Has the definition of terrorism really stood the test of time?

In Parliament last week, Minister of State for Security Dan Jarvis stated the following during the debate about whether to proscribe Palestine Action (MPs voted in favour of Prescription as did members of the House of Lords and as a result, Palestine Action is now a Proscribed organsation):¹

‘The UK’s definition of terrorism was established in law a quarter of a century ago, and it has stood the test of time and extensive scrutiny since’

Following a summary of the definition of terrorism, he went onto state:

‘Successive Independent Reviewers of Terrorism Legislation have upheld the UK’s definition of terrorism as effective and fit for purpose even as the threat from terrorism has evolved.’

This is just not true, the Supreme Court has recommended that Parliament change the definition of Terrorism. Independent Reviewers opinions on the definition differ as well.

What is the UK’s definition of Terrorism?

S.1 of the Terrorism Act 2000 defines Terrorism as:²

The use of threat of an action which is designed to influence the government, or an international governmental organisation or intimidate the public/ a portion of the public and it is done or threatened for the purpose of ‘advancing a political, religious racial or ideological cause’.

If the action involves firearms or explosives, it is presumed that the act of threat of the act is designed to influence the government, or an international governmental organisation or intimidate the public/ a portion of the public.

Actions covered by S.1 can take place outside the UK.

The action in the definition above must be one of the following:

• An act which causes serious violence against a person.
• An act that causes serious property damage.
• An Act which endangers a person’s life other than the person committing the action.
• An act which creates a serious risk to the health or safety of the public/ section of the public.
• An act which is designed seriously to interfere with or seriously to disrupt an electronic system.

This definition has been amended since it was passed in 2000 in the following ways:

• Intent to influence a international governmental organisation was added in 2006.
• Racial cause was added in 2008.

R v Gul:³

R v Gul is a UK Supreme Court (UKSC) case from 2013 which is a criminal appeal of Muhhammed Gul of a conviction under S.2 of the Terrorism Act 2006. The appeal was about the meaning of the aforementioned S.1 definition of Terrorism.

S.2 of the 2006 act prohibits distribution or circulation of a terrorism publication.⁴ The following videos had been uploaded onto the internet from Mr Gul’s computer at the time his home was searched by police:

• Attacks by members of Al-Qaeda, the Taliban, and other proscribed groups on military targets in Chechnya, and on the Coalition forces in Iraq and in Afghanistan.
• The use of improvised explosive devices (“IEDs”) against Coalition forces.
• Excerpts from “martyrdom videos”.
• Clips of attacks on civilians, including the 9/11 attack on New York. These videos were accompanied by commentaries praising the bravery, and martyrdom, of those carrying out the attacks, and encouraging others to emulate them.

Mr Gul’s main defence was that ‘although he did not agree with the targeting of and attacks on civilians, he believed that the use of force shown in the other videos was justified as it was being employed in self-defence by people resisting the invasion of their country.’³

The main question at law of his appeal is this:

‘Does the definition of terrorism in section 1 of the Terrorism Act 2000 operate so as to include within its scope any or all military attacks by a non-state armed group against any or all state or intergovernmental organisation armed forces in the context of a non-international armed conflict?’

• Non state armed group = A party to an armed conflict that is not associated with a state.
• Non-international armed conflict = A armed conflict that does not involve two or more state parties.

For Mr Gul to be found guilty of offences under S.2 of the Terrorism Act 2006, the jury must have concluded that the videos were encouraging or inducing persons to commit, prepare or instigate “acts of terrorism”, and Mr Gul has intended that effect or had been reckless to whether that consequence occurred.

Therefore, if some of the acts in the videos were not terrorism, then it is possible that he would have been acquitted of some of the S.2 offences that he was convicted off.

Prosecution’s argument against his appeal:

The definition of terrorism is broad as the result of the language used by Parliament. Therefore it would be wrong for the court to imply restrictions into the definition that do not exist.

This is in effect a parliamentary sovereignty argument: parliament intended for the definition of terrorism to be broad therefore the courts, out of respect for parliamentary sovereignty, should not seek to make that definition more narrow than parliament intended.

Therefore, Mr Gul should remain convicted of the offences that the jury found him guilty of.

Mr Gul’s argument:

Mr Gul’s made three arguments as part of his appeal. Both international legal arguments are addressed together.

The definition of terrorism is too broad as a matter of International law:

Mr Gul first argued that Terrorism Act 2000 and 2006 were passed into law, in part,to give effect to the international treaties about terrorism that the UK has signed.

Terrorism in international law does not extend to attacks by Non-state armed groups against state of inter governmental organisation forces during a nn international armed conflict. Therefore this limitation applies to the S.1 definition of terrorism.

As a result, the acts in the videos are not terrorism because they were attacks by non state parties on state of multi-state (in the case of the coalition forces) and as a result, international law does not deem those acts terrorism. As the S.1 definition is meant to give effect to international legal obligations, acts which are outside the international legal scope of terrorism, cannot be terrorism under that definition.

He also argued that UK domestic law shouldn’t criminalise acts abroad unless it is also criminal by international legal standards. S.1 can apply to actions outside of the UK, which is unusual, normally the criminal law only applies within the jurisdiction.

The UKSC stated the major issue with both arguments is there is no international consensus on what terrorism is.⁵ The court examines a number of treaties in detail and the attempts by the UN to create an international definition of terrorism as well as international humanitarian law. Those details are omitted for brevity but you can find them on pages 18 to 20 of the R v Gul judgement linked below.

Generally, the UKSC noted, there are specific definitions for the purposes of specific treaties on terrorism financing or hijacking for example. The definitions in those treaties only apply to matters relevant to those treaties not to terrorism generally.

While there is significant support for the idea that terrorism does not include “freedom fighters” or insurgents at international law as Mr Gul argued, any such support falls far short of amounting to a general understanding which could be properly invoked as an aid to statutory interpretation.

Therefore the court rejected this argument.

Furthermore, the UKSC acknowledged that parts of the Terrorism Act 2000 were passed to give effect to international law, the argument that this entails a narrowing of the definition of terrorism has two problems highlighted by the UKSC:

• There is no reason why the UK government cannot legislate beyond what international law requires. This practice even has a name: gold-platting and it is permitted under international law. Therefore it is within their power to adopt a broader definition of S.1.
• If S.1 conflicts with international law, it should be narrowed for the purpose of applying that provision of international law rather than being narrowed generally as Mr Gul is arguing.

Again while parts of the Terrorism Act 2006 were enacted to give effect to international law, the offence Mr Gul was convicted of, S.6 was not. Even if this is wrong, there is nothing that preventing parliament from carrying out gold-platting as explained above.

The UKSC declined to consider the question of whether the UK can consider acts abroad as terrorism under S.1 as it is not an issue affecting Mr Gul, he is a UK citizen and the act was committed here.

Under domestic law, the S.1 definition, given its breadth should be narrowed :

The breadth of S.1 has been noted in a number of legal cases. Mr Gul argued it is so broad it should be narrrowed by the UKSC.

For example in R v F,⁶ the court stated ‘What is striking about the language of section 1, read as a whole, is its breadth.’ and went onto highlight the fact it covers all countries aboard, regardless of the nature of their government and the nature of this relations with the UK government nor does it recognise the concept of “terrorism for a just cause”.

The UKSC notes the include of all serious violence and property damage in particular if done with intent to intimidate a government or an international-governmental organisation seems to cover a wide range of conduct. The court notes this can cover activity designed to lead to regime change, even if its supported by the UK government.

This has been a persistent issue in several terrorism trials. For example, Bherlin Gildo was acquitted of possessing terrorist information, attending a terrorist training camp and receiving weapons training because his barrister Henry Balaxland KC argued successfully:

‘If it is the case that HM government was actively involved in supporting armed resistance to the Assad regime at a time when the defendant was present in Syria and himself participating in such resistance, it would be unconscionable to allow the prosecution to continue.⁷

The UKSC highlighted that S.1 is so broad that actions that the public might be more understanding of, such as acts that target oppressive regimes, may fall within S.1. This argument was made and rejected in R v F, where the appellant argued that the governments referenced in S.1 can only be democratic governments and because the material likely to be useful for terrorism that he was convicted of possessing, targeted the Libyan government, which is not democratic, his actions couldn’t constitute terrorism. Despite noting the breadth of S.1 as noted above, the court upheld his conviction because all acts regardless of the nature of the government that meet the definition in S.1, constitute terrorism.

The prosecution responded to Mr Gul’s arguments by arguing:

• Given the changing nature of terrorism and terrorist techniques, the broad definition is justified.
• They went onto state there are additional protections to prevent prosecution of acts that should not be prosecuted such as under S.117 of the Terrorism Act 2000, prosecution for acts within the UK has to be approved by the Director of Public Prosecution or the Attorney General if the acts happened abroad. This is in effect a reason why the definition is so broad.

The UKSC discussed the views of the Independent reviewer of terrorism legislation who have broadly agree with the scope of S.1.

The Independent Reviewers role is to inform the public and political debate on anti-terrorism law in the United Kingdom. It is a independent role that allows for opinions to be collected about how the law works from ministers to those subject to counter terrorism powers. For more information you can see the Independent reviewers website: https://terrorismlegislationreviewer.independent.gov.uk/about-me/.

The UKSC highlighted the view of Lord Carlile of Berriew KC, who was the first Independent reviewer, who acknowledged the breadth of S.1 but also believed that S.117 (as discussed above) was a real check on any potential misuse of S.1.

Mr David Anderson KC, the current independent reviewer in 2013, acknowledged he breadth of S.1 as well as the fact the definition is so broad that acts might be terrorism according to S.1 ’even when they might otherwise constitute lawful hostilities under international humanitarian law (e.g. acts of violent rebellion against oppressive governments)’.⁷ Like Lord Carlile, he stated the main mitigation is the requirement for consent under S.117 as described above. However he did concluded that there was a case for ‘shrinking’ the definition.

In a later report, Anderson KC stated ‘remarkably broad – absurdly so in some cases’ which grants those concerned with counter terrorism decision making ‘unusually wide discretions to all those concerned with the application of the counter-terrorism law’ but that this discretion is normally exercised properly.⁸ He stated reform of S.1 would necessitate reform of other areas of counter terrorism law.

The UKSC did not agree with the prosecutions argument about prosecutorial discretion being an ‘additional’ protection against prosecuting individuals who should not be prosecuted for terrorism.

• It would mean parliament, the body responsible for law making, have delegated authority to an unelected lawyer (in the case of the DPP) to determine whether something is criminal for the purposes of prosecution which is unattractive.
• In the case of the Attorney General, while they are accountable to parliament, their decision making is not as transparent as parliaments which takes place in public.
• It leaves the public unable to know whether they conduct will actually be prosecuted as terrorism because they are unable to know how prosecutorial discretion will be exercised.
• It could lead to executive powers such as powers to detain due to suspicion of involvement in terrorism being legally questionable if they do not lead to prosecution, which appears incorrect.
• The criminal activity occurs well before any prosecution, and therefore any consent for prosecution is given. The activity in question is criminal the moment all the elements of the offence are present.

The court ultimately rejects Mr Gul’s argument about the breadth of S.1 requiring their intervention to narrow its application because:

‘it is difficult to see how the natural, very wide, meaning of the definition can properly be cut down by this Court.. the definition of “terrorism” was indeed intended to be very wide.’

Furthermore, parliament addressed the breadth of the definition of terrorism at the time the 2000 Act was passed. Parliament declined to amend the definition since 2000 and there have been several opportunities to do so.

The court attached no importance to the provisions of S.117 as a safeguard because it is not a reason for the wide meaning of terrorism.

The UKSC did state that the definition is subject to the European Convention on Human Rights but Mr Gul did not make any arguments about S.1’s application violating his rights under the ECHR so they declined to address this issue.

The court did however express concerns about both the 2000 and 2006 Terrorism Acts:

The returned to David Anderson’s first report as Independent Reviewer where he noted that other countries have chosen to exclude ’exclude activities sanctioned by international law from the reach of terrorist activity’ citing the Canadian and South African Criminal Codes.

In his second report, Anderson KC mentioned the ‘potential application of the Terrorism Acts even to UK forces engaged in conflicts overseas’ and noted Australia recently changed its laws o create an exception for this kind of activity.

The court supported a re-examination of S.1 in light of both issues identified by Mr Anderson KC’s reports. In their view:

‘Any legislative narrowing of the definition of “terrorism”, with its concomitant reduction in the need for the exercise of discretion under section 117 of the 2000 Act, is to be welcomed, provided that it is consistent with the public protection to which the legislation is directed.’

The court also stated that the 2000 and 2006 acts give the state the ability to sue very intrusive powers with regard to immigration and the police. They highlighted schedule 7, which is the power to stop and detain persons at borders regardless of if there was suspicion they were involved with terrorism and the effect that detention under schedule 7 will have on the right to liberty. The need for these powers was understandable in their view to deal with the threat of terrorism but:

’the fact that the powers are so unrestricted and the definition of “terrorism” is so wide means that such powers are probably of even more concern than the prosecutorial powers to which the Acts give rise.’

Since 2013, the definition of terrorism remains unchanged, therefore all of the issues highlighted by the court remain issues with the definition of terrorism today. Therefore, what the minister said before parliament is false, there has been criticism of the breadth of S.1 by the UKSC. The independent reviewers have also highlighted issues with the definition, see the sections of David Anderson’s reports highlighted above.

Multiple independent reviewers since 2013 have also highlighted the breadth of S.1 including Max Hill KC who went onto be DPP and the current incumbent Jonathan Hall KC.⁸

So the minister was wrong that the definition of terrorism has withstood scrutiny, it has been criticised by our highest court and the independent reviewers whom are responsible for ensuring counter terrorism law works effectively. The issues discussed by the UKSC and the independent reviewers remain relevant. People are still being prosecuted for activities in support or associated with groups the UK itself supported including groups involved in the coalition against ISIL.⁹ Schedule 7 powers are often used in a discriminatory fashion and this could very well have implications for the right to liberty as the UKSC highlighted.¹⁰

Furthermore, Antonio Cocco highlighted that the definition of terrorism may violate the ECHR. In his view the court stating that the practice of gold platting is permitted under international law is misleading as the UK is bound by human rights law.¹¹ In a blog post about the R v Gul he stated:

‘The definition is so broad that, despite the contrary stand taken by the Supreme Court (§ 36), it ultimately delegates to the Prosecution the decision as to what constitutes a criminal act of terrorism. The case law of regional human rights bodies (including the European court of Human Rights) has already warned against such wide definitions of criminal offences’

So perhaps it is time to amend the UK definition of terrorism?