MAX HILL QC, INDEPENDENT REVIEWER OF TERRORISM LEGISLATION
TASM Speech 27th-28th June 2017
There can be no doubt that social media plays a pivotal role in communication between those intent on terrorism, just as it is pivotal in the daily lives of most of us as we go about our lawful business. In that simple truth lies the dilemma which we face at this Conference. We all deplore the outbreaks of terrorist violence we have witnessed in four vicious attacks since March 22nd this year, the most recent of the four emanating from Wales, though there is little more we can say now that the case has been charged and is before the courts. We should remember, however, that five terrorist plots were successfully disrupted by the Police and security services during the same period, the last three months. And we all come together with renewed determination to face down the menace of modern terrorism. Where these awful crimes are facilitated by the use of social media, we want to close down the criminals ability to communicate. And yet, we must recognise that policing the internet, and controlling social media comes at a very high price if it interferes with the freedom of communication which every citizen enjoys, and which is also enshrined in Article 10 of the European Convention on Human Rights.
Let us go straight to the limiting provision within Article 10, remembering that freedom of expression is not a fundamental right. Article 10(2) reads: The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime’ etc etc.
So, have we reached the point at which we need to legislate for further interference with Article 10?
Before we can answer that question, we should remember that statute already interferes with Article 10, where necessary and proportionate. Consider section 2 of the Terrorism Act 2006, the criminal offence of disseminating terrorist publications.
What is a terrorist publication? It is defined in section 2(3), ‘if matter contained is likely..(a) to be understood as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism (CPI), or (b) to be (so) useful, and to be understood by some or all as …wholly or mainly for the purpose of being so useful…
A person commits the offence by (section 2(2)) distributing or circulating such a publication, which includes (section 2(2)(e)) transmitting the contents electronically, and when he or she (section 2(1)(b and c)) intends an effect of the conduct to be a direct or indirect encouragement for CPI, or when he intends to provide assistance in CPI.
The section 2 offence works in practice. One of the significant decided cases in this area (which I prosecuted myself) was R v Faraz, tried at Kingston Crown Court in 2011 and reviewed on appeal in  1 CrAppR 29. At trial, section 2 was ‘read down’ for compatibility with Article 10 in a number of ways, for example by requiring that the words ‘acts of terrorism’ in section 2 must mean criminal offences, not any lesser form of conduct. There were a number of further revisions, made by Calvert-Smith J after submissions which had considered a comparative analysis from many legal jurisdictions. The Court of Appeal later held that it was not arguable that a publication that to the knowledge of the defendant carried a real risk that it would be understood by a significant number of readers as encouraging terrorist offences was entitled to exemption because of Article 10, just because it expressed political or religious views.
Therefore, through laws already on the statute book, it is both possible and compatible with ECHR for investigators and prosecutors to reach into social media and the internet for material which can properly be brought before the court.
The question for us is how much further if at all should legislation go into this arena?
A quick review of the social media imprint within recent criminal prosecutions might be helpful. I therefore looked through all of the successful terrorism prosecutions brought by the CPS last year, 2016. Allow me to discuss the relevant aspects of some of those cases now, because they indicate both how prosecutors are currently dealing with social media as evidence, and they set the context for any consideration of where we go from here.
So, a sentence or two on some of the cases from 2016.
Tarik Hassan and Suheib Majeed, the latter a physics undergraduate at Kings College London, used a variety of secure and encrypted systems to communicate with each other (Hassane was studying in Khartoum) concerning their plot to carry out terrorist murders in London using a silenced firearm. The evidence included online reconnaissance of a police station and Territorial Army barracks. Charged with conspiracy to murder and preparation of terrorist acts under section 5 of the Terrorism Act 2006.
Tareena Shakil, 26 and the mother of an 18 month old son, became prolific on social media in support of Daesh. Her messages included an exhortation ‘to take to arms and not the keyboard’. She took her son to Turkey and on to Raqqa in Syria, joining Daesh and using the internet both to maintain contact with other family members and to glorify Daesh. Charged with encouraging terrorism under section 1 of the Terrorism Act 2006 and belonging to a proscribed organisation namely ISIS under section 11 of the 2000 Act.
Ayman Shaukat engaged in coded communications with men whom he assisted in travelling to Syria. Shaukat drove a co-defendant Alex Nash to the airport and facilitated his desire to join ISIL. Charged with preparation, the section 5 2006 Act offence.
Forhad Rahman assisted a man called Aseel Muthana to leave the UK in order to fight in Syria; the two men first met via social media. Muthana and another made a video on a hill near Cardiff in possession of an imitation firearm, referring to ‘the Islamic State in Cardiff and Iraq and Sham’. Their co-defendant Kaleem Ulhaq used social media to send money to another whom he believed to be fighting in Syria. Charged with preparation under section 5 of the 2006 Act, and in respect of the funding arrangement under section 17 of the 2000 Act.
Junead and Shazib Khan (whom I prosecuted) were inspired and instructed online, firstly on how to get into so-called Islamic State, and secondly in the case of Junead Khan how to access the addresses of soldiers in the UK and how to attack USAF bases in Norfolk. Online Kik conversations spoke of aspirations to seek shahada or martyrdom, together with explicit instructions for ‘mujahid style’ knife and/or pipe bomb attacks. Both men were charged with section 5 of the 2006 Act preparation, and Junead Khan received a life sentence.
Zafreen Khadam was investigated after complaints made to the police that a Twitter account was being used as a tool to post IS propaganda and to encourage others to join IS and instigate acts of violence. This defendant was found to have opened 14 Twitter accounts in one month in the spring of 2015. Extreme content was posted, including a web based IS document encouraging the online dissemination of IS literature in order to support its cause. The document was viewed 1464 times by the time it was captured by the Police as evidence. In addition, the defendant used WhatsApp to send material including execution videos. Charged with ten counts of section 2 dissemination.
Mohammed Alam used Paltalk messenger to send links to an ISIS video. Charged with section 2 dissemination on the basis that he was reckless as to whether it would encourage CPI of terrorism.
Mohammed Ameen sent 8000 tweets over 7 months using 16 different Twitter accounts and using 42 different names, expressing support for Daesh. Charged with offences of encouragement under section 1 of the 2006 Act, one count of section 2 dissemination, and one of inviting support for a proscribed organisation under section 12 of the 2000 Act. The judge in passing sentence (five years’ imprisonment) noted that the offending was aggravated by the explicit and intentional nature of the encouragement and by the persistence with which it was pursued.
Naseer Taj used Twitter and WhatsApp, seeking advice on where to go in Syria to satisfy his aim to become a suicide bomber. Charged with section 5 preparation, possession of material under section 58 of the 2000 Act and an offence under section 4 of the Identity Documents Act 2010.
Rebecca Poole used social media to express her desire to marry a jihadi warrior, to travel to Syria to live under ISIS, and to become a suicide bomber. She was later found unfit to plead, but to have been in possession of material under section 58 of the 2000 Act, and sentenced to a restricted hospital order.
Mohammed Uddin travelled to Syria via Turkey, stayed for five weeks then left under pressure to return to his wife in the UK but expressing disappointment with the slowness of progress in Syrian training camps, and his social media messaging indicated an intention to return to Syria in the future. Charged with section 5 preparation.
Mr and Mrs Golamully pleaded guilty to terrorist funding under section 15 of the 2000 Act, having sent money to their nephew who had travelled from Mauritius to Syria to fight for ISIS. They used WhatsApp messaging, and sent money via Western Union.
Abdul Hamid both received and posted Daesh propaganda using his Facebook page. Police investigation revealed that a redacted version of the video was available via BBC and other media outlets, but that the defendant had repeatedly posted the unreacted full version, latterly with a message reading ‘this video is strictly for education purposes only’. Charged with section 2 dissemination.
Aras Hamid, Shivan Zangana and Ahmed Ismail were variously charged with section 5 preparation, identity document offences under the 2010 Act, and failing to disclose information about acts of terrorism under section 38B(1)(b) of the 2000 Act. They used phone and social media contact to discuss and arrange travel to join ISIS, discussing the planned travel with a facilitator abroad.
So that is the range and frequency of offending which sets the context for our discussion, and that is last year; we are yet to come to grips with a full review of the atrocities of 2017.
I have left out, for present purposes, an analysis of sentences passed in these cases, because that is beyond the confines of this conference, though I predict that the available maximum sentences for several of the main statutory offences will feature in the ongoing government review of counter extremism strategy, and some sentencing powers may rise. That said, it does not follow that the review will necessarily lead to the identification of new offences not currently on the statute book. Perhaps that is a discussion for another day, another conference.
Returning specifically to social media and its prevalence in current terrorism offending, it is clear how important this continues to be to investigators and commentators alike. In some of the cases I have analysed briefly above, it is quite possible to observe single days of online communication between defendants and complicit third parties, where those communications range between WhatsApp, Twitter, Telegram, Viber, Kik and more, according to the perception of the participants as to the relative security and encryption levels of these various modern platforms. To catch them at it, we have to keep up with their technical knowledge and the march of progress made by the internet and other communication service providers.
So where do we go next? It seems to me, thinking about the range of statutes in use by prosecutors as shown by recent cases, that we do not lack for legal powers to bring these cases to court. We do need to encourage investigators and prosecutors to use the full range of current powers at their disposal; which is not to say that they are ignorant of what Parliament has provided, but we do need to see the use of financial, identification, fraud, firearms, public order, offences against the person, and conspiracy offences being added to the indictment, in order to capture the full range of criminality represented by future cases. There should be nowhere safe for terrorists to hide. Terrorism-related cases charged in the year ended December 2016 totalled the use of 56 Terrorism Act offences, and 62 non-Terrorism Act offences, in other words where other criminal statutes were used. More of this is the way forward.
I am on record, from when I first came into post as Independent Reviewer in March this year, saying that in general we don’t need more terrorism offences, and there may be examples of redundant terrorism offences which time has proved are not as necessary as Parliament thought. Interestingly, training for terrorism under sections 6 and 8 of the 2006 Act was not charged at all in 2015 or 2016. Inciting terrorism overseas was charged once in the same two-year period. Possession of articles for terrorist purposes under section 57 of the 2000 Act was charged once in 2015 and not at all in 2016. Some revision and trimming of the current legislation may yet be possible, and that would be a good thing.
But I cannot say with certainty whether the ongoing government review will throw up an example or two that legislators have not yet covered. Maybe that will emerge, and it if so it will be my job to take a hard look. It would be foolish to discount the possibility of one or more new offences for a new age, though I am yet to find any.
Which brings us to the big question, whether the investigation and prosecution of terrorists’ use of social media needs specific new laws.
I spent time analysing recent past cases as a way of showing how much is already possible, utilising the laws we already have. To go further, would we risk unenforceable infringements on ECHR rights, and/or would we push the current abundance of evidence proving terrorist activity online to go offline or underground, into the dark chambers of TOR the onion router, impenetrable places within the dark web from which clear evidence rarely emerges, and where the placement of a robust counter-narrative to terrorism is hard to effect and harder to gauge?
This is uncertain territory. Driving material, however offensive, from open availability into underground spaces online would be counter-productive if would-be terrorists could still access it. And once this material goes underground, it is harder for law enforcement to detect and much harder for good people to argue against it, to show how wrong the radical propaganda really is.
Last week, I made a speech at an event hosted by the Oxford Media Network, in which I said this to a large audience including some of our most distinguished security correspondents:
‘In my view, we should all spend less time – in public through the media at least – trying to elucidate the dogma behind these terrible events, and should instead spend far more time seeing these criminals for what they clearly were, criminals or demons, evil doers of evil deeds. There really is no justification for an individual detonating a bomb inside a concert filled with thousands of children and teenagers. We should not waste time in public airing the dogma behind the demonic work of Abedi and his like. Of course, this remains the vital, urgent work of the security services and Police, whose job it is to unpick the dogma, to unearth the radicalisers in person or online, and to stop the next criminal planning an attack, and the next and the next. But by publicising and analysing the dogma for all to see, you are perpetuating the myth that these crimes are for a religious reason, or still worse that they have a justification’.
I stand by those words. When criminals kill and are killed in the act, we should not give them the media platform they may have craved in life but are not entitled to receive in death. I was amongst many who were very pleased to see leading Mosques and British Islamic communities who refused to say funerary prayers for those responsible for the attacks in London and Manchester.
But that does not mean to say that we or the media need be silent when we see the vile propaganda with which those who are yet to commit attacks drench social media platforms. There is a place for a strong counter-narrative to be put in place to meet the online radicalisation efforts of these criminals. So to those of you who speak on this subject, and who have the technical expertise to support an online counter-narrative, I applaud your thinking and your efforts. To the rest of us, the message is do not suffer in silence, speak up, speak up from wherever you are within law-abiding, multicultural British life, and do whatever you can to reject the messages of hate we see online. As some of the speakers at this conference have said already, the omnipresence of social media provides a great opportunity to meet the evils of terrorism, to take the opportunity to prove them wrong. Doing that is far better in my view than spending too much time taking the actions of suicide bombers and telling their story for them. Criminals do not speak for us, we must find our own voice and set the record straight.
As Independent Reviewer for just three months thus far, I have made it my business to travel around the country, seeking out Muslim communities in particular because they have been badly affected by all four of the terrorist attacks this year; indirectly as it were at Westminster, Manchester and London Bridge, but directly at Finsbury Park Mosque. And so, I have been to Finsbury Park Mosque, I have spent time with the Libyan community at a mosque and elsewhere in Manchester, and I have sat with community representatives from Mosque chairmen to youth workers in Leicester and Bradford. They offer real insight into the impact of our terrorism legislation upon their communities, and they all say one thing that is the same, which I paraphrase as ‘nobody really speaks for us, though many claim to represent us’ The communities I have visited all detest terrorism, they have powerful counter-narratives to terrorism, and they must be part of the answer online and offline in dealing with the extreme propaganda which we are contemplating today.
It is beyond doubt that social media has played a significant role in the planning and perpetration of terrorist attacks both here and abroad. My digest of cases from last year makes that point. Beyond the need, and the opportunity for a counter-narrative, should we be taking the chance to control social media and the tech companies who support it? In Germany we heard recently of the suggestion that heavy financial penalties should be imposed on companies who fail to take down extreme content. Discussions between our Prime Minister and President Macron in France suggest that there is a top table conversation in which solutions are being sought, there is an element of tough-talking, and tech companies are not immune from censure. And we read each week of high-level meetings between COOs and even CEOs of the internets biggest players.
Much of this is both necessary and valuable. I firmly believe that tech companies should strain every muscle to stem the flow of extreme material online. I have sat next to Metropolitan Police specialist officers who spend every day searching the net to find extreme material, and who then systematically apply hash values and other algorithms to identify each and every posting of that material with a view to writing to every web host requesting the take down of that material. It is laborious work, and it is important. There must be ever greater liaison and cooperation between law enforcement and tech companies.
But I struggle to see how it would help with this battle, if our Parliament were to criminalise tech company bosses who ‘don’t do enough’ . How do we measure ‘enough’? What is the appropriate sanction? We do not live in China, where the internet simply goes dark for millions when government so decides. Our democratic society cannot be treated that way. People have to be regarded as grown ups, entitled to every freedom provided for in a mature democracy, but working together to reduce the menace and the prevalence of terrorism and terrorists, those who would do us all indiscriminate harm.
So there is a need to do more, and tech companies must realise if they do not already that they have to be part of the solution here. There must be a coming together on a corporate level as well as amongst the wider population. Engagement is the answer. To my mind, companies who make eye-watering sums of money from our everyday chatter need to be brought firmly onside, they do not need to be forced offside by the application of criminal statutory offences with which to beat them, with the inevitable side-product of defeating the freedom which the net and social media platforms has opened up for the enjoyment and better understanding of us all about the world in which we live.
I finish where I started, as a lawyer not a politician, nor civil servant, and certainly not a regulator of social media nor a technocrat who understands the algorithms by which these communications platforms operate. Can we legislate to rid ourselves of online terrorism? My answer is that Parliament has already done so in meaningful ways including such offences as the dissemination offence under section 2 of the 2006 Act. We lawyers should look hard into such areas, to see whether any amendments might hone these offences given recent technological advances. We should also look to see whether sentencing provisions in 2017 are apt for our world, for example where Parliament drew a line in 2000, and where 17 years is a long time in tech terms. But apart from that, further legislation does not strike me as the answer. Criminalisation, and thereby alienation of tech companies who are there to serve us and to help us – albeit for colossal financial reward on their part – that cannot be the answer.
So no, or very little new legislation, as it seems to me.
That leaves investigation and prosecution, to complete my answer to the title of my talk. Both are vital. Both are working well, as last year’s cases show and I await to see the picture from this year. From my long experience of terrorism trials, it is the communications schedule which forms the backbone of almost every new trial. Where communication used to be by voice calls and SMS messages, now that is augmented by online messaging, much but not all from end-to-end encrypted platforms including WhatsApp. We need the assistance of tech companies to ensure that the comms schedules in trials from this year and next year incorporate every such platform used by these criminals. My technical knowledge runs out very quickly at this point. Many of you have important and creative solutions to offer, so I am here to learn.
And I finish if I may, in the technical arena which I know least but am willing to learn. Is quantum computing part of the answer? I first heard the term only recently. Could it hold the answer to breaking algorithms? What should we be doing towards the sharing of encryption keys? Can network providers enforce encryption and validation as precursors to content being published? And if these things are technically possible, by whom and when should this power be used? The future will be very interesting.