sch. 1, para. 14 (a) & (b). 21 The predecessor to this Act was the Prevention of Terrorism (Temporary Provisions) Act 1989. For instances of the use of the 1989 Act to obtain access to journalists’ materials, see R v Middlesex Guildhall Crown Court, ex parte Salinger [1993] 2 WLR 438 in respect of an order against ABC News to supply the London police with film interviews of the two Libyan men charged with the Lockerbie bombing (on procedures to be followed by police); Re Moloney’s Application for Judicial Review[2000] NIJB 195. I do not deal here with additional disclosure rules that exist in connection with financial investigations into the funding of terrorism. 22 TA 2000, s. 37. 23 TA 2000, s. 32(e). 20

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Unlike applications for special procedure and excluded material under PACE, Schedule 5 TA 2000 can be invoked without giving prior notice to journalist possessing the material and, where an application is successful, require a journalist to produce/allow access to the material within a specified period.24 Moreover (and once more unlike PACE) where the material is not in the journalist’s possession/ custody or power, he/she is required to state its location to the best of his/her knowledge/belief.25 The two access conditions which must be met before an order may be granted by a Circuit judge are set out in para. 6(2) & (3) of Schedule 5 and share broad similarities with Schedule 1 of PACE. First, the order must be sought for the purposes of a terrorist investigation in circumstances where ‘reasonable grounds exist for believing that the material is likely to be of substantial value, whether by itself or together with other material to a terrorist investigation.’ Second, there must be reasonable grounds for believing that it is in the public interest that that the material should be produced or that access given having regard (a) to the benefit likely to accrue to a terrorist organisation if the material is obtained, and (b) to the circumstances under which the person concerned has any of the material under his possession, custody or power.

Where a Circuit judge is satisfied that it would not be ‘practicable’ to communicate with a person holding the material under the para. 5 procedure or that the terrorist investigation may be ‘seriously prejudiced’ by resort to the para. 5 procedure, then a warrant authorising entry, search and seizure of relevant material may be granted under para. 11 of Schedule 5. This provision assists the police where the use of the ex parte procedure in para. 5 is considered likely to tip off collaborators. In cases of ‘great emergency’ where ‘immediate action is necessary’ a police officer of the rank of superintendant or above may authorise a search under para. 11.26 Police powers to coerce cooperation from journalists and others are further enhanced under para. 13 of Schedule 5. In respect of material seized under paras. 5 & 11, a police officer can apply to a Circuit judge for an order requiring journalists to provide an explanation of the material seized. It is an offence to provide knowingly or recklessly a false or misleading statement in response. It is known that police officers have used these powers against investigative journalists in Northern Ireland, although the Northern Ireland High Court has not always upheld production orders granted by the lower courts there.27

24

TA 2000, Sch. 5, para. 5 (3) (a) & (b) Walker suggests that within 7 days would be a usual time limit, C Walker, Blackstone’s Guide to The Anti-Terrorism Legislation (2002, OUP, Oxford) at p. 95. 25 TA 2000 Sch. 5, para. 5 (3) (c). 26 TA 2000, Sch. 5, para. 15. 27 In the Matter of an Application by PM (A Minor)[2007] NIQB 2; Re Moloney’s Application for Judicial Review [2000] NIJB 195. See also R Costigan, ‘Further Dispatches’ (1992) 142 NLJ 1417. C Walker, Blackstone’s Guide to the Anti-Terrorism Legislation (2002, OUP, Oxford) at p. 97. A statement made by a person under para. 13 may be used in evidence against them for a para. 14 offence only and not more widely, para. 13(4)(b).

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A useful indication of the courts’ contemporary approach to production orders under the 2000 Act has been provided in Shiv Malik v Manchester Crown Court, Chief Constable of Manchester.28 The ruling is significant not only on account of the context – the order was sought against a journalist writing a book about an alleged former Al Qaeda activist – but also what is revealed about the impact of Article 10 of the European Convention on Human Rights on the exercise of judicial discretion under the 2000 Act. As the foregoing account of Malik illustrates, Article 10 has the potential to narrow down the terms of production orders made in lower courts, thereby preventing the archetypal ‘fishing’ expedition that, in a much earlier era, vexed the Court of Common Pleas in Entick v Carrington.29 At the time of the order, the claimant, a freelance journalist, was writing a book entitled Leaving Al-Qaeda: Inside the Mind of a British Jihadist in collaboration with Hassan Butt.30 The latter had openly admitted to involvement with Al-Qaeda and certain criminal activities associated with the terrorist group including the murder of eleven Pakistanis in Karachi. Butt was under police investigation when the order was granted against Malik. The latter sought review of the Circuit judge’s order (which required disclosure of materials relating to Butt, Al-Qaeda including drafts of, and source materials for the book, images associated with the publication whether intended for publication or not) partly on the basis that insufficient weight had been given to Article 10 considerations. Malik argued that the order, if upheld, would have a devastating effect on his ability to pursue a living as an investigative journalist, compromising his journalistic integrity and reputation as well as placing himself, his wife and family in extreme physical danger. The latter implicated additionally Malik’s Convention rights under Articles 2 & 3 which, it was argued, the Circuit judge had also neglected to consider. The High Court ruled that the Circuit judge was entitled to find that the first access condition in para. 6(2) of Schedule 5 TA 2000 was satisfied. There were reasonable grounds for believing that Butt’s account to the police and the one he supplied to Malik would not be the same and that, accordingly, Malik’s materials would be of substantial value to the police.31 On the matter of the second set of access conditions, the High Court set out its understanding of Strasbourg jurisprudence on Article 10 ECHR as the latter impacted on production orders namely:

28

[2008] EWHC 1362. An action for judicial review is limited to assessing the legality of the order under review. This is to be distinguished from appeal proceedings in which the merits of an order could be revisited. As matters unfolded in Malik however, the High Court’s redrafting of the original order achieved much the same outcome as any appeal proceedings. 29 (1765) 19 Howell’s State Trials 1029. 30 Hassan Butt has been interviewed on a number of occasions on the national media about his previous connections to Al-Qaeda without seeking to conceal his true identity. 31 Counsel for the police did not need to satisfy the higher threshold test (the material was in fact likely to be of substantial value, a reasonable belief as to the substantial value was sufficient).

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(i) the court should attach considerable weight to the nature of the right interfered with when the application is made against a journalist; (ii) the proportionality of any proposed order should be measured and justified against that weight; (iii) a person who applies for an order should provide a clear and compelling case in justification of it.32

That said, the High Court also recognised the ‘powerful public interest in protecting society from terrorism’ that lay behind the terms of para. 6 (and was a justified purpose behind the limitation of freedom of expression within the Article 10(2) ‘prevention of crime’ head) whereby the police were enabled to conduct effective investigations into alleged terrorist activity. The seriousness of the allegations against Butt that the police were investigating taken together with the likely benefit to be derived from the material meant that the Circuit judge’s approach to Article 10 could not be criticised. The High Court also approved the ruling in Bright that the Circuit judge should treat the privilege against self-incrimination as an important factor when deciding whether and to what extent disclosure should be ordered. Malik’s other argument on Articles 2 & 3 was dismissed. Disclosure of the material emanating from Butt was not claimed to have revealed the identity of other sources. As such, it could not put Malik’s life or his family members in any physical threat. Had Butt’s identity been kept secret by Malik and the publishers, or had Butt’s material been shown to lead to the identification of other sources then the analysis might have been different on this point. The High Court’s main criticism of the Circuit judge’s decision concerned the width of the original production order. As originally stated, the order could have led to the identification of the claimant’s other sources via documents such as the claimant’s contact lists. Consequently, the court invited further submissions on the precise terms of a narrowed order.

5.4

Other Forms of Compelled Disclosure Affecting Journalists

The Terrorism Act 2000 and the Anti-terrorism, Crime and Security Act 2001 bring into effect a new set of duties on journalists and others to assist police investigations by disclosing information about terrorist fundraising33 and suspected terrorist activity more generally.34 It is a criminal offence to fail to comply with either duty, although it is defence to prove that there was a ‘reasonable excuse’ for 32

Ibid.at para. 48 and see Goodwin v UK (1996) 22 EHRR 123. Terrorist Act 2000, s. 19. This obligation only arises when the information about funding comes to a person’s attention ‘in the course of his trade, profession, business, or employment’ under s. 19 (1)(b). 34 Terrorist Act 2000, s. 38(2) inserted by the Anti-terrorism, Crime and Security Act 2001. The DPP’s consent is needed for a prosecution in England and Wales. 33

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non-compliance. When pressed in Parliament about whether the new power to force disclose about terrorist fundraising might inhibit investigative journalists’ professional activities, the Home Office Minister, Lord Bassam, did little to reassure concerned media onlookers. Whilst conceding that protecting their sources of information was ‘an important principle’ for journalists he continued, However, money and other resources are the lifeblood of terrorist organisations. The offences in Part III are extremely important in deterring and disrupting the planning and execution of any act of terrorism . . .35

Focusing on information about suspected terrorist activity, section 38B(2) of TA 2000 provides that where a person has information which he knows or believes might be of material assistance – (a) in preventing the commission by another person of an act of terrorism, or (b) in securing the apprehension, prosecution or conviction of another person, in the United Kingdom, for an offence involving the commission, preparation or instigation of an act of terrorism. (2) The person commits an offence if he does not disclose the information as soon as reasonably practicable ... (4) It is a defence for a person charged with an offence under subsection (2) to prove that he had a reasonable excuse for not making the disclosure.

The insertion of s. 38B(2) into TA 2000 was controversial. As Lord Lloyd’s review of terrorism legislation noted, the provision targets persons ‘on the fringes of terrorist activity.’36 These persons might have given some practical help to someone only to discover subsequently that the latter was engaged in terrorist activity. Alternatively, the family members or work colleagues of a person suspected of terrorist activity may come under a duty to disclose via this section. This section is broad enough to impose a duty of disclosure upon a journalist who through his/her profession comes into the possession of information that might relate to terrorist activity. Clearly, the legislature’s preference for a criminal sanction in the event of non-disclosure reflects the moral seriousness (or potential seriousness) of a failure to inform the police and security services of matters that could either prevent terrorist activity or lead to the arrest, prosecution and conviction of terrorists. The uniquely evil nature of terrorist activity may be thought to demand exceptionally that the moral duty be converted into a legal equivalent, even though family and other, close personal relationships are thereby strained or irreparably damaged.37 Even if this much is conceded, it is still important that the position of the media be afforded particular consideration for the reasons set out at the beginning of this chapter. Thus, where the information in question relates to the source of a journalist’s material, 35

(1999–2000) HL Debs. Vol. 613, col. 653. Lord Lloyd of Berwick, Inquiry into Legislation against Terrorism Cm 3420 Vol. 1. (1996, HMSO, London) at para. 14.18. 37 There are other statutory exceptions where a failure to disclose information is an offence including s. 6(1) of the Official Secrets Act 1920. 36

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the analysis of the journalist’s culpability under s. 38B(2) should hinge on whether (s)he was entitled to rely on the statutory presumption in favour of source confidentiality set down in section 10 of the Contempt of Court Act 1981. A relevant practical question is whether the existence of a disclosure duty does in fact yield up more valuable information to investigating authorities. Lord Lloyd’s review in 1996 noted that section 18 of the Prevention of Terrorism Act 1989 (the predecessor version of s. 38B(2) TA 2000) was rarely used on the mainland, although it was more frequently charged in Northern Ireland.38 He concluded that the police would be little hampered by the absence of an obligation to disclose and recommended its repeal.39 From a newsgathering perspective, the critical issue raised by s. 38B(2) centres upon its impact on investigative reporting. Walker has documented a number of incidents in which journalists covering terrorist incidents in Northern Ireland were threatened with prosecution unless they disclosed information gathered in the course of their professional activities to the police, although there is no reported instance of a journalist being charged since 1979.40 The threat alone of prosecution under s. 38B(2) may well have been sufficient in a percentage of cases for the police to obtain the desired information. In this way, the safeguards built into the alternative procedures for obtaining a production/access order in respect of a ‘terrorist investigation’ could well have been circumvented. The co-opting of journalists as an arm of the criminal investigation apparatus of the state raises a host of difficulties of a sort that were adverted to earlier. At its most severe, the existence of the offence (or the absence of special safeguards for journalists covering terrorist matters) would seem to constitute a substantial disincentive to engage in serious investigative journalism. As it is currently drafted, s. 38B(2) fails to offer specific reassurance to media professionals that their watchdog function will be adequately respected by the state. In result, it is plausible to claim that the accountability of policing and security agencies may be diminished although, as is the case with any ‘chill’ on freedom of expression, the extent of any inhibitory effect can never be known. It is possible too that ‘reasonable excuse’ in s. 38B(4) may be given a broad interpretation under the Human Rights Act 1998 to reflect the legitimate public interest in the flow of information in a self-governing democracy, although the

38

Ibid.,at para. 14.20. For analysis, see C Walker, The Prevention of Terrorism in British Law (2nd edn.) (1992, Manchester Univ Press, Manchester) at pp. 130–155. 39 Ibid., at para. 14.24 (as had the respective reviews previously conducted by Viscount Colville (Review of the Northern Ireland (Emergency Provisions) Acts 1978 and 1987 (1990) Cm 1115 HMSO, London) & Lord Shackleton (Review of the Operation of the Prevention of Terrorism (Temporary Provisions) Act 1974 and 1976) (1978) Cmnd 7324 HMSO, London). Lord Jellicoe, on the other hand, was persuaded of the case of retaining the offence, albeit under guidance from a Home Office Circular about its use in practice, Review of the Operation of the Prevention of Terrorism (Temporary Provisions) Act 1976, (1983) Cmnd. 8803 HMSO, London. 40 C Walker, The Prevention of Terrorism in British Law (2nd edn.) (1992, Manchester Univ Press, Manchester) at pp. 141–144.

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fact that the section imposes a legal as opposed to a merely evidential burden of proof on the defendant may make this outcome less likely.41 Moreover, the offence contrasts less favourably with the equivalent provision in respect of a failure to produce/allow access to journalistic materials where an independent judicial authority has to decide the prior question of whether a duty to co-operate has been made out.

5.5

Disclosure of Journalists Sources42

It is possible to envisage scenarios in which a journalist’s compliance with the duty in s. 38B(2) TA 2000 or the grant of a production/access order will almost certainly lead to the identification of a source. Where identification is likely, journalists and other media professionals might be expected to fall back on the statutory privilege excusing non-compliance with disclosure set out in s. 10 of the Contempt of Court 1981 as a means of challenging the case for disclosure. In a non-terrorist investigation context, an application for disclosure of materials held by Channel 4 was made by the Assistant Deputy Coroner for Inner West London in 2008 who was seeking to establish the cause of deaths of Diana, Princess of Wales and Dodi Al Fayed in 1997. Lawyers for Channel 4 opposed the application on the grounds that release of the material would lead to the identification of two sources.43 The case was treated as falling under section 10 of the Contempt of Court Act 1981 and the Assistant Deputy Coroner’s application subsequently granted on the basis that this constituted an extremely limited form of disclosure.44 Section 10 provides: ‘No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.’

41

This means that the journalist has to satisfy the court on a balance of probabilities that (s)he had a reasonable excuse for non-disclosure. This is a more stringent requirement than an evidential burden where the introduction of some piece of evidence in favour of the defendant shifts the onus of proof back on to the prosecution to show beyond all reasonable doubt that the defendant is guilty of the offence, see further Sheldrake v DPP, AG’s Reference (No.4 of 2002) [2004] UKHL 43. 42 See generally, R Costigan, ‘Protection of Journalists’ Sources’ [2007] PL 464; H Fenwick & G Phillipson, Media Freedom under the Human Rights Act (2006, OUP, Oxford) ch. 7; G Robertson & A Nicol, Media Law (5th edn.) (2008, Penguin, London) ch. 5. 43 Inner West London Assistant Deputy Coroner v Channel 4 television Corporation [2008] 1 WLR 945. 44 In the event that the Assistant Deputy Coroner were to consider revealing the source identities to the parties or jury at the inquest, Eady J held that the Coroner would have to weigh the competing interests at stake.

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It has fallen to the courts in a number of important cases to define the extent of the statutory protection conferred on journalists under s. 10 of the 1981 Act. Inevitably, much attention has been devoted to the width of the enumerated exceptional categories (the interests of justice, national security, the prevention of disorder or the prevention of crime) that permit a court to make a disclosure order. At least three of the four enumerated heads could prove relevant to the investigation of terrorist activity and will be considered below. To begin with however, a brief account of the old common law rules which preceded the 1981 Act is set out.

5.5.1

The Position at Common Law

At common law, media attempts to maintain the confidentiality of their sources were invariably unsuccessful. Journalists, it was stated, enjoyed no general immunity or privilege from the obligation to disclose their sources. The underlying reason for this lack of protection may be traced to the courts’ unwillingness to recognise the wider freedom of expression/constitutional context within which disclosure orders were situated. Thus the Queen’s Bench Division in one of the early authorities AG v Clough held that journalists would ordinarily be required to disclose their sources where this was relevant to investigating authorities’ inquiries. Only in exceptional circumstances would it be open to a court to relieve a journalist of this obligation.45 In the same year, the Court of Appeal adopted a higher threshold standard in AG v Mulholland and Foster by confining the requirement to disclose to those cases where disclosure was relevant and necessary to the legal proceedings.46 On the facts in Mulholland, two journalists were imprisoned for 6 and 3 months respectively for refusing to disclose their sources to a tribunal of inquiry set up to investigate the circumstances surrounding espionage offences committed by Vassall, a clerk in the Admiralty Office. An order for disclosure was likewise made by the House of Lords (in a majority 4-1 ruling) in British Steel Corporation v Granada Television Ltd 47 where the appellant broadcasters had been sent confidential documents by an employee relating to the management of the British Steel Corporation (BSC) and used extracts from the same in a programme broadcast about the national strike between unions and management. The majority once more denied that the common law conferred on journalists a privilege from disclosure. In fact, their Lordships were clearly troubled by Granada’s involvement in the matter – a factor which disinclined them to favour the broadcaster. Specifically, the Court observed that Granada had become caught up in the source’s 45

[1963] 1 QB 773. [1963] 2 QB 477. For a rare instance where disclosure was not considered necessary see AG v Lundin (1982) 75 Cr App R 90 and see further CJ Miller, Contempt of Court (2000, OUP, Oxford) paras. 4.55–57; and Arlidge, Eady & Smith The Law of Contempt (2001, Sweet & Maxwell, London). 47 [1981] AC 1096. 46

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breach of confidence by being in knowing receipt of the documents. It had also tampered with the documents before returning them (so as to prevent identification of the source). This would, in the absence of a disclosure order, make it extremely difficult for BSC to identify and take appropriate action against Granada’s source. In those circumstances, for justice to be done, an order for disclosure of the source’s identity had to be made. In hindsight, an equally important facet of Granada is that it marks the moment in English judicial reasoning when principled arguments about the benefits to democratic self-government that flow from a non-absolute form of journalist privilege came to the fore. Lord Denning MR for example in the Court of Appeal after citing US case law concluded that the public has a right of access to information which is of public concern and of which the public ought to know. The newspapers are the agents so to speak of the public to collect that information and to tell the public of it. In support of this right of access, the newspapers should not in general be compelled to disclose their sources of information.48

In the House of Lords, Lord Salmon in a striking dissent declared: My Lords, a free press is one of the pillars of freedom in this and indeed in any other democratic country. Granada Television Ltd . . . reports news throughout the whole of this country. . . A free press reports matters of general public importance, and cannot, in law, be under any obligation, save in general circumstances to disclose the identity of persons who supply it with information appearing in its reports.49

He noted that BSC was a publicly-owned company which had lost £700 million pounds of British taxpayers’ money in 1979. If it was being badly managed, the public was ‘morally entitled’ to be told about this state of affairs. It was in the public interest for the media to enjoy immunity from revealing its sources in all but exceptional cases. Here, no such exceptional case had been made out.

5.5.2

Statutory Protection for Non-Disclosure of Sources

If the courts had been edging towards greater recognition of journalists’ privilege to withhold the names of their sources, Parliament soon made clear its general support for source anonymity in the form of s. 10 of the Contempt of Court Act 1981. The structure of this section is relatively uncomplicated. There is a statutory presumption in favour of the privilege which can only be overridden when the 48

Ibid. at 1129. Denning ultimately concluded however that Granada did have to reveal its sources because of the ‘abuse of power’ which had occurred. He seems to be referring here to the facts that Granada did not give BSC an early warning that it had come into possession of the leaked documents and that it had not given the corporation’s chairman any opportunity to learn of programme’s script before interviewing him. Furthermore, Granada’s act of tampering with documents had been ‘disgraceful’. 49 [1980] AC 1096, 1184.


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court is satisfied that it is ‘necessary’ in the interests of one of four enumerated heads (justice, national security, prevention of disorder, prevention of crime) that disclosure ought to be made. Lord Scarman, who was known to be supportive of a legislative version of the privilege, stated that s. 10 would be seen as ‘a change in the law of profound significance.’50 A final preliminary point to note at this stage is that s. 10 confers no new authority on courts to issue disclosure orders.51 That is to say, s. 10 presumes that the court already enjoys the power to make a disclosure order and puts limits on the circumstances in which this common law jurisdiction (otherwise known as the Norwich Pharmacal jurisdiction) can be exercised.

5.5.2.1

Pre-Human Rights Act era

In the period leading up to the enactment of the Human Rights Act 1998, the courts adopted a broad, purposive interpretation of the presumption whilst, at the same time, also favouring a generous view of the enumerated exceptional categories. As a result, much if not all of what was gained by the expansive interpretation of the statutory presumption was effectively nullified. The broad purposive interpretation in favour of the flow of information into the public domain is illustrated in a number of aspects of the pre-HRA jurisprudence. Journalists are entitled to the protection of s. 10 even though, at the time of the action for disclosure, no publication has occurred and the journalist merely possesses material which is preparatory to a publication. The reason for the adoption of this rule was to prevent circumvention of the statutory protection by claimants who learn prior to publication that a source has revealed certain material to the journalist.52 Moreover, media organisations are entitled to rely on s. 10 not only in those cases where an order to disclose a source is sought, but also those cases where an order is sought requiring the disclosure of material (such as occurs in applications for production/access orders) from which the source’s identity may be traced.53 Finally, s. 10 could be relied upon notwithstanding the fact the claimant’s property rights in the documents which were passed to the journalist had clearly been interfered with.54 State agencies charged with counter terrorism responsibilities and seeking disclosure of a journalist’s sources are likely to argue for disclosure under the ‘interests of national security and prevention of . . . crime’ exceptional categories. The width of these categories make it far less likely that the ‘interests of justice’ 50

Secretary of State for Defence v Guardian Newspapers [1985] AC 339, 361. See further CJ Miller, Contempt of Court (2000, OUP, Oxford) para. 4.58 and S Palmer, ‘Section 10, Contempt of Court Act 1981’ [1992] PL 64. 51 Ashworth Security Hospital v MGN Ltd [2002] 4 All ER 193. 52 X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1. 53 Ibid. 54 Secretary of State for Defence v Guardian Newspapers [1985] AC 339 and X Ltd v MorganGrampian (Publishers) Ltd [1991] 1 AC 1.

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exception would need to be invoked, although there may be some residual role for this head where the state applies for disclosure qua the employer of the unidentified source. (a)

‘the interests of national security’

In Secretary of State for Defence v Guardian Newspapers a civil servant sent two documents to The Guardian relating to the deployment of American Cruise missiles at UK missile sites. One of the documents was published and the Government sought to discover the source of the leak by requiring The Guardian to return the documents so that the differentiating marks on the leaked copy could be used to trace the identity of its source. By a 3-2 majority, the House of Lords held that the interests of national security demanded that the return of the documents. All five of their Lordships were agreed however that it was not sufficient for the Government merely to assert in its sworn evidence to the court that national security considerations were at stake. The Court would have to be persuaded on the basis of proper evidence that national security would be put in danger if the documents in question were not returned. When the paper did return the documents, its failure to remove identifying marks led to the identification, prosecution and imprisonment of Sarah Tisdall for leaking government information contrary to section 2 of the Official Secrets Act 1911. (b)

‘the interests of the prevention of . . . crime’55

The leading authority on the width of this exceptional category is the House of Lords ruling In re An Inquiry under the Companies Securities (Insider Dealing) Act 1985.56 Department of Trade and Industry inspectors were investigating an allegation of insider-dealing. For criminal liability to arise under this offence, persons must act with knowledge of matters (such as take-over bids) which are likely to affect the share price of a company in advance of that knowledge being made public and thereby may make a substantial profit by selling/buying shares. One journalist Jeremy Warner had published articles in The Times and The Independent which indicated that he had information about a specific instance of insider dealing. He refused to reveal his sources of information to DTI inspectors who interviewed him and the question arose of whether he had a ‘reasonable excuse’ under s. 178 of the Financial Services Act 1986 for his refusal. In court, it was agreed that the reasonableness or otherwise of his refusal hinged on whether he was required to disclose his sources under s. 10 of the 1981 Act. The DTI inspectors claimed that disclosure was ‘necessary in the interests of the prevention of crime.’57 In the House of Lords, Lord Griffiths said that the phrase ‘necessary in the interests 55

There appears to be no reported case in which disclosure has been sought for the purposes of preventing disorder. 56 [1988] AC 660. 57 Where the agency seeking disclosure does not have a crime prevention/detection function, it will be difficult for it to argue for disclosure under this head of exception, see X v Y [1988] 2 All ER 648.


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of the prevention of crime’ has ‘a meaning somewhere between ‘indispensable’ on the one hand and ‘useful’ or ‘expedient’ on the other. Counsel for the journalist argued for a narrow interpretation of ‘necessary’ namely that only if DTI inspectors could show that disclosure by Warner would prevent further illegal insider dealing, would a court be able to order that disclosure be made. This interpretation was rejected by the House of Lords. Instead, the phrase was to be given its wider meaning which related to prevention of crime in a general sense. Thus disclosure could be ordered by the court if the DTI inspectors could merely show that disclosure would have a general deterrent effect upon leaks of information and insider-trading. In other words, there was no need to show that the disclosure of sources would prevent a specific instance of criminal conduct. The outcome of this case was that when ordered by the court to reveal his sources Jeremy Warner refused and was fined £20,000 for contempt. Applied to the context of counter-terrorism, criminal investigators will not be unduly troubled by the requirement to show a general deterrent effect upon those contemplating engagement in terrorist activity (given the latter term’s expanded definition). As such, the preferred definition of ‘necessity’should sound alarm bells for investigative journalists and their sources. (c)

‘the interests of justice’

It has been remarked that the ‘interests of justice’ exception is a ‘more elusive concept’ than the other exceptional categories.58 It has certainly generated more litigation than the other heads of exception. Initially, the phrase was interpreted by the House of Lords in a technical and narrow sense to mean the administration of justice in particular proceedings already in existence or, . . . a particular civil action which it is proposed to bring against a wrongdoer whose identity has not yet been ascertained.59

Subsequently however, a wider definition was preferred by the same court in X Ltd v Morgan-Grampian (Publishers) Ltd where it was said to encompass the ability of persons to exercise important legal rights and to protect themselves from serious legal wrongs whether or not resort to legal proceedings in a court of law will be necessary to attain these objectives. Thus, to take a very obvious example, if an employer of a large staff is suffering from grave damage from the activities of an unidentified disloyal servant, it is undoubtedly in the interest of justice that he should be able to identify him in order to terminate his contract of employment notwithstanding that no legal proceedings may be necessary to achieve that end.60

From the perspective of media organisations, this broadening has the adverse consequence of allowing a disclosure order to be made in circumstances where 58

See thus Arlidge, Eady & Smith, The Law of Contempt (3rd edn.) (2005, Sweet & Maxwell, London) para. 9–121. 59 Secretary of State for Defence v Guardian Newspapers [1985] AC 339, 350. 60 [1911] 1 AC 1, 43.

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legal proceedings are neither extant nor contemplated. Evident in both Lord Diplock’s original formulation and Lord Bridge’s subsequent expanded interpretation is the suggestion that the ‘interests of justice’ are exclusively concerned with the private law interests of parties. If this suggestion is accurate, the ability of counter-terrorist agencies to rely upon this exception would appear to be confined to cases where they act qua employers of the likely source. The speech of Lord Bridge of Harwich in X Ltd v Morgan-Grampian (Publishers) Ltd went on to give some important guidance to lower courts about how they should structure the use of discretion in s. 10 when deciding in a particular case whether to order disclosure or uphold the statutory presumption in favour of non-disclosure. Each case would fit somewhere on a wide spectrum. Illustrative factors that would tend to persuade the court that disclosure should be ordered included where (i) the party seeking disclosure could establish that his livelihood depended upon knowing the source’s identity; (ii) the information was obtained illegally and (iii) the material disclosed revealed no iniquity.61 Conversely, where what is sought to be protected is a minor proprietorial interest and/or the legitimate public interest in learning of the material is great, then the courts would be much less inclined to order disclosure. If the applicant seeking disclosure of a source’s identity has failed to exhaust reasonable alternative avenues of discovering the same, the courts will be less inclined to exercise their power to order disclosure. This will especially true where an injunction preventing the publication of further material from the source is in place.62

5.5.3

Human Rights Era Case Law

As is widely appreciated, s. 2 of the Human Rights Act 1998 requires domestic courts to ‘take account’ of relevant decisions of the European Court of Human Rights in Strasbourg. States that wish to justify restrictions upon expressive activity (a category into which disclosure and production orders fall) within para. 2 of Article 10, must first show that the restriction was ‘prescribed by law’. This has been interpreted as requiring that restrictions are both recognisable as law and of a sufficient quality such that it is constituted ‘law’ only when formulated with sufficient precision for the citizen (appropriately advised if need be) to forsee to a reasonable degree the consequences which certain actions may have and to regulate his conduct accordingly.63 Where a state seeks to restrict particularly vital Convention rights such as freedom of expression, the Court will examine closely the degree 61

A case where no iniquity was revealed and the case for ordering disclosure in order to discover the disloyal employee was accordingly stronger is Camelot Group Ltd v Centaur Communications [1999] QB 124. 62 Saunders v Punch [1998] 1 WLR 986; John v Express Newspapers Ltd [2000] 1 WLR 1931. 63 Sunday Times v UK (1979) 2 EHRR 245. See also Kruslin v France (1990) 12 EHRR 547.


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of precision exhibited by domestic rules.64 Then, it must be shown that the restriction is designed to advance a permitted purpose. The purposes for which expression may be legitimately interfered with are expressly stated in Article 10(2) and include the rights of others. Finally, the state must then establish that the interference is ‘necessary in a democratic society’ This phrase has been interpreted in a strict manner to require national authorities to show firstly that there is a pressing social need for the restriction in question, then that the derogation in question does not represent a disproportionate or excessive means of achieving a legitimate aim, and, lastly, that the reasons for the measure are both relevant and sufficient. In Observer & Guardian v UK the Court said that the exceptions to freedom of expression in particular must be narrowly interpreted and the necessity for (them) . . . convincingly established.65

The Court’s record in cases where national authorities have penalized journalists for failing to disclose the identity of their sources has been strongly supportive of media freedom and the flow of information into the public domain. Thus, domestic restrictions on Article 10 activities have tended to be strictly scrutinized. Take for example Goodwin v UK66 which was the Strasbourg sequel to X Ltd v MorganGrampian Ltd. Whilst the ‘interests of justice’ exception in section 10 of the Contempt of Court Act 1981 was held not to be lacking in the requisite degree of precision and the purpose behind the order was also deemed legitimate, the facts of the case did not show there to be sufficient reason for the order. Crucial to this finding was the fact that an injunction had already been issued to prevent publication of the confidential financial information in the national media which rendered the additional measure of a disclosure order unnecessary. In the words of the majority, ‘a vital component of the threat of damage to the company had thus been effectively neutralised by the injunction.’67 Seven years after Goodwin, the Court was confronted with what was considered to be an even more serious instance of national authorities’ interference with the confidentiality of journalists’ sources in Roemen and Schmit v Luxembourg.68 The first applicant, a journalist, had written an article in a daily newspaper entitled ‘Minister W. convicted of tax fraud’. The article revealed that the Minister had been fined 2,500 for tax evasion and commented that the conduct was especially shameful as the Minister was a person in the public eye and, as a political figure on the right, should have set an example. The Minister then made a formal criminal complaint alleging that the first applicant had made use of material obtained 64

(1993) 15 EHRR 244. (1992) 14 EHRR 153, 191. 66 (1996) 22 EHRR 123. 67 Ibid. at para. 46. The minority opinion dissented on this point finding that the injunction alone did not prevent further disclosures by the source directly to the company’s competitors or customers, or enable the company to bring proceedings against the source to recover the document and seek damages for losses already sustained. 68 Application No. 51772/99 (Judgment of February 25, 2003). 65

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through a breach of professional confidence by a person or persons unknown who in all likelihood were employed in the Land Registry and State Property Office.69 On the order of the investigating judge, searches were carried out at first applicant’s home and place of work and the office of his lawyer, the second applicant. At the latter location, a letter from the Director of the Land Registry and State Property Office to the Prime Minister was seized. The applicants’ challenges to the legality of the search warrants were dismissed in the domestic courts. At Strasbourg, the searches of the journalist’s home and work office (and those conducted at his lawyer’s office) were found to be in breach of Article 10.1. As to whether the interferences could be justified under Article 10.2, the Court found that the searches were prescribed by law70 and for a legitimate aim, namely for maintaining public order and preventing crime. Nonetheless, recalling that the protection of journalists’ sources was one of the founding blocks of media freedom in a democracy, the Court stated that incursions into the confidentiality of journalists’ sources must be subjected to close judicial scrutiny. In the present case, it was relevant that untried measures (including interviewing civil servants from the Department concerned) might have enabled the investigating judge to identify those responsible for the breach of professional confidence without the need to resort to a search of the journalist’s home and office. It followed that the search warrants which granted access to a wide range of documents on the premises constituted a disproportionate means of investigating criminal activity. In passing, the Court commented that the searches constituted an even graver interference with Article 10 rights than had occurred in Goodwin.71 More recently, the Strasbourg Court reaffirmed the importance of the allowing allegations of official misconduct being aired publicly in Voskuil v Netherlands.72 Following the discovery of a weapons cache after the flooding of a residential flat, official police reports suggested that the flooding had been fortuitous and accidental. Three men were then convicted of arms trafficking. Prior to their appeals, a journalist claiming to have been informed by a police source published a report that the flooding had been staged by the police. When the journalist refused to disclose his source, he was convicted and imprisoned by the Dutch courts for his noncooperation. The conviction was challenged in the European Court of Human Rights where the Dutch authorities were found to have violated the journalist’s Article 10 rights. The fairness of the appeal proceedings had not been compromised by the journalist’s refusal to disclose his sources. Moreover, although the Court understood the government’s concern about the damaging impact of false allegations of police dishonesty, it was vital in a democratic state under the rule of law for 69

Separate defamation proceedings brought by the Minister in respect of the newspaper article were unsuccessful. 70 As authorized by Articles 65 & 66 of the Code of Criminal Procedure. In respect of the search of the lawyer’s office, the procedures in section 35(3) of the Law of 10 August 1991 had been complied with. 71 The search at the lawyer’s office was also held to be in breach of Article 8. 72 [2008] EMLR 14.


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the issue of improper policing methods to be placed in the public domain. Significantly, the Court did insist upon the truthfulness of the article as a precondition of extending Article 10’s protective shield, nor it examine the motives of the source.73 The punitive measures that the Dutch authorities had invoked against the reporter would only discourage persons with true and accurate information about official wrongdoing from speaking to the media. The Dutch government had not shown an especially compelling set of reasons to override the public interest in maintaining the anonymity of the source.

5.5.4

Domestic Developments: Methodological Considerations

The strongly protective signals from Strasbourg have prompted domestic courts to consider how Article 10 can be given full effect when interpreting s. 10 of the 1981 Act. Thus, in Financial Services Ltd v Interbrew Lord Justice Sedley referred to a ‘juridical finger’ in the scales - meaning that claimants must convincingly establish the case for disclosure under the most careful scrutiny of the court.74 Disclosure would henceforth be ordered only where it is ‘necessary in a democratic society.’ That is, disclosure must meet a pressing social need and constitute a proportionate means of securing a legitimate aim. A pressing social need, Lord Justice Sedley noted, was not the same thing as an individual need, suggesting that some societal interest would have to be engaged on the side of any claim for disclosure. In truth however this requirement has not proved particularly exacting as the courts have tended to treat private or commercial interests as being embraced by the notion of ‘societal.’ Significantly, a disputed aspect of the post Human Rights Act litigation has centred upon the variability or otherwise of the public interest in the nondisclosure of sources. If, as has been argued by some, the public interest is a constant, it follows that the court’s inquiry must focus exclusively on whether an overriding public interest exists on the facts in favour of ordering disclosure. If, alternatively, the public interest in non-disclosure is variable, then, depending upon factors such as the source’s purpose, the level of legitimate public interest in learning about the disclosed material and any monetary gains made by the source, the actual ‘weight’ of the interest in non-disclosure becomes highly relevant. There is support for each approach in English law. In Financial Times Ltd & others v Interbrew SA the latter approach was taken. The source’s purpose about a takeover bid was said here to be ‘highly material’. If it was to expose wrongdoing, the source was entitled to a high degree of protection; if, by contrast, the purpose was to wreck legitimate commercial activity (whether for political motives or personal gain), the source would be less deserving of protection. On the facts in Interbrew, the case for protecting the source was weak. Apart 73

Ibid., at para. 70. [2002] 2 Lloyd’s Rep 229.

74

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from the fact that the purpose was to damage lawful commercial activity, the fact that the source had leaked misleading and false information was fatal to the newspaper’s ability to rely upon the statutory privilege. There was scant public interest in receiving false information.75 Aside from noting that the ‘pressing social need’ burden upon the party seeking disclosure did not prove to be an especially onerous requirement, another downside (from a media perspective) of Interbrew is that it enjoins the media to come to a view about the veracity of the source’s information before publishing. In these circumstances, self-censorship through nonpublication of a story might be the only practicable way for a media organisation to preserve the anonymity of a source. There is a danger here that claims which could be difficult to verify may not flow into the public domain. Although Interbrew predates the Strasbourg Court’s ruling in Voskuil v Netherlands, it is clear that the latter’s unwillingness to assess the accuracy of the source’s materials or consider the motivation behind disclosure offers greater protection to journalists and their sources. Sitting in the Court of Appeal in Ashworth76 Lord Justice Laws had however already articulated a rival and potentially more source-protective approach than that set out in Interbrew. The court’s proper concern in litigation which is governed by s. 10 Contempt of Court Act/Article 10 ECHR, Laws LJ contended, is the potential chilling effect in the future of ordering disclosure. It followed that the public interest in non-disclosure ought to be treated as a constant, whatever the merits/demerits of the particular publication and the conduct/motives of the source. This interest was in no way lessened and certainly not abrogated simply because the case is one in which the information actually disclosed is of no legitimate, objective public interest.77

The onus fell squarely upon the claimant to satisfy the court that an overriding case in the public interest for ordering disclosure has been made out. An indication that Laws LJ’s bold approach might be preferred to that of Sedley LJ was signalled by Lord Woolf CJ when Ashworth reached the House of Lords. His analysis of the necessity and proportionality of the order sought by Ashworth Security Hospital against The Daily Mirror concentrated upon public interest factors which underpinned the case for protecting patient confidentiality. It avoided possible weaknesses in arguments for protecting the source which were case-specific such as the facts that the intermediary was paid and that no real iniquity was revealed by the leak. A similar disinclination to evaluate the particular strengths and weaknesses of the case for protecting a source is also apparent in Ackroyd v Mersey Care NHS Trust.78

75

See further D Sandy. ‘False sources and the freedom of the press’ (2002) 152 NLJ 856. [2001] 1 WLR 515. 77 Ibid. 78 [2003] EWCA Civ 663. 76

5.6 Conclusion

5.5.5

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Jurisdictional Matters

Before a s. 10 disclosure order can be made however, an applicant must first establish that the journalist/publisher has become ‘involved’ albeit innocently in another’s wrongdoing.79 There is no need to show that the journalist/publisher is a ‘wrongdoer’.80 The purpose of the Norwich Pharmacal jurisdiction was to enable a wronged party to seek redress whether through court action or by other means (including terminating a contract of employment) This much had been established previously by British Steel Corporation v Granada Television Ltd.81 Nonetheless, it is quite possible to argue that, in cases of alleged breach of confidence, no ‘wrongdoing’ exists in the first place in those instances where the source’s actions may be justified as being in the public interest. If this argument is correct, it follows that the Norwich Pharamcal jurisdiction simply does not arise in cases of leaks made in the public interest. In practice however, this line of reasoning engages the court in exactly the sort of substantive questions that figure at the subsequent, discretionary stage of weighing the competing arguments behind protecting/identifying the source’s identity.

5.6

Conclusion

According to the UN Special Rapporteur on matters relating to the promotion and protection of the right to freedom of opinion and expression, the post September 11, 2001 period has witnessed increased pressures on journalists to reveal their sources of information or to hand over to authorities information the latter deem to be related to terrorism or terrorist activities82

It is perhaps important to note the reference to ‘increased pressures’. States have long resorted to demanding information from members of the media for reasons which extending well beyond the investigation of terrorist incidents. As for UK practice, criticism from international human rights monitoring machinery is not new. Mr Ligabo’s predecessor at the UN, Abid Hussain, was troubled by the fact that journalists covering the troubles in Northern Ireland had, on a number of

79

Ashworth Security Hospital v MGN [2002] 4 All ER 193. This argument which was put forward by the newspaper in Ashworth was described as a ‘fundamental misconception.’[2002] 4 All ER 193, 199. 81 [1981] AC 1096. 82 Civil and political rights, including the question of freedom of expression – Report of the Special Rapporteur Mr Ambeyi Ligabo pursuant to Commission resolution 2002/48 at para. 58. 80

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occasions, been ordered by the courts acting under Prevention of Terrorism legislation to hand over materials and name sources.83 The concern in this chapter has been to identify the panoply of coercive legal mechanisms that are available to the state and may be deployed against journalists and media organisations in the context of counter terrorism investigations. I have tried to show that journalists are faced with a range of overlapping devices that may be used to compel disclosure of their materials as well as the identities of their sources. It has not been the argument in this chapter that such disclosures should never be made. There are clearly exceptional and wholly compelling circumstances where an overriding public interest in public safety or national security may properly justify the handing over of names, documents and photographs. The cautionary note sounded by this chapter centres upon moves in domestic law towards routine compulsion in the on-going struggle against terrorism. It is plainly in the interests of a constitutional democracy which places a high premium upon both the flow of information into the public domain and the accountability of executive agencies that the police and security services do not benefit from an unduly lax set of hurdles when seeking disclosure. In this regard, the jurisprudence of the European Court of Human Rights offers some vital safeguards to the work of investigative journalists seeking to bring the intelligence and security services under a measure of scrutiny.

83

Civil and Political Rights, Including the Question of Freedom of Expression, Report submitted by Mr Abid Hussain, Special Rapporteur, in accordance with Commission on Human Rights Resolution 1999/ 36. United Nations Economic and Social Council, 11 February. Available electronically at http://www. unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/5c111c8bbfc8455d802568b9004ba0fc?Opendocument (February 2000). In para. 50 of his report Mr Hussain concluded that: ‘a journalist should not be used as a source for investigating authorities to obtain evidence from. . . (Journalists’) undertakings of confidentiality have to be absolute since otherwise the information would never have reached the public domain. For commentary, see D Miller, The Media, Propaganda and the Peace process in Ireland at http://www.medialens.org/articles/northern_ireland/dm_media_propaganda.html.

Chapter 6

The Disclosure of State Secrets and Dissent: Official Secrets, DA Notices and Freedom of Information

6.1

Introduction

The Government is trying to balance the need to inform people about issues that affect them, such as the terrorist threat to the UK, whilst still protecting the Agencies’ work. This is a difficult balance which requires further thought. Intelligence and Security Committee Annual Report 2004–20051

The state’s ability to protect defence and national security interests is rightly thought to require that intelligence and security activities be conducted under a certain degree of secrecy. Historically, the UK legislature has shielded state-held information by enacting wide-ranging offences to punish the disclosure of official information. Indeed, the loose and sometimes hurried drafting of official secrets legislation has typically provoked fears that the reach of the criminal law staunched the flow of information whose disclosure would have been justified in the public interest. Today, the struggle to bring security and intelligence services under public scrutiny and, thereby, informed democratic control by the electorate has never seemed so vital. Public distrust concerning the accuracy of security services’ intelligence material and the UK Government’s assessment of such intelligence pre-dates events connected with the Iraq War in 2003,2 but the Blair Government’s uncritical handling of intelligence material in period immediately prior to hostilities appeared only to add credence to such concerns. In brief, it will be recalled that the basis for the UK Government’s decision to go to war in Iraq was the claim that Iraq possessed weapons of mass destruction. That claim was based on faulty intelligence

1

Intelligence and Security Committee Annual Report 2004–2005, Cm 6510 at para. 88 (2005, HMSO, London). 2 Consider for example the case of Iraqi refugees deported before the 1991 Gulf War who were deemed to be security threats but were merely dissidents opposed to Saddam Hussein’s regime, see I Leigh, ‘The Gulf war deportations and the courts’ [1991] PL 331.


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6 The Disclosure of State Secrets and Dissent

and faulty assessments of intelligence. Parliament’s Intelligence and Security Committee noted in 2005 that the public ‘now questions the Agencies’ ability to produce accurate intelligence, which puts pressure on the Agencies to show how and when their intelligence was accurate and useful.’3 These doubts now percolate more broadly through to public discussion of security and intelligence matters. The flawed intelligence assessments and subsequent decision-making of police and security services at the time of the shooting of an innocent man Jean Charles de Menezes at Stockwell Underground Tube station in London has provided critics with further evidence of incompetence.4 As Feldman put it, The reliability of executive institutions (including central government, the security and intelligence services, and the police) as assessors of risk and security-related information has taken a number of bad knocks.5

At the same time, distrust has arguably made the Government and counter terrorist agencies more nervous in their respective dealings with the media, reinforcing tendencies to be more, not less, secretive thereby hindering any progression towards greater accountability. In this chapter, the operation of Official Secrets legislation and DA-Notices are examined with a view to ascertaining whether, despite Freedom of Information legislation, a culture of secrecy remains legally (and extralegally in the case of DA-Notices) intact with the result that informed democratic control over the security and intelligence services continues to be hampered.6 The suspicion of critics is that official claims of damage to ‘national security’ or ‘defence’ or ‘international relations’ (whether carried through to a full prosecution or not) mask what, in truth, is a determination to prevent the revelation of politically embarrassing information. In 1996, Sir Richard Scott produced his report into the collapsed prosecution of executives from Matrix Churchill – a military equipment supplier – on charges of unlawful exportation of arms to Iraq.7 He concluded that there was a consistent undervaluing by government of the public interest that full information should be made available to Parliament. In circumstances where disclosure might be politically or administratively inconvenient, the balance struck by the government comes down, time and again, against full disclosure.8

3

Intelligence and Security Committee at n.1 above, para. 87. For example, one of the operational errors occurred when images requested by the police of the real target Hussain Osman arrived 2 h after Mr de Menezes was shot dead. ‘De Menezes shot after suspect photos arrived late’ The Guardian (2008) November 10. 5 D Feldman, ‘Human rights, terrorism and risk: the roles of politicians and judges’ [2006] PL 364, 377. 6 A detailed account of the ancillary role played by the civil law of confidence in maintaining secrecy is not offered in this chapter. For discussion, see D Feldman Civil Liberties and Human Rights 2nd edn. (2002, OUP, Oxford) ch. 15. 7 Report of the Inquiry into Export of Defence Equipment and Dual-Use Goods to Iraq and Related Prosecutions HC 115-I (1995–96). 8 Ibid. at para. D1.165. 4

6.2 Official Secrets Legislation

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More than a decade after Scott, the suggestion is that political embarrassment continues to drive government responses to disclosures rather than a proportionate and measured assessment of the public interest. The ‘dissent’ that is featured in this chapter may take the form of a disclosure by a government employee or contractor (or former employee/contractor) made with a view to contradicting an official or governmental view. Equally, the revelation of official information may allow a third party such as journalist to publish informed analysis and criticism of government policy or enable others to do likewise.9 A recurrent and disappointing feature encountered in this section of materials is the lack of critical scrutiny brought by members of the legislature to bear on executive agencies’ pleas for the maintenance (or even enhancement) of secrecy levels. Remarkably, given the acknowledged state of public distrust, this chapter will show that members of Parliament have tended to endorse Home Office and the Ministry of Defence assertions in favour of maintaining secrecy. The extent to which the courts have ameliorated these tendencies is considered at various points in the text, as is the impact of Freedom of Information legislation.

6.2

Official Secrets Legislation

It is sometimes forgotten that the first Official Secrets Act passed by Parliament in 1889 criminalizing the ‘breach of official trust’ when official information was communicated to a third party required the prosecution to show that the disclosure ‘ought not, in the interest of the state or other public interest, to be communicated at that time . . .’10 This public interest defence was removed by the 1911 Act. In its place, the notorious ‘catch-all’ provisions of section 2(1) were inserted. Like its predecessor, the 1911 Act passed through its parliamentary stages with little opposition.11 Very occasionally however (and in the face of unambiguous judicial directions to the contrary), juries were seen to have applied their own version of a ‘public interest’ defence. The acquittal of Clive Ponting, a civil servant employed in the Ministry of Defence, is instructive in this regard. Ponting was prosecuted under s. 2(1) of the 1911 Act after disclosing information to an MP about the circumstances in which an Argentinian warship The General Belgrano was sunk during the Falklands War.12 Ponting’s account contradicted the Prime Minister Thatcher’s 9

On the link between freedom of information and modern democratic government, See Sir Anthony Mason, ‘The Relationship between Freedom of Expression and Freedom of Information’ in (eds. J Beatson & Y Cripps) Freedom of Expression and Freedom of Information: Essays in honour of Sir David Williams (2000, OUP, Oxford). 10 Official Secrets Act 1889, s. 2, and see O Gay, Official Secrecy SN/PC 2023 (2004, Parliament and Constitution Centre, House of Commons Library). 11 ATH Smith, ‘Security services, leaks and the public interest.(2002) 61 CLJ 514. The House of Commons’ stages of the Bill were completed within an hour. 12 R v Ponting [1985] Crim LR 318 and see C Ponting, The Right to Know – The inside story of the General Belgrano affair (1985, Sphere, London); R Norton-Taylor, The Ponting Affair (1985, Woolf, London); G Drewry ‘The Ponting Case: Leaking in the Public Interest’ [1985] PL 203. The trial judge McCowan J had ruled that that it was no defence to argue that the accused believed himself to be acting in the public interest by making the disclosure.

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account in important respects, particularly on the matter of whether the warship was a threat to UK forces at the time of its sinking. His subsequent acquittal is considered to be an example of a robust jury defying the trial judge’s technical instructions on the law, asserting instead a moral endorsement of the civil servant’s conduct and, ultimately, the right of the public to be given access to information in the public interest.13 Apart from Ponting’s case, other high profile prosecutions (Prime, Tisdall, and Bettany) and civil proceedings (such as those brought against the former MI5 agent Peter Wright and the publishers of his ‘Spycatcher’ memoirs) added to the general feeling that reform of this draconian (or what would now perhaps be termed ‘disproportionate’) law was now overdue.14 The Franks Committee had earlier called for s. 2 to be narrowed15 and, in 1987, a Private Members Bill sponsored by Richard Shepherd MP had unsuccessfully tried to reinsert a public interest defence into the law.16 The Official Secrets Act 1989 which replaces the discredited provisions of the 1911 Act sets out six enumerated categories of official information (security and intelligence; defence; international affairs; information where disclosure is likely to result in the commission of crime or impede prevention or detection of crime) whose disclosure is made an offence, albeit in significantly varying circumstances. Section 1 deals with security and intelligence matters and provides: A person who is or has been (a) a member of the security and intelligence services; or (b) a person notified that he is subject to the provisions of this subsection is guilty of an offence if without lawful authority he discloses any information, document or other article relating to security or intelligence which is or has been in his possession by virtue of his position as a member of any of those services or in the course of his work while the notification was in force.

Undoubtedly the most restrictive section of six enumerated categories, section 1 does not require the prosecution to show that the information, document etc was still confidential at the time of alleged disclosure or that it was damaging or harmful. Moreover a defendant cannot argue that disclosure was in the public interest.17 The leading case on s. 1 is the House of Lords decision in R v Shayler. The defendant had been charged with sending a number of classified documents to

13

Of course, the actual deliberative processes of the Ponting jury can never be known since, as with all other jury trials, section 8 of the Contempt of Court Act 1981 prevents disclosure of jury deliberations. 14 For an account of events leading up to the 1989 reforms, see H Fenwick & G Phillipson, Media Freedom and the Human Rights Act (2006, OUP, Oxford) pp. 923–27; S H Bailey, D J Harris & D C Ormerod, Civil Liberties: Cases, Materials and Commentary (5th edn.) (2009, OUP, Oxford) ch. 12. 15 Report of the Committee on s. 2 of the Official Secrets Act 1911 Cmnd 5104 (1972, HMSO, London). 16 Protection of Official Information Bill 1987. 17 See further H Fenwick & G Phillipson, Media Freedom and the Human Rights Act (2006, OUP, Oxford) pp. 928–48; S H Bailey, D J Harris & D C Ormerod, Civil Liberties: Cases, Materials and Commentary (5th edn.) (2009, OUP, Oxford) ch. 12. There is no equivalent of the ‘whistleblower’s defence’ that exists for other types of employee under the Public Interest Disclosure Act 1998, see s. 11.


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the Mail on Sunday.18 Shayler wanted to publicize his claim that MI6 had been involved in the planning of an assassination attempt on the life of the Libyan President Muammar Gadafy and also to reveal intelligence held about the IRA’s links to Libya. His lawyers argued that s. 1 was in breach of Article 10 of the European Convention on Human Rights. Specifically, it was claimed that the absolute nature of the s. 1 offence rendered it incompatible with Convention protection for freedom of expression. Accepting that Article 10 did apply to s. 1, the question for the House of Lords was whether the provision constituted a permitted restriction under Article 10(2). This entailed a three stage enquiry namely; was the restriction (i) ‘prescribed by law’; (ii) for a ‘legitimate purpose’ and (iii) proportionate. The plainly legal basis of the restriction and its legitimate purpose (national security, public safety) naturally directed the analytical focus of their Lordships’ thoughts towards the proportionality of s. 1. In assessing this question, the House of Lords noted that the ban on disclosures was far from absolute.19 A disgruntled employee such as Shayler could have lawfully made disclosures under s. 7 of the 1989 Act to a variety of persons. These included staff counsellors as well as in more serious cases of alleged criminal conduct the Director of Public Prosecutions, the Attorney General or the head of the Metropolitan Police. Other, political avenues existed where a concern arose in relation to alleged incompetence, wastefulness, maladministration or irregularity. Specialist Commissioners had been created under other legislation with specific jurisdiction to hear particular complaints.20 In other cases, disclosure could be made to one of several Commissioners set up by recent legislation. Finally, if none of these avenues offered a means of raising a grievance, the disgruntled employee (ex employee) could see official authorisation for disclosure under s. 7(3)(b). If this was unreasonably refused, then the refusal could be judicially reviewed. The House of Lords also concluded that the failure of s. 1 to include a requirement on the prosecution to show that the disclosure was damaging to national security did not by itself mean that the section violated Article 10 of the Convention. National law had not been shown to be a disproportionate means of maintaining state security. Significantly however, the House of Lords did not deny the suggestion made in the Court of Appeal that a defendant facing a s. 1 charge might avail him/herself of the general criminal law defence of necessity (sometimes referred to as ‘duress of circumstance’).21 This would be possible where the act done by the defendant was done ‘only to prevent an act of greater evil’ and the evil was directed ‘towards the defendant or . . . persons for whom he has responsibility’ 18

[2003] 1 AC 247. See also the case of Richard Tomlinson, another disaffected former intelligence officer, which is discussed in Bailey, Harris & Ormerod ibid. 19 Had their Lordships characterized the ban as absolute, it is doubtful whether s. 1 would have been deemed a proportionate means of safeguarding national security. 20 Interception of Communications Act 1985; Security Service Act 1989; Intelligence Services Act 1994. 21 On the distinction, if any, between ‘necessity’ and ‘duress of circumstance’ see different positions of Lord Woolf CJ in R v Shayler [2001] 1 WLR 2206 at paras. 52–63. and Brooke LJ in In re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147, at p. 236

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and the act (of disclosure) is ‘reasonable and proportionate to the evil to be avoided.22 Neither the Court of Appeal or the House of Lords believed that Shayler had come anywhere near satisfying these tests and so his argument was dismissed. Lord Woolf CJ in the Court of Appeal ventured that a spy might successfully invoke this defence if, having been kidnapped, he discloses secret information on being told that his wife/child will be killed unless disclosure is made.23 Subsequently, in the case of the discontinued proceedings against GCHQ employee Katharine Gun, the defence appears to have been accorded a wider scope, at least by the Crown Prosecution Service. Gun had been charged with a s. 1 offence arising from her disclosure of the request made by the Bush Administration that the United Kingdom engage in covert surveillance at the offices and homes of officials from UN member states whose support was thought to be crucial in obtaining a second Security Council resolution in favour of military action. Gun’s stated purpose in disclosing the request was to prevent the US and UK going to war without a lawfully obtained second UN Security Council resolution.24 The Crown Prosecution Service offered no evidence at the start of her trial. It is likely that the decision to discontinue proceedings owed much to the fact that Gun’s lawyers wanted (and more importantly the Attorney General opposed) disclosure of the Attorney General’s advice to the Blair government about the legality of the Iraq conflict.25 Gun’s lawyers claimed they needed this advice to make good the defence claim that her action was ‘necessary’ to avert an act of greater evil.26 Since Gun’s case, the Home Office has been pressing for the removal of the necessity defence, presumably to head off similar defence tactics in the future.27 With the exception of s. 4 (crime and special investigation powers),28 an essential element of liability for the offences of disclosing information concerning defence (s. 2), international relations (s. 3) and media disclosure of information 22

[2001] 1 WLR 2206 at para. 49. Ibid., at para. 67. According to Lord Woolf CJ Shayler fell into the category of ‘a disillusioned agent who claims that someone, somewhere, might one day suffer if he does not make such disclosures and that he has responsibility for all such persons, ie., the general public as a whole.’ Ibid. 24 O Burkeman & R Norton-Taylor ‘The spy who wouldn’t keep a secret’ (2004) The Guardian February 26; A Bailin, ‘The last cold war statute’ [2008] Crim L R 625, 627. 25 The Attorney General did however claim that the decision had been taken on purely legal as opposed to political grounds, HL Deb (2003–4) Vol. 658 cc.338–351. His detailed advice was published by the Blair Government after it was partially leaked, see further below. 26 O Gay, Official Secrecy SN/PC 2023 (2004, Parliament and Constitution Centre, House of Commons Library) at p. 10. Even so, it is hard to see how the intended target of the evil were persons whom Gun had ‘responsibility for’ in the sense articulated by Lord Woolf in Shayler. 27 Intelligence and Security Committee Intelligence and Security Committee Annual Report 2005– 2006, Cm 6864 at para. 31 (2006, HMSO, London). On the distinction, if any, between ‘necessity’ and ‘duress of circumstance’ see different positions of Lord Woolf CJ in R v Shayler [2001] 1 WLR 2206 at paras. 52–63. and Brooke LJ in In re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147, at p. 236. 28 The Government considered that the element of ‘damage’ was self-evident for the purposes of s. 4 where the information resulted in the commission of an offence or facilitated an escape from custody or impeded the prevention/detection of offences or the apprehension/prosecution of suspects. 23


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protected under the Act (s. 5) is that the disclosure must be ‘damaging’ and that the party making the disclosure knows or has reasonable cause to believe that disclosure would be damaging. When assessing whether the element of ‘damage’ is made out, public interest factors can clearly come into play as can the extent of any previous publication of the same information. As Bailin notes, the disclosure say of embarrassing aspects of diplomatic negotiations contrary to s. 3 of the 1989 Act could be said to be damaging in that other countries would be less inclined to enter sensitive discussions with UK officials in the future.29 The public interest here would seem to point to the need for enduring secrecy. Thus, if the UK Prime Minister had confidentially informed the US President that the UK Government would support regime change in Iraq whether legal or not, the inclusion of a public interest factor in any assessment of whether the leaking of the Prime Minister’s confidential support was ‘damaging’ would, according to Bailin, lend weight to the prosecution’s case.30 Nevertheless, it is legitimate to ask if public interest considerations would always be expected to bolster the claim that disclosure was ‘harmful’. It is perhaps not entirely fanciful to contemplate a situation in which a future Government proposes (along with an ally) to act in knowing breach of settled international human rights norms in what are claimed to be ‘unprecedented and exceptional circumstances’ and a civil servant wishes to make public this planned conduct by revealing confidential discussions between the UK and its ally. The strong public interest in learning of the proposed breach of human rights would argue forcefully for disclosure to be, on balance beneficial, notwithstanding the undoubted damage to diplomatic relations between the UK and its ally.31 There is some evidence arising from the failed prosecution of Derek Pasquill that some voices within the Foreign and Commonwealth Office at least may share this broader conception of the public interest. Pasquill, a civil servant working in the Foreign and Commonwealth Office, disclosed internal documents to a journalist after becoming alarmed by Foreign Office contacts with groups and individuals who openly supported suicide bombings and adopted or endorsed virulently anti-Western

29

‘The last cold war statute’ [2008] Crim L R 625, 627–8. See for (an unsurprising) endorsement of this view the White Paper preceding the 1989 Act, Reform of the Official Secrets Act 1911 Cm 408 (1988, HMSO, London) at para. 28 (cited by Bailin). 31 Against this view, it should be noted that s. 3(3) of the 1989 Act states that disclosure of a confidential document ‘may be sufficient’ to establish that disclosure is ‘damaging’ within the meaning of s. 3. It would be possible (though unlikely) for the courts to use the Human Rights Act to ‘read-down’ this section and acquit the party responsible for the disclosure where for example the government intends to behave unlawfully or is complicit in the illegal actions of others. Once the prosecution satisfies the court that military lives are being put at risk by the disclosure, the English courts seem unwilling to allow arguments about the illegality of military conduct to constitute a significant public interest counterweight in favour of disclosure, see on the conviction of David Keogh and Leo O’Connor ‘Two found guilty over Bush-Blair memo leak’ (2007) The Guardian, May 9. 30

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sentiments.32 His disclosures went further however and showed the extent to which the UK Government knew of the Bush Administration’s policy of extraordinary rendition. When the Foreign Office learnt of the disclosures, the Permanent UnderSecretary at the Foreign Office was reported by a source in The Observer newspaper to want the leaker ‘boiled in oil’.33 Pasquill was arrested. Two years later on the eve of his trial at the Old Bailey on six charges brought under s. 3 of the 1989 Act of causing damage to UK interests abroad, Pasquill learnt that the CPS had dropped all charges.34 Key to the collapse of the prosecution’s case was an internal Foreign Office email that revealed disagreement about the use of the Official Secrets Act against Pasquill. Some officials at least believed that no national security issues were raised by his leaks and that, if anything, a healthy public debate had thereby been prompted. The prosecution was only made aware of this email a month before the start of the trial whilst the defence learnt of its existence the day before the charges were dropped. In cases that have proceeded to jury trial, the courts can to invoke the interpretative duty under s. 3 of the Human Rights Act 1998 to ensure the defendant’s Convention rights are observed. In R v Keogh, a civil servant had passed a copy of a record of a meeting between Prime Minister Blair and President Bush concerning events in Falluja, Iraq in April 2004 to a political researcher working for an MP.35 The political researcher passed the document to the MP who employed him. The document was then returned to the Government. The civil servant was charged with a s. 2 Official Secrets Act 1989 offence and the researcher with a s. 5 offence. Both sections employ a reverse burden of proof mechanism that requires the defendant to show that his/her belief (that the disclosure did not relate to defence/would not be damaging) is a reasonable one. The Court of Appeal in Keogh held that, to be compatible with a defendant’s fair trial under the convention the prosecution had to show that the defendant had no reasonable belief that the disclosure did not relate to defence or that the disclosure would not be damaging. It was not for the defence to make good this claim at the start of the trial. The Lord 32

P Beaumont, ‘Secret email that freed the mole at the Foreign Office’ (2008) The Observer, January 13; R Norton-Taylor, ‘Secrets and lies’ (2008) The Guardian January 11. In his article, Norton-Taylor wrote that ‘Official secrecy seems more alive now than for decades. There is more than one case in which government lawyers are trying to suppress information – not to protect national security, but to shield the state from embarrassment or shame.’ 33 Ibid. The then Foreign Secretary Jack Straw MP was also reported to be keen for Pasquill to face the full force of the criminal law. His successor David Miliband MP concluded however that there was no real prospect of a conviction after the email came to light. 34 Section 3(1) makes it an offence to make without lawful authority a damaging disclosure of (a) any information, document or other article relating to international relations; or (b) any confidential information, document or other article which was obtained from a state other than the UK or an international organisation being information or a document or article which is or has been in his possession by virtue of his position as a Crown servant or government contractor.’ Damaging’ is defined in s. 3(2) to mean endangering the interests of UK abroad, or seriously obstructing the promotion or protection by the UK of those interests or endangering the safety of British citizens abroad. 35 [2007] EWCA Crim 528. The contents of the memorandum were not disclosed in open court. See further ‘Two found guilty over Bush-Blair memo leak’ (2007) The Guardian, May 9.

6.3 A Quaintly British Affair: Informal Regulation by DA Notices

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Chief Justice stated that it would be easier for the prosecution to show that a defendant had reasonable cause to believe that a disclosure would be likely to be damaging where the defendant was a civil servant or government contractor (s. 2) as opposed to a journalist (s. 5) since the prosecution would be able to access the employment records of civil servants and contractors.36 Notwithstanding the Court of Appeal’s ruling on this point, both the civil servant and the political researcher were later convicted at their trial of making damaging disclosures under the 1989 Act and sentenced to six and three month jail terms respectively.37 Whilst they may be high-profile, prosecutions under the 1989 Act are still relatively uncommon. The fact that the available evidence against a person may not turn out to be sufficient to go to trial has not however prevented heavy-handed approaches to the disclosure of information that involve the harassment and arrest of journalists and their sources. In 1998, two months after the hardback edition of The Irish War was published, the author Tony Geraghty was visited before dawn by six detectives attached to the Ministry of Defence Policy Agency. They had called at his remote Hertfordshire village to arrest the author under s. 5 of the Official Secrets Act 1989. In the Preface to the paperback edition of the book, Geraghty states that the officers ‘were exercised by references to electronic surveillance systems linked to computers.’38 He was later charged but proceedings were dropped39 as were related proceedings against Nigel Wylde a former bomb disposal officer in Northern Ireland. Wylde had been charged with disclosing official documents to Geraghty. The case against Wylde is reported to have collapsed when prosecutors learnt that an expert witness for the defence would testify that Geraghty’s book did not reveal any information that had not been already acquired by republican paramilitaries two decades previously.40

6.3

A Quaintly British Affair: Informal Regulation by DA Notices41

The key characteristics of the D Notice system are its lack of compulsion and its extra-legal status. To an extent, it is a relic of the culture of informality, personal contacts, and shared outlook which dominated Whitehall’s relations with the media in an earlier time.42 36

Ibid., at paras. 29 & 31. R Verkaik, ‘Two jailed for trying to leak details of Blair’s talks with Bush’ (2007) The Independent May 10; ‘Two found guilty over Bush-Blair memo leak’ (2007) The Guardian, May 9. 38 T Geraghty, The Irish War – The Military History of a Domestic Conflict (1998, HarperCollins Publishers, London) xiii–xiv. 39 HC Deb (1999–2000) Vol. 350, col. 464 (May 23). 40 ‘Secrets case against army officer dropped’ (2000) The Independent November 2. 41 For background, see D Fairley, ‘D Notices, Official Secrets and the Law’ (1990) 10 OJLS 430; L Lustgarten & I Leigh, In From the Cold – National Security and Parliamentary Democracy (1994, Clarendon Press, Oxford) at pp. 269–276; P Sadler, ‘Still keeping secrets? The DA-Notice system post 9/11’ (2007) 12 Communications Law 205; G Robertson & A Nicol, Media Law (5th ed.) (2008, Penguin, London) at pp. 656–7. 42 L Lustgarten & I Leigh ibid. at p. 270. 37

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Previously referred to as ‘D’ (defence) Notices, ‘DA’ (defence advisory) Notices are the product of the Defence Press and Broadcasting Advisory Committee (DPBAC) which is staffed by Ministry of Defence officials, representatives of the armed forces, and the print and broadcast media.43 The stated purpose of the DPBAC is to prevent the inadvertent public disclosure of information that would compromise UK military and intelligence operations and method, or put at risk the safety of those involved in such operations, or lead to attacks that would damage the critical national infrastructure and/or endanger lives.44

As Lustgarten and Leigh have shown, the origins of the DPBAC may be traced back to the Edwardian era when patriotic newspaper proprietors drawn from societal elites enjoyed a closer relationship with leading political figures and were willing to exercise self-censorship in times of national crisis.45 The system developed at a time when the idea of full democratic accountability and informed self-government by all the people would doubtless have been dismissed as Bolshevik nonsense. As the Australian High Court in Lange v Australian Broadcasting Corporation observed in 1997 however, the twentieth century witnessed tremendous social change. Increased adult literacy, mass universal suffrage and the growth of mass communications systems all combined to make redundant earlier, elitist assumptions about who was ‘fit’ to exercise scrutiny and control over whom.46 Had DPBAC not somehow endured from the era before the modern democratic state, it is highly doubtful that a proposal today to create a similarly designed and secretive media regulator would be taken at all seriously. Aside from notable individual incidents of censorship such as the prohibition imposed during the Cold War on reporting the details of the trial of the Soviet agent George Blake,47 perhaps the most disturbing feature of the first 50 years of its activities is that Parliament did not even know of the existence of the D Notice system.48 Confusion also existed about the relationship between the D Notice system and Official Secrets laws. In 1971 a civil servant, the editor of the Sunday Telegraph and a freelance journalist were all charged under s. 2 of the Official 43

Some journalist and publishers have however refused to participate in DPBAC including J Bloch & P Fitzgerald authors of British Intelligence and Covert Action (1983, Brandon, Ireland). 44 http://www.dnotice.org.uk/ 45 In the nineteenth century, the press appears to have been fairly non-compliant, see Sadler at n.41 above for instances during the Peninsular, Crimean and Boer Wars where newspapers revealed military information that were considered to be helpful to the enemy. Matters seem to have come to a head in 1911 when the Morning Post published details of coastal defences. The following year a Joint Standing Committee was formed with a membership drawn from the Admiralty, War Office and the Press. 46 (1997) 189 CLR 520. The High Court drew upon these changed societal conditions in support of the expansion of the qualified privilege defence in defamation actions. 47 C Pincher, Their Trade is Treachery (1981, Sidgwick and Jackson, London); P Sadler, ‘Still keeping secrets? The DA-Notice system post 9/11’ (2007) 12 Communications Law 205, 206. 48 HC Debs. (1960–61) Vol. 640, cols. 636–8.


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Secrets Act 1911 in connection with the disclosure of a confidential, official assessment of Nigeria. The editor had earlier been advised by the DPBAC Secretary that, as the communication did not relate to British forces or British defence matters, no D Notice issue arose. The accused were all later acquitted on the OSA 1911 charges.49 Nonetheless, an uncertain impression was created in respect of two points. First, the Ministry of Defence’s assessment of defence and national security matters did not always coincide with that of the Attorney General’s Office and, second, (and following from the first point) that editors and journalists could not henceforth assume that the decision not to issue a D Notice guaranteed immunity from subsequent criminal proceedings under the Official Secrets Act. Severe criticism among sections of the media led to a House of Commons Select Committee review in 1980.50 The Select Committee on Defence criticised the system for the secrecy attaching to the existence and contents of some Notices and for appearing to limit disproportionately discussion of defence matters through other, vaguely drafted Notices.51 The Committee rejected however calls for abolition, preferring an amended and more open system of regulation by a DPBAC52 in which those sections of the media with an active interest in reporting defence matters were more fully represented.53 These reforms left unaddressed the uncertain relationship between official secrets law and D notices. Events bearing a close similarity with the Sunday Telegraph case occurred in 1987 at a time when Spycatcher – the published memoirs of a former MI5 agent Peter Wright – was occupying Government lawyers and the civil courts.54 The BBC intended to broadcast a series about security matters and democratic oversight entitled My Country Right or Wrong? and sought the advice of the Committee in advance of broadcasting. It was told that no advice was necessary and that the programmes could go ahead. Despite this, the

49 R v Aitken and Others (1971) The Times February 4; D Fairley, ‘D Notices, Official Secrets and the Law’ (1990) 10 OJLS 430, 432; The D Notice System Third Report from the Defence Committee (1979–80) HC 733, at paras. 7–8. 50 Other sections of the media were less hostile The Editor of the Sunday Mirror described the system as ‘quaintly British’. This apparent affection owed more perhaps to fears about the severe penal sanctions to which journalists and editors were then subject under the ‘catch-all’ provisions of s. 2 of the Official Secrets Act 1911. 51 The D Notice System Third Report from the Defence Committee (1979–80) HC 733. According to this report, D Notices in period before 1970 had been more detailed, see para. 9. 52 Ibid., at para. 38. The somewhat tentative suggestion from the Defence Committee was that the system should remain until a ‘fundamental review of the operation of the Official Secrets Acts’ had taken place. 53 Ibid., at para. 35. 54 For an account of the litigation generated by Spycatcher see inter alia, E. Barendt, ‘‘Spycatcher and Freedom of Speech’’ [1989] PL 204; Y. Cripps, ‘Breaches of Copyright and Confidence: The Spycatcher Effect’ [1989] PL 13; N Walker, ‘Spycatcher’s Scottish sequel’ [1990] PL 354. For more detailed discussion of the breach of confidence doctrine as it applies to official information, see H Fenwick & G Phillipson, Media Freedom and the Human Rights Act (2006, OUP, Oxford) ch. 19; S H Bailey, D J Harris & D C Ormerod, Civil Liberties: Cases, Materials and Commentary (5th edn.) (2009, OUP, Oxford) ch. 12.

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Thatcher Government sought and obtained an injunction to prevent the series being broadcast on the ground that the programme contained remarks by former security service personnel that would, in all likelihood, breach the law of confidentiality.55 Later, the injunction was lifted but, having incurred significant legal expenses in defending the legal action, the BBC no longer wished to broadcast the programmes and it was left to Channel 4 finally to air the material in 1991. Today, the DA Notice system remains a controversial extra-legal regulatory mechanism affecting the way in which defence and counter terrorism news stories are presented to the public. Despite a lessening of the almost total secrecy in which the system operated in the past,56 the DPBAC still operates in a comparatively clandestine manner outside the reach of the Freedom of Information Act. DPBAC refuses for example to discuss publicly the terms of case-specific advice given to individuals. Understandably, mainstream media news organisations are unlikely for the most part to want to breach the confidentiality of this arrangement since it is likely to jeopardize working relationships with the Ministry of Defence and the armed forces in the future. Although in theory subject to parliamentary review, criticism by our elected representatives of the expression-inhibiting aspects of DPBAC’s work is hard to locate. Somewhat paradoxically given the fundamental values underpinning the democratic state that the military, intelligence and police services are supposed to be defending, parliamentary review in the post September 11, 2001 period has tended instead to focus upon the threat to lives and damage to counter intelligence operations posed by ‘loose talk’. Regrettably, an awareness of the dangers to informed self-government of unaccountable and secretive defence, intelligence and policing services is more difficult to discern. This stance chimes with a theme in the UK Government’s policymaking identified in Chap. 1, namely that the ‘rules of the game’ changed on September 11, 2001 and that the ‘scales of liberty and security’ must be re-calibrated to bring about greater public safety. I argued in Chap. 1 however that such an approach fundamentally misconceived the nature of the liberal democratic state. To recapitulate, what makes rights-based liberal democracies distinct is that, absent an exceptional and overwhelming threat to the whole of the social order, some loss of security is accepted as the price for allowing individuals to enjoy individual rights (including the right to freedom of expression). The liberal state accepts that it cannot be totally secure from its enemies. The misconceived elevation of security concerns to a position of equal importance with core democratic rights demands that, when threats to security rise, rights claims must be commensurately cut back even though the state’s existence is not substantially threatened. The absence of a vigorous parliamentary challenge to the dominant metaphor of ‘balance’ between security/rights may help to explain why, days after the Al-Qaeda attacks on the World Trade Centre in New York, the Secretary to the Committee felt able to write newspaper editors and broadcasters requesting that there

55

D Fairley, ‘D Notices, Official Secrets and the Law’ (1990) 10 OJLS 430. The membership of the DPBAC is now known and it does publish minutes of its meetings on its website.

56


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be no speculation regarding a possible military response in Afghanistan.57 Some critics describe the conduct of DPBAC as ‘a form of censorship by wink and nudge . . .’58 and are astonished that newspaper editors continue to place reliance (thereby conferring credibility) on the system. Others favouring more transparent legal controls might argue that, in a highly competitive 24 hour news culture, the pressure on media organisations’ to beat their rivals to the latest ‘breaking’ news event places the voluntary system under a strain that it was never intended to (and cannot) bear. Recently indeed, direct media challenges to the DPBAC’s authority alongside other alleged leaks of counter terrorist operations have led to calls from a parliamentary committee for even tighter controls on media reports. Before examining this claim in more detail, more needs to be said about the current system of extra-legal restriction. Five standing DA Notices cover the following subject areas: military operations, plans and capabilities; nuclear & non-nuclear weapons and equipment; ciphers and secure communications; sensitive installations & home addresses; UK security & intelligence services and special services. The DPBAC Secretary is a high-ranking military officer and is available for consultation as to the application of the generally-worded Notices to specific sets of circumstances. Sometimes, it may be necessary on an ad hoc basis to issue a specific DA notice. A draft of this Notice is usually agreed between the Secretary and the Government Department concerned before being circulated to the Committee members for approval. If this approval is forthcoming, the DA Notice will then be issued. In its published guidance on counter terrorism matters, DPBAC has stated that Public discussion of the United Kingdom’s defence and counter-terrorist policy and overall strategy does not impose a threat to national security and is welcomed by Government. It is important however that such discussion should not disclose details which could damage national security. The DA-Notice System is a means of providing advice and guidance to the media about defence and counter-terrorist information the publication of which would be damaging to national security.59

Standing DA-Notice 5 (UK Security & Intelligence Services Special Services) for example ‘requests’ that, unless there has been prior wide disclosure or discussion, details of covert and counter terrorist operations, personnel (names, addresses, photographs and family details) or their targets should not be revealed. The rationale behind the request is that such information would prove useful to terrorists. Rather starkly, DA-Notice 5 states ‘Publicity about an operation which is in train finishes it.’ Information concerning a completed information ‘may well deny the opportunity for further exploitation of a capability which is unique against hostile and illegal activity.’ In February 2007, the Director General of MI5 was reportedly furious about the advance information supplied to journalists

57

J Hodgson, ‘Journalists warned not to speculate on military action’ The Guardian (2001) September 26. 58 G Robertson & A Nicol, Media Law (5th ed.) (2008, Penguin, London) at p. 657 59 General Introduction to DA-Notices

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concerning ‘Operation Gamble’. The Security Service and local police officers were conducting an operation against a Birmingham-based Islamic plot to kidnap and behead a British Muslim soldier.60 The advance disclosure allowed media representatives to be in situ as police officers came to arrest suspects at a house in Birmingham. Somewhat embarrassingly, it appears that the source of the leak could well have been close to the Government. Civil servants at the Home Office were among those suspected of the disclosure.61 Doing nothing to dispel such an impression, Dame Eliza Manningham-Buller the then head of MI5 declared herself to be ‘very angry (about the leak), but it is not clear who we should be angry with . . .’62 The Assistant Chief Constable of West Midlands Police was also said to be unhappy at the way events had been reported.63 A subsequent investigation by Scotland Yard failed to identify the culprit(s). Apart from disruption to covert and counter terrorist investigations, official concern was directed towards the more sensationalist end of news coverage. Specifically, the prejudicial impact of this material (some of which was said by counter terrorist officials to be inaccurate) on future criminal trials and the alienating effect on the local Muslim community were highlighted.64 This incident prompted the Intelligence and Security Committee’s conclusion that The current system for handling national security information through D Notices, and the Agencies relationships with the media more generally, is not working as it effectively as it might and this is putting lives at risk.65

The Committee suggested that a more effective system was needed to safeguard the work of the intelligence agencies and criminal prosecutions whilst allowing the media to report on ‘important matters of public interest.’ If this sounded a potentially ominous note for the DA-Notice system, DPBAC supporters will have been happier with the Government’s published response which appeared to commit to a strengthened DA-Notice system, rather than its wholesale abandonment.66 Precisely what form any ‘strengthening’ will take is not clear at the time of writing. At bottom however, if the system remains on an extra-legal footing and beyond the reach of the heavily qualified right to freedom of information in the UK, fundamental questions will remain about the system’s very legitimacy as well as its

60

‘How al-Qaeda ‘tried to bring Baghdad to Birmingham’’ The Times (2007) February 1. Four of the six defendants charged with various anti-terrorism offences pleaded guilty at Leicester Crown Court in January 2008. 61 K Sengupta, ‘MPs seek to censor the media’ The Independent (2008) November 10. 62 Intelligence and Security Committee Annual Report 2006–2007 Cm 7299 (2008, HMSO, London) at para. 70. 63 S Malik, ‘Birmingham: the questions remain’ New Statesman (2007) February 12. 64 P Wilby, ‘A law unto themselves’ The Guardian (2007) February 5; S Malik, ‘Birmingham: the questions remain’ New Statesman (2007) February 12. 65 Intelligence and Security Committee Annual Report 2006–2007, Cm 7299 at para. 72 (2007, HMSO, London). 66 Government Response to the Intelligence and Security Committee’s Annual Report 2006–2007, Cm 7300 at M (2008, HMSO, London).


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effectiveness, especially in an increasingly globalized and electronic media market. The DPBAC cannot hope to influence news coverage of UK intelligence and security matters in publications physically based (or electronically uploaded from) beyond these shores. It is unlikely for example that there will be no recurrence of events in 1990 immediately prior to the Second Gulf War when a briefcase containing an RAF laptop computer and documents was stolen.67 The stolen items contained information about the deployment of British troops. The UK Government was forced to admit the theft of the briefcase but issued a D Notice in December 1990 which prevented the media from mentioning the stolen laptop. Initially newspaper editors and broadcasters complied. This enabled ministers and civil servants to issue a false story that the ‘lost’ information had been recovered. The true story was however printed by an Irish newspaper and, shortly after The Sun indicated that it would tell the truth about the still missing laptop, the D Notice was curiously lifted. Aside from aiding ministerial deceit, DA-Notices remain more generally a threat to the ideal of informed self-government. During the Iraq conflict, shortages of troop equipment have been directly implicated in the deaths of a number of service personnel. Gordon Gentle, a 19 year old serving with the Royal Highland Fusiliers in Basra, was killed in June 2004 when his vehicle was blown up by a roadside bomb. At the inquest into his death, the assistant deputy coroner for Oxfordshire stated that bomb-disabling equipment which ought to have been fitted to Fusilier Gentle’s vehicle would probably have saved his life. At the time of Gentle’s death, this equipment was available at a location less than one mile from the Basra base of the Royal Fusiliers leading the coroner to conclude that the army’s supply system was ‘chaotic and lacking in clarity.’68 Since his death (but prior to the coroner’s inquest), the family of Gordon Gentle led a campaign to bring greater scrutiny to bear on the issue of equipment supplied by Ministry of Defence to troops in Iraq. According to reports in the mainstream media, a DA Notice was issued shortly after a press conference organised by Rose Gentle, the deceased’s mother. The Notice stated that, following the press conference, certain issues relating to counter measures (electronic jamming devices) should not be discussed in other than ‘general terms.’69 News editors were told to remind their staff of the risks posed to UK military personnel by detailed discussion. In the light of the coroner’s published criticism, it is not clear whether the DA-Notice is extant or has been annulled. The overall conclusion to be drawn from the Gentle DA-Notice case appears to be that official efforts continue to frustrate legitimate demands for political accountability. In a related development that hints at the Government’s 67

The incident is discussed in G Robertson & A Nicol, Media Law (4th edn.) (2002, Penguin, London) at pp. 578–579. 68 K Sengupta, ‘Supply chain ‘chaos’ to blame for death of Iraq soldier’ The Independent (2007) November 8. Sadly, the adequacy of equipment supplied to troops killed in Iraq has been criticised in other coroners’ inquests, see ‘Deaths put spotlight on equipment’ BBC website http://news.bbc. co.uk/1/hi/uk/7675948.stm 69 J Thynne, ‘MoD vs the press: on the front line in Iraq’s other war’ The Independent on Sunday (2004) November 14.

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embarrassment over Coroners’ proceedings concerning the deaths of UK soldiers in Iraq and Afghanistan, the Government has set out the provisions of the Coroners and Justice Bill. This Bill proposes to give the Secretary of State a power to remove certain types of investigation from Coroners Courts proceedings upon certification by the Minister that Coroner’s court proceedings ‘will concern or involve a matter that should not be made public for reasons set out in subsection (2).’70 This subsection lists the following reasons for removing proceedings from coroners: (i) national security; (ii) the relationship between the United Kingdom and another country; (iii) the prevention/detection of crime; (iv) the safety of a witness or other person; (v) otherwise to prevent real harm to the public interest. Upon certification, the proceedings will be conducted by a High Court judge without a jury and in private.71 These reforms are problematic on two broad fronts. First, serious question marks can be raised about the Brown Government’s motives in removing coroners from such cases. Second, the proposed width of the Minister’s powers to prevent unfavourable publicity resulting from the death of UK military personnel will surely result in the closure of a number of proceedings away from deserved public scrutiny.

6.4

Freedom of Information72

The ingrained and excessive secrecy of British political culture that has been evident in much of the above discussion poses a severe challenge to the ideal of open government. A major opportunity to bring greater light to bear on the workings of the state did arise in the mid 1990’s when the case for heightened transparency gained considerable momentum.73 Apart from the Scott Report referred to earlier, Lord Nolan’s Standards in Public Life inquiry looked at allegations (some of them proven) about corruption among public office holders.74 The McPherson Report into the murder of the black teenager Stephen Lawrence argued strongly that policing services should be subjected to freedom of information legislation without 70

Coroners and Justice Bill, cl. 11(1). Ibid., at cl. 11(3). 72 On background arguments surrounding the ‘right to know’ see S Sedley, ‘Information as Human Right’ in (eds. J Beatson & Y Cripps) Freedom of Expression and Freedom of Information: Essays in honour of Sir David Williams (2000, OUP, Oxford). Ronald Dworkin has rejected the idea that access to officially held information is a ‘right’, arguing instead that it is a policy concern liable to be overridden by competing policy interests that point towards non-disclosure such as national security, see A Matter of Principle (1986, Clarendon Press, Oxford) at pp. 387–389. 73 For a useful account of the Act, see J Wadham & J Griffiths, Blackstone’s Guide to The Freedom of Information Act 2000 (2nd edn.) (2005, OUP, Oxford) at pp. 31–34. See also P Birkinshaw, Freedom of information: the law, the practice and the ideal 3rd edn. (2001, Butterworths, London). 74 Lord Nolan, First Report of the Committee on Standards in Public Life Cm 2850 (1995, HMSO, London); and see also Second Report of the Committee on Standards in Public Life Cm 3270 (1996, HMSO, London); Third Report of the Committee on Standards in Public Life Cm 3702 (1997, HMSO, London). 71

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the benefit of a class exemption.75 The Phillips inquiry into the cattle disease BSE which had crossed over to humans concluded that Whitehall officials at the Ministry of Agriculture, Farming and Fisheries had engaged in a cover up over a six month period in the late 1980’s.76 Concededly, the Major Government had introduced the Code of Practice of Access to Government Information in 1993.77 However the Code lacked any formal legal status and its impact appears to have been limited. In 2000, the Parliamentary Commissioner for Administration criticised the tendency elsewhere in Whitehall ‘to assume automatically that no information can be released.’78 The election of the Labour Government in 1997 provided the critical turning point in moves towards a legally enforceable ‘right to know’. The boldness of the proposals contained in the White Paper Your Right to Know proved too radical for the Government in the final analysis and so the resultant Bill contained more exempting provisions and weaker enforcement powers than had originally been envisaged.79

6.4.1

FOIA 2000

In what follows, a brief synopsis of the Freedom of Information Act 2000 is provided.80 The central focus of this section of materials will however concern the extent to which materials relating to intelligence, security and defence have been opened up under the 2000 Act. Despite evident and well-documented weaknesses, it would be wrong to dismiss the Act as having failed in its entirety to shed light on the operation of government. Ironically, one of the most frustrating features of encountered by early researchers working in this area was the infrequent updating of the Information Commissioner’s website. One survey in 2006 noted that there was no publication of the list of cases under investigation nor complete details of resolved cases.81 75

Sir William McPherson of Cluny, The Stephen Lawrence Inquiry Cm 4262-I (1998, HMSO, London) at para. 46.32. 76 Lord Phillips of Worth Matravers, The BSE Inquiry: The Report (2000, HMSO, London) at Vol 1. Findings and Conclusions 3 The early years 1986–1988 para, 178 ‘We can see why there were concerns that reports of a possible BSE outbreak in cattle might harm the industry and, in particular, the export market. But this did not justify suppression of information needed if disease surveillance was to operate effectively.’ 77 Cmnd 2290 (1993, HMSO, London). 78 Annual Report (1999–2000) HC 21 at p. 46. 79 Your Right to Know Cm 3818 (1997, HMSO, London). For criticism of the Bill’s deficiencies, see S Palmer, ‘Freedom of Information: the New Proposals’ in (eds. J Beatson & Y Cripps) Freedom of Expression and Freedom of Information: Essays in honour of Sir David Williams (2000, OUP, Oxford). 80 See for a fuller account J Wadham & J Griffiths, Blackstone’s Guide to The Freedom of Information Act 2000 (2nd edn.) (2005, OUP, Oxford). Another excellent resource is the website of the Campaign for Freedom of Information at http://www.cfoi.org.uk/ 81 M Liu, ‘Transparent government and the Freedom of Information Act 2000’ (2006) Cov L J 18.

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Section 1 of the Act imposes a duty of disclosure on designated public authorities upon receipt of a written application. Public authorities must inform the applicant in writing whether they hold the information requested. If the information is held, it must be communicated to the applicant usually within 20 working days, although this period can be extended if one of the Act’s non-absolute exemptions apply so that the authority can ‘balance’ the competing public interests in favour and against disclosure. Although the Act supplies few clues as to how the exercise of balancing is to be conducted, the Information Commissioner has provided nonstatutory advice in the form of Guidance Notes which will be returned to at various stages below.82 Complaints about non-compliance with access requests are heard by the Information Commissioner. A complainant can ask the Information Commissioner for a ‘Decision Notice’ in respect of a wrongful decision under FOIA.83 Where an authority subsequently fails to comply with a ‘Decision Notice’, the Information Commissioner may then issue an ‘Enforcement Notice’ to require the public authority to comply with its FOIA duties.84 Controversially, a power of ministerial override is conferred by s. 53 of FOIA whereby government departments and certain designated public authorities are entitled to refuse to comply with the terms of an ‘Enforcement Notice’ and maintain non-disclosure by means of a certificate signed by a Cabinet member or Law Officer and passed to the Information Commissioner.85 There are a number of exemptions to the s. 1 duty of disclosure which, if applicable, mean that the public authority is neither under a duty to confirm/deny that it is holding information or, where the information is held, to communicate it. Absolute exemptions that are relevant to this chapter include under s. 23 information ‘supplied or relating to 12 listed bodies dealing with security matters. This list includes the Security Service, Secret Intelligence Service, Government Communications HQ, special forces. These bodies are not public authorities under the Act and thus owe no duties under s. 1.86 The questionable assumption behind the class exemption for security matters is that it can never be in the public interest for security matters to be released into the public domain.87 The Act also creates out non-absolute (or qualified) exemptions in which the public authority comes under a duty to balance the public interest in disclosure

82

Ultimately, it would be for the Information Tribunal and the courts under Part V of the 2000 Act to decide whether this guidance does accurately reflect the law. 83 S. 50(1), FOIA. 84 S. 52, FOIA. 85 S. 53, FOIA. By way of assuaging its critics, the Government asserted that s. 53 overrides would only be used in extremis. See HC Debs (1999–2000) Vol. 347. cols. 922–925. 86 Another absolute exemption exists under s. 21 of the Act where the information requested is available by other means. 87 Having resisted claims to insert a public interest defence into s. 1 of the Official Secrets Act, it was wholly unlikely that the FOIA 2000 would allow such claims to be included under the access provisions of the 2000 Act.


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against the public interest in maintaining the exemption. In conducting the balancing exercise, the public authority is expected to presume, at the outset of this exercise and consistently with s. 1(1) of the Act, that disclosure is in general desirable. Persons who are dissatisfied with the way an application has been dealt with may complain to the Information Commissioner who has the power to require the public authority to comply with access rights conferred under Part 1 of the Act.88 Under s. 24 information that relates to national security but does not fall within the absolute exemption in s. 23 is subject to the balancing exercise. The same applies to defence information which is exempt from disclosure where disclosure ‘would, or would be likely to, prejudice’ the defence of the British islands/colonies or the capability, effectiveness or security of the armed forces of the Crown.89 The duty to confirm/deny does not arise either if or to the extent that compliance with the duty would be likely to prejudice those matters.90 The test of prejudice compares unfavourably with the equivalent test in the Scottish legislation which refers to ‘substantial prejudice.’91 Likewise information concerning international relations is exempt from the duty to confirm/deny that the information is held or exempt from the duty to disclose under s. 27 where this ‘would or would be likely to, prejudice (a) relations between the United Kingdom and any other State; (b) relations between the United Kingdom and any international organisation or international court; (c) the interests of the United Kingdom abroad; (d) the promotion or protection by the United Kingdom of its interests abroad.’92

Where prejudice to international relations is likely, public authorities may not however withhold the information requested if the public interest in disclosure outweighs the public interest in withholding the same. Guidance on the assessment of prejudice and public interest matters has been forthcoming from the Information Commissioner in Awareness Guidance notes. Time and again, these stress the importance of a case by case approach in which the need to identify specific harms is usefully emphasised. In the matter of defence information for example Awareness Guidance No.10 states that, when assessing the likelihood of prejudice, a public authority must identify the specific harm that may be caused.

88

See further ss. 50–56 of FOIA 2000. S. 26(1) FOIA 2000. 90 Ibid. s. 26(3). 91 Freedom of Information (Scotland) Act 2002, s. 31. 92 FOIA 2000, s. 27(1). Note the overlapping provisions of s. 27(2) of the same Act regarding confidential information obtained from other states or international bodies. In respect of s. 27(2) information, there is need for the public authority to show that prejudice of any sort will be a consequence of disclosure. 89

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For instance the disclosure of information about the reliability of a piece of military equipment might be covered by the exemption if it would enable an enemy to sabotage that equipment but not if the weakness was impossible to exploit or if it were one that was impossible to conceal.93

According to same Awareness Guidance, factors arguing for greater disclosure of information that is held about the reliability of military equipment include, where military lives are lost, (the) enhanced accountability, improvements to equipment and planning, and allowing individuals to challenge the basis of decisions affecting them personally.

Such cases will thus require a particularized assessment of where the greater public interest lies. Put crudely, it might be ventured that the case for disclosure is stronger when more rather fewer military lives are put at risk by allegedly faulty equipment since disclosure in these circumstances is likely to bring greater scrutiny to bear on the Ministry of Defence and as well as being more likely to generate pressure to make any necessary equipment improvements. It should also follow that where the refusal to disclose is connected to a perceived risk of political embarrassment, this will not be a relevant reason for non-disclosure. As regards the international relations exemption, Awareness Guidance No.14 notes that the notion of prejudice is a dynamic one that will alter according the varying circumstances that affect international relations and UK interests abroad. Deterioration in the relationship between the UK and another state would be one relevant form of ‘prejudice’ as would adverse consequences for UK citizens living in that state or UK businesses located there. Against these harms, appropriate ‘weight’ would have to be accorded to the public interest in understanding and participating in current public debates and in promoting the accountability and transparency of government bodies. It could be argued therefore, that whilst disclosure of the UK’s role in assisting the Bush Administration’s ‘rendition flights’ would undoubtedly prejudice relations with an important ally, UK electors have a legitimate and arguably overriding interest in knowing whether the UK has facilitated the US policy of ‘extraordinary rendition’ for interrogation purposes.94 As a further refinement, it could plausibly be suggested that relations with the United States under the Presidency of the Democrat Barack Obama will now be less threatened by such disclosures concerning the Bush administration. Two further and closely related areas of officially held information regulated by the 2000 Act are the formulation/development of government policy, ministerial communications and advice of the law officers (s. 35) and the effective conduct of public affairs (s. 36). Both are qualified exemptions requiring an assessment of the weight of competing interests behind disclosure and non-disclosure. In relation to s. 35, there must a balancing of the inhibiting effect of disclosure upon candid discussion within government on the one hand (the denial of ‘private thinking 93

ICO, Freedom of Information Act Awareness Guidance No.10 (Version 1) April 2006. J Parry, ‘The Shape of Modern Torture: Extraordinary Rendition and Ghost Detainees’ (2005) 6 MJIL 516.

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space’ as the Information Commissioner puts it)95 and the gains represented by increased public participation in current decision-making processes as well as greater accountability in respect of policies that have already been implemented. The latter might include the exposure of ‘wrongdoing.’ Alternatively, where a policy decision will involve ‘large amounts of public expenditure on a particular project’, the public interest in disclosure is considerably strengthened. Somewhat troubling is the fact that factual information used to inform policy debates within government is deemed to be caught within the ‘formulation and development of government policy.’ Whilst this will apply to a considerable amount of information, a public authority that is minded to resist disclosure of factual information is required to show that the public interest in maintaining the exemption outweighs the public interest in disclosure. The weakness of the access provisions set out in s. 35 (or rather the weakness produced by their interconnectedness with ss. 27 & 42) became apparent in a challenge to the Government’s refusal to disclose information relating to the Attorney General’s detailed advice to the Blair Cabinet about the legality of the Iraq war. This advice had been provided on March 7, 2003 but had not been made publicly available. Instead, in an exceptional public statement on March 17, 2003 the Attorney General supplied a written answer to a parliamentary question in which he stated that ‘it was plain’ that Iraq was in material breach of its obligations in international law to disarm. The suspicion was that the Attorney General had been lent on to ‘firm up’ his earlier advice to bolster the Blair Government’s case for going to war. During the Information Commissioner’s investigation, a partial leak of the Attorney General’s advice of early March 2003 occurred which prompted the Government to release the advice in full. This document showed that the Attorney General was more equivocal about the legality of going to war without a second UN Security Council resolution. In his Enforcement Notice, the Information Commissioner found that, outside the materials which were exempted under s. 27, the public interest in disclosure of the information which ‘led to, or supported, the concluded views of the Attorney General on 17th March Statement.’ outweighed the public interest in maintaining the exemption in respect of those materials.96 A critical factor behind the Information Commissioner’s conclusion was the unequivocal nature of the Attorney General’s written answer on the critical issue of legality. This called for disclosure of supporting materials so that the public could better understand the background to the March 17th statement and consider whether the Attorney General’s conclusions did support the political decision to go to war. The case for disclosure was also helped by the passage of time since the advice had been given. Nonetheless, the Information Commissioner ruled against disclosure of more tentative or provisionally expressed opinions held by Law Officers and their staff. Of course, the Commissioner acknowledged that the Government’s decision in the intervening

95

ICO, Freedom of Information Act Awareness Guidance No.24 (Version 2) September 11, 2008. ICO Enforcement Notice 22nd May 2006.

96

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period to publish in full the March 7 advice had gone some considerable way (and indeed further) to meet the terms of this Enforcement notice. The struggle to obtain disclosure of details of the Attorney General’s advice does point up some deficiencies in s. 35 that are worth noting. At the outset, it seems that s. 27 (international relations) inevitably casts a large shadow over access to materials concerning military conflicts around the world. However, for reasons that were explored above, the case in 2009 for maintaining the exemption in respect of material deemed prejudicial to US-UK relations could well be weaker, at least in some respects. It is to be hoped therefore that the Information Commissioner lives up to his commitment to work on a ‘case by case’ basis. Another troubling feature of the ruling is ‘particular importance’ attached to the notion of legal professional privilege. The arguments for maintaining legal professional privilege were ‘very strong’ according to the Commissioner. By way of comment it could be argued that, where the client is the state and the contents of the lawyer-client communications relates to the basis in international law of the use of massive (and hugely controversial for legal and moral reasons) military force against another state, the invocation of privilege more usually cited in lawyer and private client relations should carry less weight against countervailing public interest claims to learn the details of the Attorney General’s advice. This argument is strengthened because of the Attorney General’s position as a party political figure that sits in the Cabinet. To assert an analogy with the position regarding legal advice supplied by a high street solicitor on the matter of a will drawn up for a client in this context looks to be misconceived. Crucially, the weakness of s. 35 is revealed by the significance attached to fact that the Attorney General’s statement of March 17, 2003 was published. The inference here is that, had he opted not go public, little basis for revealing the March 7 advice would have existed. The public interest claims in maintaining the exemptions in ss. 35 and 42 would have trumped arguments for disclosure. A further (and equally controversial) qualified exemption is set out in s. 36 of the 2000 Act in relation to information that is prejudicial to the effective conduct of public affairs. Information falls into the exempted category here if in the reasonable opinion of a qualified person, its disclosure would have certain specified effects. These effects are laid down in s. 36(2) including (a) prejudice or likely prejudice to the maintenance of the convention of collective responsibility of Ministers of the Crown; (b) inhibition or likely inhibition of the free and frank provision of advice or the free and frank exchange of views for the purposes of deliberation; (c) prejudice or likely prejudice to the effective conduct of public affairs. As with s. 35, where a qualified person does make a reasonable determination that disclosure is prejudicial, the public authority still has to show that on balance the public interest in disclosure is outweighed by the public interest in maintaining the exemption. In February 2008, the Information Commissioner ruled that sections of cabinet minutes dealing with the war in Iraq ought to be disclosed under the terms of the 2000 Act. The Commissioner did however accept that other parts of the minutes could lawfully be withheld because of the prejudicial impact on relations with the United States. As the Campaign for Freedom of Information pointed out, this aspect

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of the ruling leaves ‘significant gaps’ in the record.97 The Brown Government has appealed against the main ruling and a decision from the Information Tribunal is expected at the time of writing.98 One suggestion to emerge from the Tribunal proceedings is that the Information Commissioner ruled in favour of selective disclosure for two reasons: first, the brevity of Cabinet discussion on the question of whether to go to war and second on account of a dispute about whether Prime Minister misled his colleagues on the Attorney General’s legal advice as it then stood. As time goes by, it can be expected that arguments for non-disclosure of materials relating to the decision to go to war in Iraq will weaken. Thus in September 2008, the Government was ordered to disclose materials relating to drafts of a controversial dossier on Saddam Hussein’s weapons of mass destruction. Rejecting the claim that disclosure of comments on drafts of the dossier could endanger national security, the Information Commissioner found that there was a ‘strong public interest in a degree of exposure of the circumstances of the dossier’s production’ since this would help clarify whether intelligence findings and assessments were distorted in order to strengthen the public case for going to war.99

6.5

Conclusion

In the United Kingdom, over the last few decades, a series of scandals have illustrated the existence of a ‘culture of secrecy’ and have indicated the desirability of freedom of information legislation to counter excessive and inappropriate secrecy in central government and other bodies. Many such cases have concerned information the security services . . . These have all highlighted the lack of accountability of security services, and illustrated the lengths to which the government may go to prevent disclosure of official information or to ensure that potential whistleblowers are discouraged . . .100

The state plainly needs to maintain the secrecy of certain types of officially held information whose disclosure is likely to seriously damage or prejudice public safety, national security and other defined sets of interests. No serious advocate of the cause of freedom of information wishes to have put in the public domain current details of troop movements that would assist enemy combatants. The realities surrounding the disclosure of official information however point overwhelmingly to the inadequate release of information needed by the electorate to exercise informed judgment over politicians and executive authorities. The Iraq 97

Campaign for Freedom of Information – Press Release (2008) February 26. The Information Tribunal subsequently upheld the Information Commissioner’s main ruling. In response the Government announced it would invoke for the first time ever its veto powers under s. 53 to overrule the Tribunal. HC Debs (2008–2009) Vol. 488. cols.153–156. 99 ‘Iraq: Government ordered to release Saddam Hussein dossier’ The Guardian (2008) September 4. 100 J Wadham & J Griffiths, Blackstone’s Guide to The Freedom of Information Act 2000 (2nd edn.) (2005, OUP, Oxford) at pp. 31–2. 98

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War has put into sharp focus the tangled array of official secrets laws, discredited DA Notices and heavily qualified freedom of information laws that stifle dissent and thereby public debate on key issues. The occasional failed prosecutions give little cause for cheer since these have, if anything, caused the Government to consider how already broadly defined penal laws might be further widened. Moreover, beneath the high profile surface of such prosecutions are lesser-known instances of the arrest and harassment of civil servants and journalists that fail to reach the door of any Crown Court. At the same time, there are some positive developments to emerge from the work of the Information Commissioner and these should be acknowledged. Despite an unpromising legislative design, important gains to democratic self-rule have been secured. In the face of the disappointing parliamentary endorsement of secrecy claims, the Information Commissioner currently offers an important route by which a measure of intelligent scrutiny of governmental conduct can be exercised. Old habits, however, die hard.

Chapter 7

Conclusion: Safeguarding the Jarring of Opinion; Where Now?

7.1

Introduction

Anyone who studies the treason trials of 1794, or, even, more striking, the cases under the Espionage Act in America during 1917–20, will be convinced of the unwisdom of allowing the executive an undue latitude. Every state contains innumerable and stupid men who see in unconventional thought the imminent destruction of social peace. They become Ministers; and they are quite capable of thinking that a society of Tolstoyan anarchists is about to attempt a new gunpowder plot. Harold Laski, Liberty in the Modern State 1

This monograph has focused upon the threat posed to expressive freedom by the framework of laws invoked to thwart the activities of terrorists and their supporters. Separate chapters have explored the varying extents to which the ‘war on terror’ has curtailed aspects of freedom of expression, including the impact on journalists and newsgathering activities. The weaknesses in the international legal system for protecting unpopular expression that were identified in Chap. 2 naturally concentrated attention on the domestic legal environment. In this concluding section of materials, some of the themes that underscore the writing in Chaps. 3, 4, 5 and 6 will be taken up again. The forward-looking emphasis in the final chapter seeks to ascertain whether, consistently with our domestic constitutional traditions, a more robust defence of dissenting opinion and unpopular political associations may be attempted. Specific attention will be paid to the notion of common law constitutionalism and a substantive conception of the rule of law in formulating a stronger defence for dissenting expression. We live in a time of fear and it is the entirely natural response in such moments to seek greater security. When politicians offer the prospect of greater security through a selective reduction in the freedoms of those with different worldviews to our own, principled opposition to any such reduction will be both unpopular and personally disadvantageous for its advocates. First Amendment scholar Geoffrey 1

(1930, Faber & Faber, London) at p. 106.


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7 Conclusion: Safeguarding the ‘Jarring’ of Opinion’; Where Now?

Stone observed that societies have long been content to imprison aliens and radicals on a promise of greater security. This was the ‘unimpeachable lesson of history.’2 And, in the event that our actions turn out to be hasty and ill-informed, the sheer ‘differentness’ of the victims from the mainstream will in all likelihood evoke less concern than if the error had been committed against one of ‘us.’ Reference was made in Chap. 1 to the work of Judith Shklar on fearful climates and the cruelties that have been perpetuated against minorities by frightened majorities. Fearful groups and power holders are more likely to act in the grip of an irrational conviction. For Shklar, the chief task of liberalism is to protect the vulnerable and defenceless from state and private forms of cruelty.3 The unequal concentration of ‘military, police and persuasive power.’ which vests in government means that there is good reason for liberals to be constantly apprehensive. A well-functioning liberal democratic constitution sets up institutional constraints on the exercise of majoritarian power so that contradictory, diverse and offensive forms of conduct and speech may coexist and jar with each other within the same polity. As Shklar reminds us, this is no easy option. ‘The very refusal to use public coercion to impose creedal unanimity and uniform standards of behaviour demands an enormous degree of self control.’4 Shklar’s avoidance of cruelty argument provides a purely negative reason for allowing dissenting expression. A more positive account that identifies the benefits to society (and organisations) from tolerating such speech is to be found in Cass Sunstein’s Why Societies Need Dissent.5 This defence of dissenting expression emphasizes the chances of more informed decision-making in cultures where prevailing orthodoxies and dominant viewpoints can be freely challenged. Professor Sunstein’s qualified defence of dissent acknowledges however that there may be good reasons for taking notice of the state of popular opinion. The reason many people choose to eat at one restaurant whilst shunning another may disclose relevant and important information about the respective quality of food and service on offer in each establishment. The fact that a holiday location is popular or that a lawyer/dentist/plumber has a lengthy client list may be similarly informative. Another reason for paying attention to popular opinion (and one more centrally connected to the themes in this monograph) is that it may be personally dangerous to omit to do so. Sunstein cites the example of Farag Fouda who was shot dead in Cairo after publication of his defence of the Coptic Christian brothers.6

2

Perilous Times: Free Speech in Wartime (2004, WW Norton & Co. New York) at p. 529. Shklar remarks in her essay ‘The Liberalism of Fear’ that the ‘basic units of political life are not discursive and reflecting persons, nor friends and enemies, nor patriotic soldier – citizens, nor energetic litigants, but the weak and the powerful.’ in (ed. S Hoffman) Judith N Shklar – Political Thought & Political Thinkers (1998, Univ. of Chicago, Chicago) at p. 9. 4 Ordinary Vices (1984, Harvard Univ Press, Mass.) at p. 4. 5 (2005, Harvard Univ. Press, Mass.) 6 Ibid., at pp. 6–7; N Belton, ‘Who needs publishers?’ (1993) 22 Index on Censorship 7. See similarly the case of Naguib Mahfouz the Egyptian Nobel Prize winning author who survived an assassination attempt in 1994 by an Islamic fundamentalist after the publication of his novel Children of the Alley. 3

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Nonetheless, where conformity is so widespread (and dissent correspondingly scarce), Sunstein argues that this comes with a serious cost to informed decision making by members of the public. If one considers the phenomenon of cascades that can be either informational or normative, the absence of dissenting opinion can be seen to have serious adverse consequences. A cascade occurs when a group of people are persuaded to adopt a certain position not on account of having thought about the matter independently but rather because another group before them have espoused that same position. The desire to conform to this position may be so strong in some cases that it can lead to the suppression of contrary information via acts of self-censorship. Sunstein suggests that type of conformity can be especially damaging when the followers mistakenly believe that members of the original group have coalesced independently around the same position. The example is given of the hundreds of US Law Professors who signed a letter of protest against the treatment of detainees at Guantanamo Bay. Sunstein observes that few of this group would have been legal experts in the area of executive detention during armed conflict and concludes that the vast majority would have been content to trust the judgment of others. In turn, it seems safe to assume that this large group of US Law Professors would have exerted an influence over a section of lay opinion, making this latter group more likely to concur with the view expressed in the protest letter. In well-functioning democracies, the risks that attach to excessive conformity are reduced by a strong constitutional commitment to freedom of expression that denies public authorities the power to censor speech simply on account simply of a disagreement with the speaker’s message. Such protection whilst necessary may not however be sufficient to prevent harmful cascades of misinformation or uninformed opinion which can develop when the state itself limits the flow of officially held information into the public domain. In the previous chapter, DA-Notices were seen to have played a part in the Government’s deliberate misinformation strategies during the second Gulf War when a laptop computer belonging to the RAF was stolen. This danger can be largely overcome through broadly applicable, vigorously enforced freedom of information laws with narrowly defined exceptions.7 After all, governments of all political persuasions will be tempted from time to time to restrict the flow of officially held information and thereby hinder their critics’ opportunities to mount damaging assaults on current policies. Why Societies Need Dissent is not however to be read as an unqualified defence of each and every instance of dissent. Just as consensus is not per se bad, neither is dissent per se good or beneficial. The author cites a ‘dishonour roll’ of previous dissenters (the usual suspects surface here – Hitler, Lenin, Osama bin Laden) to make the point that sometimes dissenters can lead people in ‘bad directions.’8 Herein lies a problem with Sunstein’s thesis. The boundaries of his tolerance of

7

Of course, as was noted in Chap. 6, the Committee issuing DA Notices is not currently subject to the Freedom of Information Act 2000. 8 Why Societies Need Dissent (2005, Harvard Univ. Press, Mass.) at p. 7.

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dissent are never fully fleshed out. Without a definitive means of identifying what a ‘bad’ direction looks like, the onlooker armed solely with a copy of Why Societies Need Dissent has no way of knowing whether any particular governmental restriction on dissent is justified. Whilst there might be nigh-on universal agreement that Hitler’s ideas and programmes are utterly abhorrent, no such consensus would exist on the question of whether any/some/all pro-Nazi expression should thereby be suppressed. Neither is it clear how Sunstein would respond to Laski’s point about the tendency of ‘innumerable and stupid’ office holders to believe mistakenly in the imminent collapse of the social order. To judge by his earlier published work, Sunstein would agree that there is a heavy onus on the liberal democratic state to make a compelling case for interference on contents grounds with political forms of expression.9 At the same time, Sunstein’s civic republicanism accepts the legitimacy of viewpoint bans where the expression advocates objectively ‘bad’ answers to societal problems.10 For some liberals, viewpoint discrimination is objectionable in principle because it limits the autonomy of individual speakers and listeners alike to decide for themselves what they wish communicate/hear. The prohibition on dissenting speech that is abhorrent also falls foul of Mill’s teleological defence of expression in those instances where it is conceded that the expression is almost certainly held in error. Mill argued that even if we could be certain that an opinion is false, it would still be wrong to suppress that viewpoint since, by being forced to defend the true belief, the latter’s supporters are challenged to examine the grounds for holding the true beliefs. The benefits of rigorous thinking which follow from having to defend the true belief are lost if the false opinion is suppressed. Instead, this belief is clung on to as a ‘dead dogma.’ The argument made in this monograph is that, historically speaking, dissenting expression has been too easily silenced by Parliament and the judges and that, currently, the ‘war on terror’ provides the latest pretext for the assault upon contentious and diverse opinion (and the media channels through which such opinion can emerge) on matters that ought to be accorded greater constitutional protection. The question that is posed in the final section of materials is whether, consistent with underlying tenets of common law constitutionalism, a bolder normative vision of the freedom to dissent may be plausibly advanced.

7.2

Towards a Bolder Defence of Dissenting Expression: The Pathological Perspective and Common Law Constitutionalism

In the absence of entrenched constitutional protection for expression, a welldocumented tendency to legislative panic and overreaction and the failure of the 9

Democracy and the Problem of Free Speech (1993, The Free Press, New York). ‘Beyond the Republican Tradition’ (1988) 97 Yale L J 1539.

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judicial sphere to elaborate a principled defence of free expression, the prospects for developing robust protection for speech the majority disagrees with (let alone expresses anti-democratic values) would seem remote. One consoling thought however might be provided by adopting a historical perspective on free speech crises. Geoffrey Stone’s magisterial survey of free speech rights under the US Constitution’s First Amendment during wartime posed the question whether the US had made progress as a nation since the Sedition Act 1798 which had been enacted by the Federalists to silence their Republican opponents.11 Stone’s conclusion was that progress had been made. Careful to qualify his judgment by conceding that no-one could be completely certain that the Sedition Act 1798 would never be re-enacted and refusing to rule out draconian legislation in the event of massive and repeated terrorist attacks on the US,12 Stone argued nonetheless that the ‘major restrictions of the past would be less thinkable today than they were in 1798, 1861, 1917, 1942, 1950 or 1969.’13 In our own domestic context we can ask like Stone whether some/all of the worst excesses of speech restraint in the eighteenth, nineteenth and twentieth century would not be repeated today, or, at the very least, are equally less thinkable at the start of twenty first century. Certainly, it is extremely doubtful that a newspaper editor who employed forceful invective to criticise the Prime Minister’s treaty negotiation skills with his EU partners would face seditious libel proceedings in the manner of John Wilkes at the time of the Treaty of Paris. A more relevant comparator of the extent of progress in this area might be the successful prosecutions of Aldred in 1909 and members of the Communist Party of Great Britain in 1925 for the same offence. Aldred, it will be recalled, was convicted for publishing articles which praised as ‘martyrs’ persons convicted of murder and other offences against British subjects in India and sought to justify more generally political assassinations of the British imperial class. For their part, the Communist Party members were convicted at a time when fears of a Soviet-style workers’ revolution were rife. Subsequently, the absence of recorded prosecutions for seditious libel since 194714 reveals not that the state has become more relaxed about this sort of speech but rather that the common law has been overtaken by the creation of statutory offences that target specific forms of political dissent deemed particularly troubling at given moments. In the era since 11

Perilous Times: Free Speech in Wartime (2004, WW Norton & Co. New York) at p. 533. It may be argued that these caveats weaken significantly the claim of ‘progress’. 13 Ibid. Although, an alternative explanation of what has happened is that the courts are forever involved in a game of ‘catch-up’ with executive policies. That is, at the outset, the courts elaborate a doctrine to find unconstitutional an existing policy affecting free speech or other liberty. Subsequently, a new threat to peace/security/order is identified by the executive which demands a new policy response which is formulated in a way to avoid falling foul of the courts’ previous rulings. In turn, this later policy response is also adjudged unlawful. The court announces a new rule to capture the essence of the illegality only for a subsequent threat to prompt a further policy response crafted to avoid giving constitutional offence. For an argument along these lines, see M Tushnet, ‘Defending Korematsu? Reflections on Civil Liberties in Wartime’ (2003) Wis L Rev 273. 14 G Robertson QC & A Nicol QC, Media Law (5th edn.) (2008, Penguin Books, London) at p. 673. 12

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the Human Rights Act came into force, it should be noted that our legislators will have had at least to consider Article 10 ECHR compatibility issues. This fact alone however has not prevented the passage of legislative considered by the parliamentary Joint Committee on Human Rights to be breach of Article 10.15 More fundamentally, the weaknesses and ambiguities in European Convention protection for dissenting expression that were identified in Chap. 4 can be exploited by governments eager to close down avenues of political opposition. Today, it is not farfetched to imagine that a speaker in Aldred’s position would be charged with the glorification of terrorism and that a political association calling for the overthrow of liberal democracy and its replacement with a theocratic, sharia law-based society would be a prime candidate for proscription. One proposal to safeguard dissenting expression at times when it is most likely to come under stress was discussed in Chap. 4. Professor Blasi’s pathological perspective on the free speech guarantee in the US Constitution takes as its overriding objective the need to equip the first amendment to do maximum service in those historical periods when intolerance of unorthodox ideas is most prevalent and when governments are most able and most likely to stifle dissent systematically. The First Amendment, in other words, should be targeted for the worst of times.’16

Blasi’s prescription for the adequate protection of dissenting expression in stressful times is court-focused and requires the judiciary to articulate during normal, unstressed periods the core commitments that follow from the First Amendment. The extent of protection for dissenting expression in intolerant times will hinge, Blasi maintains, upon just how well the core commitments were nurtured during the periods of calm. Clearly articulated statements of principle during more tranquil times will allow courts and judges to hold fast to a set of commitments that help define the polity which might then be cast aside in wholly exceptional times only.17 Conversely, weaknesses in protection during more serene periods will impact adversely in abnormal times, allowing the executive and legislature greater discretion to cut back on expressive freedom at moments of crisis and perhaps inflict longlasting damage on this central entitlement.18 Blasi then examines the corpus of First Amendment jurisprudence to ascertain which key values and priorities have underscored the protection of speech in the US. This material is obviously beyond the scope of the present discussion. Nonetheless, it is interesting to speculate about the

15

See for example the discussion of the new offence of ‘glorification’ of terrorism in Chap. 4. ‘The Pathological Perspective and the First Amendment’ (1985) 85 Colum L Rev 449, at 449–450. 17 Blasi is careful to acknowledge the concern that the courts may have a limited ability to guess precisely what sorts of challenges will arise in pathological periods, although he claims that the historical record of the US courts gives less cause for concern, ibid., at 510–511. See for a contrary view Tushnet, ‘Defending Korematsu? Reflections on Civil Liberties in Wartime’ (2003) Wis L Rev 273. 18 Ibid., at 457–458. 16


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possible application of Blasi’s arguments to our own constitution. If, as most observers would accept, attitudes in non-muslim sections of UK population towards muslims and the Islamic faith have undergone a notable shift since the events of September 11, 2001 and July 7, 2005 and, further, that this attitudinal shift has been reflected in the legislative and executive policies, then we might be thought to be experiencing a pathological moment that truly threatens expressive freedom. We should therefore at least examine whether Blasi’s prescription for the adequate protection of dissenting expression holds any value across on this side of the Atlantic. The absence of an entrenched, textual guarantee of freedom of expression in the UK has tended to discourage articulation by the judiciary of the purpose(s) behind free speech. To revert to Professor Blasi’s terms, there has been scant ‘nurturing’ of the central meaning and commitments entailed in the concept of freedom of speech in the more tranquil periods of our history. Instead, free speech disputes have been settled by arid, technical analyses of statutory interpretation and/or the somewhat tautological reasoning that passes for ‘Wednesbury unreasonableness’ in judicial review applications.19 The classic instance of which was provided by the House of Lords in ex parte Brind concerning the challenge to Mrs Thatcher’s ban on broadcasting directly the words of the IRA or their supporters.20 Lord Bridge of Harwich put it thus: I find it impossible to say that the Secretary of State exceeded the limits of his discretion. In any civilised and law-abiding society, the defeat of the terrorist is a public interest of the first importance. . . . The Secretary of State . . . decided it was necessary to deny to the terrorist and his supporters the opportunity to speak directly to the public. . . I do not see how this judgment can be categorised as unreasonable.21

There are of course notable isolated exceptions22 but their very infrequency and obiter nature has prevented development of a more sustained exploration of free speech protection. The Human Rights Act 1998, whilst giving the judges a greater role in the protection of certain enumerated rights to be found in the European Convention Rights, explicitly affirms the continuing sovereignty of the Westminster Parliament. Accordingly, the 1998 Act has not sparked widespread judicial discussion of fundamental principle. By contrast, and with the aid of a formal constitutional text, the High Court of Australia fixed upon the right to vote in Commonwealth elections for the Senate and House of Representatives set down in sections 7 and 24 of the 1901 Australian Constitution to develop an implied freedom of

19

J Jowell & A Lester, ‘Beyond Wednesbury: substantive principles of judicial review’ [1987] PL 368, at 372. 20 R v Secretary of State for Home Department ex parte Brind and others [1991] 1 AC 696. 21 Ibid. at p. 749 and see the comment by Thompson that the House of Lords failed ‘to articulate what is meant by freedom of expression. . . .’ B Thompson, ‘Broadcasting and terrorism in the House of Lords’ [1991] PL 346 at 348. 22 See for example Sedley J in Redmond-Bate v DPP [2000] HRLR 249 and the House of Lords Derbyshire County Council v Times Newspapers [1993] AC 534.

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political communication in the landmark judgments of Nationwide News Pty Ltd v Wills23 and Australian Capital Television Pty Ltd v Commonwealth.24 The High Court declared that sections 7 and 24 of the Constitution not only establish but, crucially, entrench Australia as a representative democracy.25 Where a representative democracy is constitutionally entrenched, it is an ‘essential’26 element of such a society that freedom of political communication is guaranteed.27 The freedom however is non-absolute and thus capable of curtailment by the legislature. In Lange Brennan CJ stated that the courts should only intervene where if the restriction is not ‘reasonably appropriate and adapted to serve a legitimate end. . .’28 In making this assessment, the legislature was to enjoy a margin of appreciation within which curtailment of political communications would remain free from judicial control.29 Only those rules which ‘unnecessarily or unreasonably impair the freedom of communication’ would be declared invalid.30 Earlier in this chapter, the accounts given by Mill and latterly Sunstein in support of a substantial measure of freedom to dissent were seen to emphasize the benefits that flow to society (and organisations in Sunstein’s case) from tolerating unpopular opinion. A radically different, non-instrumental basis for upholding dissenting expression is offered in the work of Trevor Allan, a legal theorist whose major work on common law constitutionalism Constitutional Justice – A Liberal Theory of the Rule of Law sets out a substantive conception of the rule of law through which fundamental guarantees of equal respect and individual autonomy inherent in the liberal democratic order operate to limit Parliament’s law-making powers.31 I shall argue that although his position confers wide protection upon dissenting expression than other accounts, Allan concedes that the freedom to engage in such expression must be given up when the institutions of the democratic state are thereby placed in serious danger.

23

(1992) 177 CLR 1. (1992) 177 CLR 106. 25 For anticipation of this development and the implication of other constitutional freedom see the judgments of Murphy J in cases such as Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556 and Victoria v Australia Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25; and Stephen J. in Attorney General (Cth): Ex rel McKinlay v Commonwealth (1975) 135 CLR 1. 26 Per Brennan & Gaudron JJ. or ‘indispensable’ per Mason CJ. 27 For commentary see inter alia G Williams, ‘Engineers is Dead, Long Live the Engineers!’ [1995] 17 Syd LR 62; S Walker, ‘The Impact of the High Court’s Free Speech Cases on Defamation Law’ [1995] 17 Syd LR 43. A Stone ‘Freedom of Political Communication, the Constitution and the Common Law’ (1998) 26 Fed L Rev 219. 28 (1997) 189 CLR 520, 567. See further M Chesterman, Freedom of Speech in Australia – a delicate plant (2000, Ashgate, Aldershot) ch. 2. 29 Australian Capital Television Pty (1992) 177 CLR 106, 159. 30 (1997) 189 CLR 520, 568. 31 (2003, OUP, Oxford). 24


163

Allan’s account starts from a rejection of majoritarian conceptions of democracy as misconceived, arguing that ‘popular sovereignty’ is better understood as embodying the claim of every citizen to equal respect. A majority decision to remove the legal foundations of the dignity and independence of a single citizen, in violation of the principles of the rule of law, is not to be understood as an exercise of popular sovereignty, however great the majority or passionate its specious claim of legitimacy.32

It follows that those rights that are traceable to the foundational claim of individuals to equal respect inhere in the common law and are beyond amendment, even where the prescribed procedures for amending constitutional freedoms are followed. The examples that are given by Allan include freedom of political speech and the right to a fair trial. Any attempt to eliminate such rights and freedoms would amount on his view to the destruction of constitutional fundamentals. At this point, it is important to be clear about the connection Allan makes between the rule of law, equal respect and freedom of political speech, especially the critical importance he attaches to dissenting expression within the liberal democratic order. At the centre of Allan’s conception of the rule of law lies the moral conscience of each individual. ‘(A)ny rule’s entitlement to obedience, even when issued in apparent exercise of the state’s authority, is ultimately a matter of personal moral conscience.’33 The independent, reasoning individual at the centre of this conception remains entitled to reach his/her own judgment about the wisdom of state policies even when the state acts in good faith and in pursuit of a coherent notion of the public good. Where the state disregards the equal respect that is owed to each citizen by interfering with freedom of speech (including by restricting access to information that is needed for the individual to reach a reasoned conclusion about the legitimacy of state policy) and commands obedience to its policies, then, Allan argues, the state is acting in breach of the rule of law.34 On this view, the suppression of dissenting expression (a category that comprises in part speech that urges disobedience to state demands) prevents citizens from reaching their own conclusions about the moral basis of rejecting orthodox ideas and the state’s claim to be obeyed. Conversely, where the state is allowed to suppress dissent, it effectively usurps individual autonomy and violates an ‘integral feature of the rule of law.’35 Allan naturally rejects the First Amendment standard of ‘clear and present danger of substantial and imminent evil’ applied in cases such as Brandenburg v Ohio36 to distinguish constitutionally protected speech from expressive conduct that may be lawfully regulated. This is because the First Amendment standard focuses upon the 32

Ibid., at pp. 261–262. Ibid., at p. 89. 34 Allan traces the origins of this autonomy-based defence of dissent and disobedience to Thomas Scanlon’s influential essay ‘A Theory of Freedom of Expression’ in (ed.) R Dworkin, The Philosophy of Law (1977, OUP, Oxford). 35 Constitutional Justice – a Liberal Theory of the Rule of Law (2003, OUP, Oxford) at p. 90. 36 395 US 444 (1969). 33

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likely success (or not) of the speech in producing disobedience to laws rather than the damage to the autonomy of speakers and listeners that results from restriction. For Allan, these autonomy interests remain equally valid, irrespective of whether the advocacy/incitement is likely to cause others immediately thereafter to act unlawfully. The radical subversive’s expressed opposition to the democratically elected government is thus protected under the constitutional commitment to freedom of political speech. The entitlement of each member of the audience to be given an opportunity to decide for him/herself whether convincing reasons have been provided in support of the programme of action outlined by the speaker denies the state any legitimate basis for interfering with this communicative activity. A separate reason for doubting the value of the ‘clear and present’ danger test of course is the test’s record in settling the boundaries of constitutionally protected expression. The inherent malleability of the standard was made clear by the US Supreme Court’s interpretation in Dennis v US where the Court interpreted the standard to allow for the regulation of political dissent where the ‘evil’ advocated was great and sufficiently probable, even if not actually imminent.37 The primacy accorded in Allan’s account to individual autonomy interests naturally invites inquiry about the circumstances, if any, in which such interests might be legitimately subordinated. Allan appears to accept interference (in the form of a criminal penalty) with the autonomy of speakers who engage in emotive and abusive speech designed to inflame their audience.

7.2.1

A final thought

Following the US Supreme Court’s ruling in Chaplinsky v New Hampshire, he acknowledges that abusive speech will have ‘slight social value as a step to truth’ and will be outweighed by countervailing interest in good order.38 Here, the loss of constitutional protection stems from the speaker’s failure to appeal to the reasoning capacities of the listeners.39 Whether or not public disorder then ensues is less determinative of the speaker’s free speech entitlements. Allan’s account privileges reasoned, intellectual exchange above impassioned, less articulate outbursts and thereby runs the danger that less well educated speakers will thereby more readily forfeit their autonomy claims. Notwithstanding this point, Allan wants to maintain the distinction between the constitutional protection given to ‘inciting insurrection in aid of some conception of the common good, conscientiously pursued’ and the 37

341 US 494 (1951). See for such criticism, J Rawls, Political Liberalism (1996, Columbia Univ. Press, New York) at pp. 352–253. 38 315 US 568 (1942). 39 Allan acknowledges that a speaker engaged in an otherwise serious and reasoned criticism of government might lapse into ‘the most opprobrious insult’ and argues that it would be wrong for exclude constitutional protection for the speaker on account of the lapse, Constitutional Justice – a Liberal Theory of the Rule of Law (2003, OUP, Oxford) at pp. 109–110.


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unprotected conduct involved in ‘provoking a riot by inflaming the passions of an angry mob, impervious to reason.’ 40 The former remains protected unless there is a ‘genuine and imminent threat to the survival of a democratic regime. . .’41 Where such a threat is present, the rule of law (or elements of it) might exceptionally be suspended until the threat has passed. It is this sense of ‘extreme constitutional crisis’ when free political institutions cannot function that justifies a temporary suspension of the basic liberties such as political expression. Allan like Rawls before him distinguishes between threats that go to the very existence of democratic institutions on the one hand and other ‘emergency’ situations such as wars, natural disasters etc where there may be a serious political or economic threat to the state but which, at the same time, do not threaten the very existence of the state or the operation of democratic institutions. Rawls alludes to the historical evidence that free democratic institutions have continued to function effectively during serious emergencies without restricting political expression.42 Conversely, where political speech has been restricted, no resulting contribution towards the goals of the emergency is apparent. The UK Government’s illiberal attitude towards the expression of Islamic fundamentalist ideals is reminiscent of the US Supreme Court’s panicked upholding of New York’s criminal advocacy statute in Gitlow.43 The defendant was charged with advocating the overthrow of organised government and the establishment of a revolutionary dictatorship of the proletariat. Such subversive advocacy was not protected under the First Amendment and Gitlow’s conviction had not been unconstitutional. The state did not have to wait until the revolutionary words were acted upon in the streets. Here are the words of majority opinion in Gitlow approving this pre-emptive strike upon dissenting opinion. Such utterances, by their very nature, involve danger to the public peace and security of the State. . .. And the immediate danger is none the less real and substantial, because the effect of a given utterance cannot be accurately forseen. A single revolutionary spark may kindle a fire, that smouldering for a time, may burst into a sweeping and destructive conflagration.44

The assumptions of the majority in Gitlow are those of our Government today who would have us believe that our political institutions and values are fragile. The implicit suggestion is that there are powerful and volatile social forces in our communities and beyond which, upon hearing the revolutionary message of agitators, are likely to sweep all before them with unstoppable force. How vital then in contrast to assert a Lockean understanding of human nature in which the individual is deemed capable of politically virtuous conduct. The respect that is owed to the autonomous, politically virtuous citizen requires that governments and Parliament refrain from curtailing freedom of political expression outside of the most 40

Ibid. Ibid., at p. 111. 42 Political Liberalism (1996, Columbia Univ. Press, New York) at p. 354. 43 268 US 652 (1925), Holmes & Brandeis dissenting. 44 Ibid., at p. 669. 41

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exceptional of circumstances in which the they existence of the democratic state or its core institutions is at grave risk. Revolutions occur, Locke argued, not upon ‘every little mismanagement in public affairs’ only when ‘a long train of abuses, prevarications and artifices . . . make the design visible to the people and they cannot but feel what they lie under and see whither they are going. . .’ 45 Intelligent government should not be over-hasty in fearing the loss of all authority to govern but should allow instead a very broad range of dissenting opinion if only the better to understand the nature of specific grievances and thereby fashion appropriate policy responses.

45

Second Treatise of Government (1980, Hackett Publishing Co. Indianapolis) s. 225.

Index

A Abu Hamza, 66 Abu Izzadeen, 101 Adams, John (Federalist Party), 73, 74 Allan, Trevor, 162–165 Al Qaeda

training manual, 63 Apologie du terrorisme, 92 Article 19, 28, 33–36, 39 Ashby Wilson, Richard, 3, 5–7 Autonomy, 2, 18–20, 44, 69, 158, 162–164 B Bailin, Alex, 137 Barnardiston, Sir Samuel, 78 Bassam, Lord, 116 Blair, Tony, 1, 3, 39–41, 97, 131, 136, 138, 151 Blasi, Vincent, 73, 105, 160, 161 Blasphemous libel, 82, 84 Bonner, David, 14 Brandeis, Justice, 74 British Muslims, 76, 104 Bush administration, 136, 138, 150 Butt, Hassan, 114, 115 C Campaign for freedom of information, 152 Canada

Charter of rights and freedoms, 48 Carlile of Berriew, 49 Cassese, Antonio, 25, 28 Catastrophic harm, avoidance of, 62–63 Charles I, 78 Communist Party of Great Britain, 77, 81, 159 Council of Europe

Convention on the Prevention of Terrorism, 76, 92–96 Parliamentary Assembly, 44, 92 Counter terrorism policy

CONTEST, 55 Crenlinsten, Ronald, 101 Cromwell, Oliver, 78

D Defence Press and Broadcasting Advisory Committee (DPBAC), 140–145 Dershowitz, Alan, 4 Duffy, Helen, 31, 41 Dworkin, Ronald, 6, 7, 70

E Eliot, Sir John, 78 Encyclopedia of Aghani Jihad, 66 ETA (Basque Homeland and Freedom), 104 European Convention on Human Rights

Article 10, 27, 69, 71, 85, 88, 92, 94–96, 99, 114, 115, 124–128, 135, 160 Article 11, 27, 60, 61 Article 17, 37, 54, 61, 87, 88 European Court of Human Rights, 17, 94, 95, 101, 104, 130 Ewing, Keith, 14, 15

F FBI, 7 Federal Republic of Germany

Basic Law Article 21, 16, 54 167

168 Feldman, David, 132 Fenwick, Helen & Phillipson, Gavin, 109 First Amendment

clear and present danger test, 164 pathological perspective, 158–166 Fouda, Farag, 156 Fox’s Libel Act, 79 Freedom of association, 6, 36, 37, 54 Freedom of expression, 1–166 Freedom of information

absolute exemptions, 148 Awareness Guidance notes, 149 duty of disclosure, 116, 148 Information Commissioner, 147–149, 151–154 Information Tribunal, 153 Iraq war Attorney-General’s advice, 136, 151, 152 Blair Cabinet discussion, 151 Ministerial override, qualified exemption(s), 148, 150, 152 G Gaddafy, Muammar, 135 Gearty, Conor, 14, 15 General Belgrano, The, 73 Gentle, Gordon, 145 Geraghty, Tony, 139 German Constitutional Court, 52, 89 Glorification of terrorism

dissemination, 55, 56, 85, 93, 97–105, 112 Gun, Katharine, 136 H Harvey, Paul, 61 Hit Man-A Technical Manual for Independent Contractors, 68 Hobbes, Thomas, 3, 6 Holles, Denzil, 78 Holmes, Justice, 74 Home Office, 55, 57, 116, 133, 136, 144 Hunt, Henry ‘Orator,’ 83, 84 I Ignatieff, Michael, 4, 5, 7 Incitement

to racial hatred, 19, 66 to religious hatred, 34, 35, 37, 70, 76, 84

Index Independent Police Complaints Commission (IPCC), 50 Indirect encouragement of terrorism, 76, 85, 96–105 International Covenant on Civil and Political Rights

‘claw-back’ clauses, 31, 33, 36 Human Rights Committee, 29, 32, 34, 37 J Jefferson, Thomas, 74 Jerry Springer-The Opera, 82 Johannesburg Principles on National Security, Freedom of Expression and Access to Information, 28, 35 Joint Committee on Human Rights, 100, 101, 160 Journalists

duties of disclosure, 108, 115 materials, 2, 107, 109–111, 114, 118, 128, 130 source(s), 118–129

K Khawaja, Momin, 45, 47–49 Koskenniemi, Martti, 41 Kostakopolou, Dora, 72

L Laski, Harold, 155, 158 Lawrence, Stephen (MacPherson Inquiry), 146 Lloyd of Berwick, 49 Locke, John, 5, 6, 165, 166 Loewenstein, Karl, 16, 89 Lustgarten, Lawrence & Leigh, Ian, 140

M Madison, James, 52 Malik, Samina (‘The Lyrical Terrorist’), 66, 67 Malik, Shiv, 114, 115 Manningham-Buller, Eliza, 144 Masari, Mohammed al, 40, 97 Material assistance, 116 Matrix-Churchill, 132 Menezes, Jean Charles de, 132 Meron, Thomas, 31, 33

Index Militant democracy, 2, 15–20, 24, 37, 44, 55, 71, 89 Mill, John Stuart, 52, 61, 86, 158, 162 Mujaheddin Poisoner’s Handbook, 63, 67 My Country Right or Wrong, 141

N Naval mutinies, 83 Nolan Committee on Standards in Public Life, 146 Northern Ireland

counter terrorism law(s), 1, 2, 16, 44, 46, 47, 59, 62, 71, 100

O O’Boyle, Michael, 14 Official Secrets Act(s), 133, 134, 138, 139 Operation Gamble, 144 Ordre public, 4, 33, 34, 36 OSCE, 102

P Paine, Thomas, 78 Paris Minimum Standards of Human Rights Norms in a State of Emergency, 28 Pasquill, Derek, 137, 138 Pathological periods, 73, 105 Pearl Harbour, 13 People’s Mojahadeen Organisation of Iran (PMOI), 57, 58 Peterloo Massacre, 83 Phillips inquiry (BSE), 147 Ponting, Clive, 133, 134 Posner, Eric & Vermeule Adrian, 9–15 Possession offence(s), 45, 62, 70, 71 Post, Robert

alienation, 18–21, 44, 94 Production orders

excluded material, 110, 113 inter partes procedure, 110, 112 special procedure material, 110 Proscribed Organisations Appeal Commission (POAC), 57, 58 Proscription

expressive activities regulated by, 75

169 R Rawls, John, 6–8, 165 Roach, Kent, 15, 36 Roosevelt Administration, 14 Rosenfeld, Michael, 71, 75, 89 S Sabir, Rizwaan, 66 Sajo´ Andras, 17 Satanic Verses, 77–85 Saul, Ben, 48, 49 Schumpeter, Joseph, 52 Security vs. liberty, 4–7, 9, 11, 13, 15, 74, 96, 106, 142 Seditious libel(s), 77–82, 84, 85, 159 Shayler, David, 134–136 Shklar, Judith, 8, 9, 156 Sinn Feín broadcasting ban, 103, 104 Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR, 24, 34 Soft law, 2, 24, 27–29, 35, 40 Stephen’s History of the Criminal Law of England, 77 Stone, Geoffrey, 156, 159 Subversive advocacy, 73–77, 81, 82, 85–90, 94, 165 Sunstein, Cass, 63, 90, 156–158, 162 T Terrorism

definition, 15, 36, 38, 43, 45–51, 56, 71, 100, 109, 112 motive-based definition(s), 48, 49, 51 Tesoń, Fernando, 6 Treason, 77, 155 U United Nations

Counter Terrorism Committee, 30, 38 Security Council, 2, 24, 27, 30, 38–41, 97, 136, 151 Special Rapporteur on matters relating to the promotion and protection of the right to freedom of opinion and expression, 129 Sub-Commission on Prevention of Discrimination and Protection of Minorities, 32

170 United States Code, 51 Unlawful assembly, 84 V Valentine, Benjamin, 78 Volokh, Eugene, 68 Voorhoof, Dirk, 108 W Waldron, Jeremy, 7–9, 11 Walker, Clive, 12, 65, 117

Index ‘War on terror,’ 1–21, 23, 32, 41, 74, 155, 158 Wilkes, John, 78, 79, 159 Wright, Peter, 134, 141 Wylde, Nigel, 139 Y Yezza, Hicham, 66 Z Zionviev letter, 81

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