Jonathan Hall QC
How does the law criminalise words or actions seeking to glorify acts of terrorism?
Four terrorist attacks in less than three months has led to renewed questions about the adequacy of the United Kingdom’s counter terrorism laws, not least in the light of what is known about one of the London Bridge attackers, Khuram Butt. Mr. Butt appeared in the Channel 4 documentary ‘The Jihadis next door’ in January 2016. He was shown unfurling an ISIS flag in a London park. Furthermore, he was reported to the police counter-terrorism hotline in 2013 after a confrontation with the Chief Executive of the Ramadhan Foundation outside the Houses of Parliament the day after the killing of Fusilier Lee Rigby. He described the Chief Executive as a traitor to Islam for his condemnation of the killing. This has led a number of commentators to question whether these acts, characterised as ‘glorification of terrorism’, should be made unlawful as part of a broadening of the canon of counter-terrorism law. As put on BBC Radio 4’s Today programme, “why can someone’s words not be criminalised if they glorify acts of terrorism?”
“Why can someone’s words not be criminalised if they glorify acts of terrorism?”
The spectrum of offences created by the Terrorism Acts of 2000 and 2006 is extremely broad. The definition of terrorism contained in section 1 of TACT 2000 and, therefore, the fundamental basis on which all such offence creating provisions are based, could hardly be wider. Any action or threat of action involving serious violence against people, serious damage to property, serious risks to health and safety or serious interference with an electronic system is caught by the definition so long as the relevant conduct is designed to influence a government or intimidate a section of the public anywhere in the world and is done for the purpose of advancing a political, religious, ideological or racial cause.
A moment’s thought will demonstrate that this has the potential to catch a huge range of conduct. Clearly, the religiously inspired killings by ISIS operatives fall within the compass of the Act. Perhaps more controversially (as observed by the Supreme Court in R v Gul [2013] UKSC 64; [2014] AC 1260), a literal reading of the definition would include the use of armed force by the British Army with the aim of bringing down a foreign government, even where that armed force was sanctioned by the UK government. Thus the exercise of prosecutorial discretion about when to initiate proceedings becomes paramount.
The Terrorism Acts do, in fact, contain a number of offences with which Khuram Butt may have been charged if one assumes that his conduct did, indeed, amount to the glorification of terrorism. Some require a direct link between the conduct and a proscribed terrorist organisation. These include membership of a proscribed organisation (section 11 of TACT 2000), supporting a proscribed organisation (section 12 of TACT 2000) and wearing a uniform associated with a proscribed organisation (section 13 of TACT 2000).
Others, however, require no such link. Section 1 of TACT 2006 deals specifically with the direct or indirect encouragement of terrorism (subject to the same broad definition) by a person publishing a statement. Indirectly encouraging acts of terrorism includes the glorification of such acts, whether those acts are in the past, the future or referred to in general terms. Both ‘publishing’ and ‘statement’ are defined in the broadest possible terms, the latter referring to a communication of any description. Section 2 of TACT 2006 deals with the dissemination of terrorist publications, in similar terms and, on one view, with even less active input required from the offender. Simply forwarding an email with an attachment containing material glorifying terrorist acts will suffice.
The limiting factors in relation to glorification in both these offences is that the glorification must be capable of bearing a reasonable inference by the recipient that the conduct glorified should be emulated. Furthermore, the offender must intend or be reckless that his conduct will encourage acts of terrorism. Thus a hypothetical scenario in which a person glorified a terrorist act to a committed anti-jihadist recipient would be unlikely, on the face of it, to fulfil the elements of the offence. It is likely that the person’s intention would be to demonstrate their own bona fides as an extremist rather than to encourage the recipient to commit acts of terrorism.
The person may also have hoped that third-party onlookers watching the glorification in real time, or via a recording of the incident, would be encouraged to adopt a more aggressive stance in their dealings with non-extremist members of society. Such a stance could normalise or subtly encourage hostility, which at its worst might take the form of violence. But that is also unlikely to amount to an offence. The UK has not adopted the German model of criminalising symbols or “means of propaganda” which might further the aims of national socialism. It remains to be seen if the UK decides to adopt a model that targets any activity that, however indirectly, furthers the aims of extremism.
Newsessentials Blog 
Posted on April 30, 2024
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