Chapter 26 Guidance on answering the exam questions

1. You are asked to advise the Home Secretary on any changes that may be necessary to ensure that counter-terrorism law is compatible with Article 10 (the right to freedom of expression, see Chapter 17). In your report:

1. identify and describe the legal provisions, civil or criminal, which have the capacity to interfere with freedom of expression;
2. consider whether they can be applied in ways that are compatible with Article 10; and
3. (c) make any recommendations for reform that you consider necessary (or explain why, in your view, no such changes are necessary.
• This question requires the demonstration of a wide knowledge of aspects of counter terrorism law along with a more detailed consideration of a particular aspect; and a knowledge of the application of Article 10 in this context.
• A brief outline of Article 10 – what rights, specifically, it guarantees and the terms under which these rights can be restricted.
• (a) Aspects of UK counter terrorism law that can have an impact on right to freedom of expression can include proscription (banning political organisations), TPIMS (measures can include preventing both expressive acts and the right to receive information), and stop and search powers which can be used in the context of political demonstrations. A general critical point against such special measures is that they may be used to “chill” freedom of expression in the context of ordinary, non-terrorist, political activity.
• A point of particular importance which engages directly with Article 10 is the offence of encouraging terrorism through glorification (Terrorism Act 2006). This is the UK’s response to the European Convention on the Prevention of Terrorism.
• (b) There are clearly problems concerning compatibility with Article 10, especially regarding the glorification offence.
• Article 10 requires that interferences with freedom of expression must be “proscribed by law”. In particular, this means that the law must be foreseeable in its application. It can be doubted whether terms such as “glorification” meet this requirement because they are too open ended. The definition of glorification is also linked to the definition of terrorism, which has also needed legal interpretation and clarification (see R v Gul).
• It may be unsatisfactory in terms of necessary safeguards, to leave the compatibility of the law with Convention rights with the discretion of the prosecution authorities.
• Another aspect of compatibility relating to the 2006 Act is whether the offence of glorification is “necessary”. Already, under the Offences Against the Person Act 1867, soliciting, etc., murder is an offence. The Act might be thought of as an additional restriction of free expression which is not “necessary” in a democratic society. The answer here is that the foreseeable application of the law may benefit from a tailor-made statute, passed in the light of recent events and which goes beyond just murder.
• In conclusion –it could be the case that reforms that clarify the application of the offence would be helpful.

2. Describe the post-2010 reforms of counter-terrorism law and the reasons for the reform. Consider whether the law following those reforms is reasonable in the circumstances and not oppressive.

• Begin by placing the post-2010 in context – a sense that UK counter-terrorism law was too draconian led to the McDonald Review in 2010 which in turn led to some fairly significant changes to the law.

• Changes include: replacing control orders with TPIMS. These are a little less onerous and provide somewhat more stringent judicial control and also place more emphasis on the reasons for not being able to prosecute.

• Changing the power of random stop and search. This now, in a terrorist context, is triggered by a higher threshold requirement (reasonable belief rather than simple expediency).

• Changing the power of detention of terrorist suspects for questioning so that, now, the maximum period is 14 rather than 28 days.

• Restricting the powers of organisations not directly connected to the police and security services, such as local councils, to conduct surveillance.

• There are a number of other measures, too.

• The reasons for these reforms were that the previous law was considered to be unnecessarily severe in relation to the threat.

• The argument is that any possible Convention difficulties are resolved by these changes (Convention rights were specifically in mind when they were enacted).

• But it should be noted, firstly, that the reforms have not prevented additional special powers to be enacted such as the Counter-Terrorism and Security Act 2015 which, amongst other things, gives powers to prevent British subjects leaving the UK to fight abroad.

• Secondly, it should be noted that, following suggestions in the Review, various draft bills are available which allow for more stringent powers in the context of a serious and increased threat. These are available for Parliament to enact swiftly if the circumstances so require.
• In conclusion: the changes have certainly ameliorated the most severe aspects of counter-terrorism law but, nevertheless, considerable special powers remain. The changes do not really affect the position of those who consider that special powers are unnecessary and that terrorism should be countered by the ordinary law and not by measures that even to a small degree ape those of the terrorist.