Mon, 19 Mar 2007
Lord Carlile of Berriew Q.C. Independent Reviewer of Terrorism
Legislation has published a 52-page report titled The
Definition of Terrorism
(Crown copyright). Here are his
86. My main conclusions are as follows:
(1) There is no single definition of terrorism that commands full
(2) The risks posed by terrorism and its nature as crime are sufficient
to necessitate proportional special laws to assist prevention,
disruption and detection.
(3) A definition of terrorism is useful as part of such laws.
(4) The current definition in the Terrorism Act 2000 is consistent with
international comparators and treaties, and is useful and broadly fit
for purpose, subject to some alteration.
(5) Idiosyncratic terrorism imitators should generally be dealt with
under non-terrorism criminal law.
(6) The discretion vested in the authorities to use or not to use the
special laws is a real and significant element of protection against
abuse of rights.
(7) The exercise of such discretion requires especial care by those in
whom the discretion is vested.
(8) New sentencing powers should be introduced to enable an additional
sentence for ordinary criminal offences, if aggravated by the intention
to facilitate or assist a terrorist, a terrorist group or a terrorist
(9) Offences against property should continue to fall within the
definition of terrorist acts.
(10) Religious causes should continue to fall within the definition of
(11) The existing law should be amended so that actions cease to fall
within the definition of terrorism if intended only to influence the
target audience; for terrorism to arise there should be the intention
to intimidate the target audience.
(12) The existing definition should be amended to ensure that it is
clear from the statutory language that terrorism motivated by a racial
or ethnic cause is included.
(13) Extra-territoriality should remain within the definition in
accordance with international obligations.
(14) A specific statutory defence of support for a just cause is not
(15) A new statutory obligation should require that the exercise of the
discretion to use special counter-terrorism laws in relation to
extra-territorial matters should be subject to the approval of the
Attorney-General having regard to (a) the nature of the action or the
threat of action under investigation, (b) the target of the action or
threat, and (c) international legal obligations.
(16) The law should not be amended to enable the use in the United
Kingdom of the special laws against persons subject to diplomatic
With the possible exception of (11), Lord Carlile adopts a very prudent
approach and dismisses, sometimes even abruptly, the issues he is aware
62. The fundamental tests applied are to be found in the 24
the Code of Practice for Crown Prosecutors. It is possible, though far
from easy, to challenge some prosecutorial decisions by judicial
The continuation of jury trial provides an important protection against
prosecutions the public find unreasonable or arbitrary. Current
dilution of jury trial is understandable where there is a real risk of
the jury process being contaminated by corruption or intimidation,
infection of the jury process itself. Otherwise the jury remains the
jewel in our criminal justice system. Mistakes will occur from time to
time in that system, including decisions to prosecute. However, the
discretion exercised by the prosecutor should not be discarded lightly
on the basis that one day a seriously malign government may come to
power and arbitrariness will become the order of the day. That view,
expressed to me occasionally by sophisticated commentators, is one I
Let's pass on how mistakes
can seriously adversely affect the life of individuals. It would have
been welcome to discover the rationales by which Lord Carlile rejects
that view. My understanding of the legal system is that most laws
survive the government that introduces them, so having a set of over
broad laws being passed by a government considered benign can create
just the tools needed by a seriously malign government. The Terrorism
Act in itself, even with too broad definitions, is possibly not a major
risk in and of itself, but combine it with, for instance, the National
Identity Register that will be build as a result of the Id Card Act,
and the National DNA Database, and you can see how the risks
I also find this report disappointing in how it explains that basically
we can't improve much as we're bound by international treaties that are
possibly as bad but that we can't change. There's a bit of a circular
logic which feels like an easy excuse. This is used for the 'Nelson
Mandela test' and for ensuring that state sponsored terrorism remains
(I noticed the publication of this report via SpyBlog's analysis
At the same time the Islamic Human Rights Commission points out
The Islamic Human Rights Commission is very concerned by the latest
terror statistics published by the Home Office according to which, of
1126 arrests made under the Terrorism Act 2000, only 211 have been
charged with terrorism offences with only 40 of those convicted.
IHRC notes that the anti-terror laws are so broad that what would
normally be considered as relatively minor offences have been included
in the 40 successful terror convictions. For example, the statistics
include convictions of individuals for wearing badges bearing the logo
of proscribed organisations related to the conflict in Northern
Ireland, such as the UVF.
I briefly commented on these statistics in Not
enough innocents arrested, let's do an ad campaign