A note on terrorism and Alexander Litvinenko

The death of Alexander Litivinenko set me thinking about the recent UK legislation on terrorism, not in terms of the killing of Litvinenko but in relation to his own conduct while in the UK.  

Westminster passed the Terrorism Act in 2000.  This legislation lies at the heart of the UK government’s “war on the abstract noun”.  The Terrorism Act introduced a wide definition of “terrorism”.  It defines terrorism in section 1

This section provides

1. – (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 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 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.
 (3)     The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.
 
  (4)    In this section-
 
 
    (a) “action” includes action outside the United Kingdom,
 
    (b) a reference to any person or to property is a reference to any person, or to property, wherever situated,
 
    (c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and
 
    (d) “the government” means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.
   (5)   In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.

Terrorism is defined in this Act not just as acts against the government or the populace but also threats against the government where these threats would relate to violence against the person, damage to property, endangering life, or a serious risk to the health or safety of a section of the public.  However, when you start to look closely at the wording of subsection (1) you see that it does not just cover threats to the government but threats “designed ot influence the government”.  Okay, you may say.  The state should not be held to blackmail.  But when we look at subsection (4) things start getting a little concerning.  The threats can relate to matters outside the UK, the populace that is threatened can be a section of public from any county, not just the UK.  And terrorism in the UK includes a threat against a foreign government (such as the former Iraqi administration?).  Anyway, you may think this definition is not that worrying.  After all it’s about actions, about threats.  And it may not seem unreasonable to criminalise those in the UK that are acting for the overthrow of foreign governments by force.   

However, it does not end there, because as part of the regular need to be seen to be doing things in the war against abstract nouns earlier this year the UK Parliament passed the Terrorism At 2006

The 2006 Act introduces a new offence (controversial during its progress thorugh Parliament but conveniently yesterday’s fish and chip paper and consequently off the radar for UK subjects).  This ACt includes under section 1 a new offence of “encouraging terrorism”, which can be committed on-line and lead to much wailing and gnashing of teeth.  

The 2006 Act, section 1 offence is broadly defined.

Encouragement of terrorism
 
  (1)    This section applies to a statement that is likely to be understood by some or all of the members of the public to whom it is published as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism or Convention offences.
 
   (2)   A person commits an offence if-
 
 
    (a) he publishes a statement to which this section applies or causes another to publish such a statement; and
 
    (b) at the time he publishes it or causes it to be published, he-
 
      (i) intends members of the public to be directly or indirectly encouraged or otherwise induced by the statement to commit, prepare or instigate acts of terrorism or Convention offences; or
 
      (ii) is reckless as to whether members of the public will be directly or indirectly encouraged or otherwise induced by the statement to commit, prepare or instigate such acts or offences.
     (3) For the purposes of this section, the statements that are likely to be understood by members of the public as indirectly encouraging the commission or preparation of acts of terrorism or Convention offences include every statement which-
 
 
    (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 by them in existing circumstances.
   (4)    For the purposes of this section the questions how a statement is likely to be understood and what members of the public could reasonably be expected to infer from it must be determined having regard both-
 
 
    (a) to the contents of the statement as a whole; and
 
    (b) to the circumstances and manner of its publication.
    (5)   It is irrelevant for the purposes of subsections (1) to (3)-
 
 
    (a) whether anything mentioned in those subsections relates to the commission, preparation or instigation of one or more particular acts of terrorism or Convention offences, of acts of terrorism or Convention offences of a particular description or of acts of terrorism or Convention offences generally; and,
 
    (b) whether any person is in fact encouraged or induced by the statement to commit, prepare or instigate any such act or offence.
  (6)    In proceedings for an offence under this section against a person in whose case it is not proved that he intended the statement directly or indirectly to encourage or otherwise induce the commission, preparation or instigation of acts of terrorism or Convention offences, it is a defence for him to show-
 
 
    (a) that the statement neither expressed his views nor had his endorsement (whether by virtue of section 3 or otherwise); and
 
    (b) that it was clear, in all the circumstances of the statement’s publication, that it did not express his views and (apart from the possibility of his having been given and failed to comply with a notice under subsection (3) of that section) did not have his endorsement.
  (7)     A person guilty of an offence under this section shall be liable-
 
 
    (a) on conviction on indictment, to imprisonment for a term not exceeding 7 years or to a fine, or to both;
 
    (b) on summary conviction in England and Wales, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum, or to both;
 
    (c) on summary conviction in Scotland or Northern Ireland, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum, or to both.
   (8)   In relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003 (c. 44), the reference in subsection (7)(b) to 12 months is to be read as a reference to 6 months.

The key provision is subsection (1).  It is an offence if there is “a statement that is likely to be understood by some or all of the members of the public to whom it is published as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism”.  So, do the public think a statement is an encouragement commit or prepare an “act of terrorism” (which we are told by section 20 is defined in accordance with s 1 of the Terrorism Act 2000)?  Not every statement will make the position blatantly clear.  Sometimes it is criminal if, through innuendo the public feel that a statement is indirectly encouraging terrorism.  In assessing if a statement is to be understood as indirectly encouraging terrorism the section directs us to consider whether the statement glorifies terrorism, and the context of the publication is all.

Now, what has this to do with Alexander Litvinenko?  Litvinenko’s biography is now well known – a former Russian secret service agent who defected to the UK and criticised the Russian government.  I do not wish to comment on Litivinenko as an individual, nor on the manner of his death; but it occurs to me that under the terms of UK terrorism legislation Litivinenko arguably fits within the definitions.  He published regular articles criticising the Russian government and supporting the Chechen forces – those very same forces that are trying to remove the Russian government from the territory.  His published articles on Putin (the head of a foreign government) made various unsavoury allegations about Putin (a quick Google search will confirm the nature of these) and called for his overthrow with “mother Russia” being revived.  

Now, I may be missing something, but writing and publishing articles calling for the overthrow of a government – in at least part of its sovereign territory – and supporitg those that have used various means to persuade the Russians to leave seems to me to fall within the 2006 Act offence.  

At the time the legislation was in Parliament it was pointed out that during apartheid SOuth Africa support for the ANC could potentially have been a s 1 of the 2006 ACt offence – given the stated aims and practice of the ANC in overthrowing the National Party government.  MPs were assured this wasn’t the case.  Testing the legislation in one topical case suggests otherwise.  So would Reagan type backing for Contra rebels have breached the 2006 Act?  Or support for Kurds within Iraq or Turkey?  

Our terrorism legislation is a mess.  And fom the posturing before the Queen’s Speech it looks like there is more to come.

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About loveandgarbage

I watch the telly and read when not doing law stuff and plugging my decade and a half old unwatched Edinburgh fringe show.
This entry was posted in alexander litvinenko, civil liberties, encouraging acts of terrorism, terrorism, terrorism act 2000, terrorism act 2006, Uncategorized. Bookmark the permalink.

6 Responses to A note on terrorism and Alexander Litvinenko

  1. thunderbox says:

    MPs were assured this wasn’t the case.
    I remember being confused by this at the time, did the assurances make any kind of sense?

    • NO, but they were sufficient to appease some backbenchers who prefer reliances from ministers rather than the wording of the provisions in front of them. One Labour MP whose late husband had been under house arrest in SOuth AFrica voted against the provisions for the reason that support for the ANC would in her view have been criminalised.
      The poor quality of the end product is sadly testament to the quality of our legislators and the ministers that force these things through.

      • thunderbox says:

        I was horrified for similar reasons.
        How do we fix this? Presumably someone has to go down the steps for supporting an entirely peaceful and ethical organisation mis-labelled as terrorists, and then we all jump up and down and protest?

        • The difficulty with any bad criminal law and its removal from statute is that prosecutors have a great deal of discretion and – in my experience in Scotland – have more sense than to prosecute. Disuse can then suggest that a provision is serving its purpose.
          An additional point on the drafting of the provision occurs to me. In a system where political figures are involved in the prosecution system the references to foreign governments necessarily involves a political element/judgment. Would a threat to the government in Syria or Iran be treated in the same way as a threat to Germany or the USA?
          Do you know if Khomenei was based in London prior to his return to Iran? If so, he too – in his call for the overthrow of the Shah – would have been a figure potentially libale to prosecution. Whether this is a good or bad thing necessarily involves political value judgments and would – as an aspect of criminal law – indicate this is an undesirable law.

  2. Anonymous says:

    terrorism law
    Thank you for a very interesting article.

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