New offence needed

Terrorism reviewer recommends law to catch loners planning mass killings

The independent reviewer of terrorism legislation has recommended the creation of a new offence of preparing to carry out multiple killings. It would allow a lone plotter to receive life imprisonment. But Jonathan Hall KC has advised the home secretary that the definition of terrorism is already wide enough and should not be extended.

His recommendations have been made in response to the murders that sparked the Southport riots last summer.

Axel Rudakubana (Merseyside Police)

Rudakubana

In January, Axel Rudakubana pleaded guilty to three charges of murder and 10 charges of attempted murder at a Taylor Swift-themed dance class. He also admitted possessing a knife, producing a biological toxin and possessing an al-Qaeda training manual.

The prime minister commented shortly afterwards:

When I look at the details of this case — the extreme nature of the violence; the meticulous plan to attack young children in a place of joy and safety; violence clearly intended to terrorise — I understand why people wonder what the word “terrorism”means.

And so, if the law needs to change to recognise this new and dangerous threat then we will change it, and quickly.

The home secretary added:

It is for the police and Crown Prosecution Service to decide whether individual cases meet the definition set out in the Terrorism Act 2000 when making charges, but given the growing number of cases where perpetrators are seeking to terrorise, even without a clear ideology, we need to ensure that the law, powers and sentencing are strong enough to cope. I have therefore asked the independent reviewer on terrorism powers to examine the legislation in this area in light of the modern threats we face.

Sentencing Rudakubana to a minimum term of 52 years, Mr Justice Goose said:

The prosecution have made it clear that these proceedings were not acts of terrorism within the meaning of the terrorism legislation because there is no evidence that Rudakubana’s purpose was to advance a political, religious, racial or ideological cause. I must accept that conclusion.

Jonathan Hall KC

Terrorising

In a report published this morning, Hall responded to the concerns raised by Sir Keir Starmer and Yvette Cooper. Nowhere in the definition of terrorism was there any reference to “terrorising”, he said. “Terrorism can obviously be committed without terrorising, and for some types of terrorism — for example, attacks on electronic systems — the effect would rarely be terrorising, however harmful to national security.”

Definition

Terrorism is defined in legislation passed 25 years ago. This says, in part:

(1) In this Act “terrorism” means the use or threat of action where–

(a) the action falls within subsection (2),

(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.

(2) Action falls within this subsection if it–

(a) involves serious violence against a person,

(b) involves serious damage to property,

(c) endangers a person's life, other than that of the person committing the action,

(d) creates a serious risk to the health or safety of the public or a section of the public, or

(e) is designed seriously to interfere with or seriously to disrupt an electronic system.

So there are three limbs to terrorism:

1. There must be a use or threat of “action” that reaches a certain threshold of seriousness.

2. The use or threat of action must occur on a wider scale than just the

   personal.

3. The use or threat must be made for the purpose of advancing a political, religious, racial or ideological cause.

It was the third limb that could not be established in Rudakubana’s case.

Redefinition of terrorism would alter the landscape, Hall advised the home secretary:

It would risk major false positives — the prosecution of people who by no stretch of the imagination are terrorists — and extend terrorism liability into novel terrain. For example, any person who glorified “extreme violence” would be at risk of arrest and prosecution as a terrorist. People swapping violent war footage would be at risk of encouraging terrorism, resulting in unacceptable restrictions on freedom of expression.

Hall listed a number of “strong and decisive considerations” against changing the terrorism definition:

Amendment would demand, at the very least, a literature review, a public consultation, a comparative exercise, an exhaustive review of all the legal provisions and policies that might be impacted, and the closest consultation with government, the police and the intelligence agencies on the organisational impact.

The risk of unintended consequences through rushed reform is extremely high.

Lone plotters

But Hall had an alternative suggestion. He observed that the law penalised people who plotted together but it was not an offence to plan for an attack to be carried out on one’s own, however serious it might be. “This means,” he added, “that no prosecution would be available if the police raided an address and found careful handwritten but uncommunicated plans for carrying out a massacre.”

It had become clear to him during the early part of this year that there was “a real and not theoretical gap for lone individuals who plan mass killings”.

He continued:

I therefore recommend that the government considers bringing forward legislation to create a new offence where an individual, with the intention of killing two or more persons, engages in any conduct in preparation for giving effect to this intention. The maximum sentence should be life imprisonment.

Misconceptions

Hall had begun his report by scotching some popular misconceptions.

1. There is no offence of “terrorist murder”. All murders are prosecuted as such, whether or not they involve terrorism.

2. Terrorism is not a label for the most serious offending. Serial killings are very serious without necessarily being terrorist.

3. The true purpose of the terrorism definition is to unlock special powers of early intervention.

4. Terrorism charges can be proved only if there is sufficient admissible evidence.

5. It is not possible to predict and prevent murders by assessing an individual’s online browsing habits.

Advice

Hall also offered advice to police forces:

In the digital era, if the police do not take the lead in providing clear, accurate and sober details about an attack like Southport, others will. Social media is a source of news for many people and near silence in the face of horrific events of major public interest is no longer an option.

Following Southport, the disinformation generated on social media, combined with widespread allegations of a “cover-up”, risked far more prejudice to any trial than the placement of undisputed facts about the attacker in the public domain. Whether or not the Contempt of Court Act 1981 needs reform, the nature of prejudice in the digital age needs to be understood.

Last week, the government’s independent law reform advisers responded to concerns raised by national policing organisations and the government that the riots in Southport last summer might have been quelled if the police had been able to release more information about Rudakubana.