Idea Transcript
IN THE COURT OF APPEAL BETWEEN
C1/2014/0607 THE QUEEN
on the Application of David MIRANDA Appellant -v(1)
SECRETARY OF STATE FOR THE HOME DEPARTMENT
(2)
COMMISSIONER OF POLICE OF THE METROPOLIS Respondents
APPELLANT’S FURTHER NOTE ON SECTION 1 TERRORISM ACT 2000
Independent Reviewer of Terrorism Legislation Report, July 2014
1.
By section 36 of the Terrorism Act 2000 (‘TACT’), the Secretary of State must appoint an independent person to review the operation of the Act’s provisions. That person may produce reports as part of their reviewing function.
2.
In his report on the ‘Terrorism Acts in 2013’, published in July 2014, the current Independent Reviewer of Terrorism Legislation, Mr David Anderson QC, analysed the Divisional Court (‘DC’) judgment which is the subject of this appeal at [4.11] – [4.23].
3.
He noted at [4.14] that the DC found that the powers under Schedule 7 of TACT were exercised on the basis of MI5’s updated request to stop the Appellant (ibid). That request was set out in the DC’s judgment at [11] – [12]. MI5 requested that the Appellant be stopped because he was believed to be ‘carrying items which will assist in Greenwald releasing ... NSA and GCHQ material’, the release of that material ‘would endanger people’s lives’ and ‘is designed to influence a government, and is made for the purpose of promoting a political or ideological cause.’
4.
Essentially, the potential acts of ‘terrorism’ which MI5 was asking the police to investigate were the release of information in the Guardian and other newspapers where the articles in question were believed to be written to
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influence a government and for a political cause and where the articles might ‘reveal personal details of members of the armed forces or the security and intelligence agencies, thereby endangering their lives’ (DC at [33]). The DC held that this could constitute “terrorism” within the meaning of section 1 of TACT, and on that basis it held the stop of the Appellant to be lawful (ibid at [33] and [36]). Significantly, the DC further accepted that release of information could constitute ‘terrorism’ irrespective of whether the journalists intended to endanger life or had any awareness they were doing so (ibid at [29]). Indeed, it was a key part of the Respondents’ case, accepted by the DC, that even if the journalists were doing their best to avoid endangering life, and genuinely believed they were creating no danger, they could be committing acts of terrorism (ibid at [51] – [58], especially [58]).
5.
In his report, the Independent Reviewer observed that the ‘true issue is not whether the police ought to have the power to stop someone on the basis of the sort of intelligence they were given on Mr Miranda (which surely they should, and arguably do), but whether it was lawful to use counter-terrorism law for that purpose’ (at [4.15]). He suggested that the DC’s ‘validation’ of that use of counter-terrorism law through its construction of section 1 of TACT ‘highlighted the remarkable (and some would say alarming) breadth of the UK’s current definition of terrorism’ (ibid). It would appear to cover any ‘publication (or threatened publication) of words’ that were liable to endanger life or create a serious risk to health and safety (at [4.16]). He went on to suggest that other interpretive approaches might produce a different result.
6.
The Independent Reviewer further considered the implications of the DC interpretation of s 1 of TACT, at [4.19]: ‘Take an article or blog that argues (on religious or political grounds) against the vaccination of children for certain diseases. If it were judged to create a serious risk to public health, and if it was designed to influence government policy, its publication would be classed by the law as a terrorist action.’ He then set out the consequence of ‘of a newspaper article, politically motivated and aimed at influencing the Government, whose publication is said to endanger lives (or public health or safety)’: the publication would be a criminal offence; the newspaper could be proscribed as a terrorist organisation; the journalist could be subject to assetfreezing measures (at [4.20] – [4.21]).
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7.
As the Independent Reviewer noted, whether or not that was likely to occur is ‘hardly the point’ (at [4.22]). He explained ‘it leaves citizens in the dark and risks undermining the rule of law’ to confer ‘over broad discretions to Ministers, prosecutors and police’. In addition, ‘…to render people subject to the terrorism laws whom no sensible person would think of as terrorists risks destroying the trust upon which these special powers depend for their acceptance by the public’ and ‘to bring activities such as journalism and blogging within the ambit of “terrorism” (even if only when they are practised irresponsibly) encourages the “chilling effect” that can deter even legitimate enquiry and expression in related fields’.
8.
The Appellant respectfully endorses the Independent Reviewer’s concerns about the extraordinary breadth of the DC’s interpretation of s 1 of TACT. The Appellant submits that the answer to those concerns is that the interpretation was erroneous.
The meaning of ‘terrorism’
9.
The definition of terrorism is set out at s 1 of TACT. If one reads s 1(1) and 1(2) together it defines ‘terrorism’ as ‘the use or threat of action [that involves serious violence against a person etc] ... [where] the use or threat is designed to influence the government ... and ... the use or threat is made for the purpose of advancing a political ... cause.’1 Acts of terrorism thus require a specified motivation and the deliberate ‘use or threat’ of action for the purpose of pursuing particular ends. What it is that is being used or threatened can, however, be read in two ways: (1)
Interpretation 1 is that, pursuant to s 1(1) of TACT, it is merely the ‘action’ and not what it “involves” etc, which must be used or threatened for political ends. This is the interpretation adopted by the DC. Under this interpretation, an ‘action’ can constitute terrorism if it happens to endanger life or involve violence where the ‘terrorist’ may be entirely unaware that that is so and where he or she is not using or
1
The analysis below focuses on action “designed to influence the government” rather than that designed to influence “an international governmental organisation” or to “intimidate the public” as it is the former that is alleged in this case, but the same analysis applies if one is dealing with the other elements of TACT s 1(1)(b). Similarly the focus is upon the advancement of a “political ... cause” pursuant to s 1(1)(c) rather than one that is “religious or ideological”.
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threatening violence or seeking to endanger life etc. for political purposes. Entirely lawful acts may fall within this definition of terrorism. (2)
Interpretation 2 is that, pursuant to s 1(1) of TACT, it is what the action ‘involves’, or what its consequence ‘creates’ etc., and not merely the action itself, which must be used or threatened for political ends. Thus it would constitute terrorism to use or threaten serious violence or the creation of a serious risk to health and safety in order to influence the Government and to advance a political or religious cause. If, however, an individual was unaware that his actions created a serious risk to health and safety, those actions could not be said to be the “use or threat” of such a risk for the purpose of advancing a political cause and influencing the Government.
10.
The different interpretations lead to significantly different outcomes (including in the present case). One example given by the Independent Reviewer is of a newspaper article about vaccination, which is ‘terrorism’ under Interpretation 1 but not Interpretation 2.
11.
Another example is the following: A group of junior doctors wishes to erect a sign to protest about Government policy towards the NHS. Inadvertently some members of the group erect it in a way that accidentally endangers the life of a passer-by or creates a serious risk to health and safety. At the same time other members of the group erect a sign advertising a social event which has the same consequences. The latter is, of course, not ‘terrorism’. Under Interpretation 1, however, the junior doctors erecting the sign with the political message have committed acts of ‘terrorism’. They have taken an action designed to influence the Government to advance a political cause, which (even if entirely unknown to them) endangered the public or created a serious risk to health and safety.
12.
Even if either interpretation were tenable on a purely literal interpretation of TACT, if one considers (i) the ordinary meaning of the word ‘terrorism’; (ii) Parliament’s intention in enacting s 1, as evidenced by TACT’s Explanatory Notes and legislative history; and (iii) the consequences of the extraordinary breadth of ‘terrorism’ pursuant to Interpretation 1 for the right to freedom of 4
expression protected by Article 10 of ECHR, it is clear that Interpretation 2 should be preferred.
The ordinary meaning of ‘terrorism’
13.
Where statutes define words in such a way that, on a literal reading, they would appear to encompass instances that are inconsistent with the way the words are normally understood, the courts should not simply apply the literal interpretation and ignore the ordinary meaning of the words used: see Oxfordshire County Council v Oxfordshire City Council [2006] UKHL 25; [2006] 2 AC 674 and Bennion on Statutory Interpretation (6th edn, 2013) section 199). Where there is no indication that Parliament intended to define words in a way no-one would ordinarily understand them, the courts should not interpret them to have such a meaning
14.
‘Terrorism’, as it is ordinarily understood, is the attempt to advance some political or religious cause not by persuasion but by violence, the endangerment of life etc. As the then Home Secretary explained when introducing the Terrorism Bill to the House of Commons: ‘Terrorism involves the threat or use of serious violence for political, religious or ideological ends. It is premeditated, and aims to create a climate of extreme fear’ (HC Deb 14 December 1999 col 156). That is consistent with the ordinary understanding and dictionary definition of a ‘terrorist’ as ‘a person who uses violence and intimidation in pursuit of political aims’.2 There are, of course, disputes as to the precise meaning of ‘terrorism’: whether it should cover acts that damage property or only violence against persons; whether it should cover violence against oppressive governments (see discussion in R v Gul [2014] AC 1260). Those are not, however, disputes about what at its core constitutes ‘terrorism’, namely the decision to advance a political, religious or ideological causes not through democratic means but by using or threatening violence, destruction of property, the endangerment of life.
15.
In Oxfordshire County Council, Lord Scott held (at [83]), that the court should not ‘insist on a literal application’ of a statutory definition where it leads to the use of words in a way that ‘no one would recognise’. No-one could suggest
2
th
Concise Oxford Dictionary (10 edn, 1999)
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the examples set out above at paragraph 8 fall within any ordinary understanding of the word ‘terrorism’. It makes a nonsense of the word to suggest that an advertisement for a social event erected in a way that accidentally endangers life does not constitute ‘terrorism’; but when the same scenario emerges with a political sign, the person who erects it has committed an act of ‘terrorism.’ The same applies to a newspaper writing political stories that inadvertently reveal the identity of members of the intelligence service or oppose government policy on vaccination. To describe that as ‘terrorism’ is not merely an overly broad use of the word. It is a use of the word ‘terrorism’ that bears no relationship to any ordinary understanding of the concept. In order to constitute an act of ‘terrorism’ the actor must be seeking to use or threaten violence or the endangerment of life in order to advance a political cause. That is consistent with Interpretation 2. It is also consistent with the ordinary meaning of the word ‘terrorism’ and avoids the absurdity that arises from applying Interpretation 1.
Parliament’s intention: Explanatory Notes and legislative history
16.
Section 150 of Bennion states that in interpreting a statute, ‘the interpreter is required to determine and apply the legal meaning of the enactment, that is the meaning that correctly conveys the legislative intention.’ In determining ‘legislative intent’ it is important to have regard to an Act’s Explanatory Notes (R (Westminster CC) v NASS [2002] UKHL 38; [2002] 1 WLR 2956 at [2] – [6]). It is also important to have regard to an Act’s legislative history and, in particular, the state of the existing law whose defects an enactment sought to remedy (see Bennion Sections 209-210 and 213-214).
17.
Prior to the enactment of TACT, ‘terrorism’ was defined in the Prevention of Terrorism (Temporary Provisions) Act 1989 (‘the PTA 1989’) at s 20 as ‘the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear.’ In 1995, the Government tasked Lord Lloyd of Berwick to consider the future need for counter-terrorism legislation including the definition of ‘terrorism’. Lord Lloyd reported in 1996: Inquiry into Legislation against Terrorism (Cm 3420, 1996). At the time Lord Lloyd wrote his report, most counter-terrorism powers were focused upon Irish terrorism. He recommended that new legislation contain a
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definition covering all terrorism including domestic non-Irish terrorism (Report at [5.18] – [5.21]).
18.
On the definition of terrorism, Lord Lloyd suggested (at [5.22] – [5.23]) expanding the PTA 1989 definition to cover not just violence for ‘political’, but also religious and ideological ends and narrowing the definition from any violence to ‘serious’ violence. He proposed a definition modelled on that used by the US Federal Bureau of Investigation of ‘The use of serious violence against persons or property, or the threat to use such violence, to intimidate or coerce a government, the public or any section of the public, in order to promote political, social or ideological objectives’. Lord Lloyd noted, however, that it might be necessary to deal not just with those that use violence but those who use disruption of ‘vital computer installations, such as air traffic control systems’.
19.
In December 1998 the Home Office & Northern Ireland Office produced a Consultation Paper entitled ‘Legislation Against Terrorism’ (Cm 4178). It accepted Lord Lloyd’s recommendation that counter-terrorism legislation should be ‘capable of being used in relation to any form of serious terrorist violence whether domestic, international or Irish’ (at [3.13]). At [3.16] the Consultation Paper agreed with Lord Lloyd that the definition of ‘terrorism’ should cover ‘religiously motivated terrorist groups’ and should encompass not just violence but ‘a terrorist hacking into some vital computer installation’ or ‘contaminating a public utility system’. It stated at [3.17]:
The Government therefore suggests that terrorism should be redefined as ‘the use of serious violence against persons or property, or the threat to use such violence, to intimidate or coerce a government, the public, or any section of the public for political, religious or ideological ends’. The term serious violence would need to be defined so that it included serious disruption, for instance resulting from attacks on computer installations or public utilities… 20.
The definition of terrorism in s 1 of TACT is an attempt to codify the recommendations made in the Consultation Paper. This is apparent from TACT’s Explanatory Notes at paragraph 10:
Under the PTA [1989], terrorism ‘means the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear’ (section 20). The 7
definition in the PTA is limited in that the powers and offences in that Act only apply to terrorism connected with the affairs of Northern Ireland (‘Irish terrorism’) or Irish and international terrorism. The Act, as suggested in the consultation document, adopts a wider definition, recognising that terrorism may have religious or ideological as well as political motivation, and covering actions which might not be violent in themselves but which can, in a modern society, have a devastating impact. These could include interfering with the supply of water or power where life, health or safety may be put at risk. Subsection (2)(e) covers the disrupting of key computer systems. Subsection (3) provides that where action involves firearms or explosives, it does not have to be designed to influence the government or to intimidate the public or a section of the public to be included in the definition. This is to ensure that, for instance, the assassination of key individuals is covered. 21.
The Parliamentary intention in altering the definition of terrorism from the PTA 1989 to that set out in s 1 of TACT, is thus apparent from the legislative history. The intention was to treat all forms of ‘terrorism’ as such, and not only ‘Irish terrorism.’ Parliament intended to widen the definition from the use of violence for political ends to include not just violence against persons but against property, as well as the use of other ‘devastating acts’ that endanger life or put health and safety at risk. Parliament also intended to extend ‘terrorism’ to the ‘threat’ of such acts as well as their ‘use’, and to acts with ‘religious or ideological’ motivations as well as ‘political’. Further, the definition was narrowed so as to apply only to ‘serious’ violence. It is, however, clear that the Act intended to retain the core concept of terrorism contained in the PTA 1989 s 20, and as set out in Lord Lloyd’s report and the Consultation Paper, as well as the ordinary understanding of the word, namely that it was the ‘use’ or ‘threat’ of violence, destruction of property etc. for the purpose of advancing political etc. ends. There is no trace in the legislative history, whether from Lord Lloyd’s report or the Consultation Paper, that Parliament was intending radically to alter the meaning of ‘terrorism’ so as to define it in the way set out in Interpretation 1 above.
22.
Statements made by Ministers in Parliament, during the passage of TACT, reinforce this point. The Home Secretary stated, ‘Terrorism involves the threat or use of serious violence for political, religious or ideological ends’ (HC Deb 14 December 1999 col 156). He went on to explain that the threshold for terrorism proposed in the Bill was not ‘lower than that in existing anti-terrorist legislation and that proposed in Lord Lloyd's report’ (ibid col 159). Later in the debate the then Minster of State for the Home Office made clear that the 8
proposed definition of terrorism ‘does not threaten demonstrations and expressions of opinion’ and was intended to ‘threaten organisations that seek to prosecute ideological views by the threat of serious violence’ (ibid col 226).
23.
Introducing the Terrorism Bill in the House of Lords on its Second Reading, Lord Bassam of Brighton, Parliamentary Under-Secretary of State, explained that the ‘starting point for the definition [of terrorism] was the existing PTA definition and the recommendations of ... Lord Lloyd,’ and it was again made clear that ‘the Bill is not intended to threaten the right to demonstrate peacefully; nor will it do so... This Government would not seek to introduce a Bill which we believed would threaten the right of peaceful protest’ (HL Deb 6 April 2000 col 1427). Lord Bassam went on to explain the approach that had been taken to the previous statutory definition of terrorism (ibid col 1483). He stated that the proposed statutory changes from the PTA 1989 were to broaden the list of motivations from ‘just the political to include religious and social’, to raise the threshold to ‘serious violence’ and ‘to catch the activities of terrorists who disrupt vital systems without necessarily using violence’ (ibid). He stated: ‘While we have not adopted the definition of … Lord Lloyd, in every respect, I believe that we have broadly adopted the approach he proposed’ (ibid).
24.
When the Terrorism Bill was subsequently considered by the House of Lords, Lord Bassam noted that the PTA 1989 ‘defines terrorism as the use of violence for political ends, including putting the public or any section of the public in fear’ (HL Deb 16 May 2000 col 226). He continued: ‘That definition has stood the test of time…. It has, in its rough and ready way, worked well. We took the view that the definition should be changed only where it was necessary to do so’ (ibid). He went on to explain changes it had been considered ‘necessary’ to make, such as the addition of religious and ideological objectives and inclusion of disruption of electronic systems as a form of ‘violence’ (ibid col 226-227).
25.
The debate makes Parliament’s intention clear. It is consistent with Interpretation 2 but not Interpretation 1. It was plainly not Parliament’s intention to depart from the ordinary meaning of terrorism so that it would cover legitimate and peaceful political expression or journalism simply
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because such expression had the effect of putting health and safety at risk or endangering life.
Human Rights Act 1998 (‘HRA 1998’)
26.
As the Independent Reviewer observed, one of the consequences of the DC’s interpretation of TACT section 1 is that it brings activities such as journalism and blogging within the ambit of ‘terrorism’. Any political statement that seeks, however peacefully and however lawfully, to influence the Government will be an act of ‘terrorism’ if its consequences, however unknown and however unintended, endanger life or create a serious risk to health and safety.
27.
Pursuant to the HRA 1998 s 3(1), TACT s 1 should be interpreted in a way that ensures it is compatible with Convention rights. That includes rights to freedom of expression protected by Article 10. If the definition of ‘terrorism’ covers publication of political articles by journalists in situations which bear no relationship to the ordinary understanding of the word ‘terrorism’, and where it will be impossible for an individual to foresee that his conduct might constitute ‘terrorism’, that is inconsistent with the requirement of legal certainty that interference with Art 10 rights is ‘prescribed by law’.3
28.
The importance of protecting political expression is well recognised (see discussion in the DC at [41] – [47]). It is also well recognised that in the field of freedom of expression, legal certainly is of particularly importance (see De Freitas v Permanent Secretary of Ministry of Agriculture [1999] AC 69, 78). Where the threat of sanction is imprecisely formulated and the boundaries of what expression is permitted are not clearly marked, there is a risk is of a chilling effect.
29.
If the DC’s interpretation of s 1 of TACT is correct, it means that any political statement can be an act of ‘terrorism’ if it endangers life or places health and
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To be ‘prescribed by law’ an interference with Convention rights must occur pursuant to laws that are ‘adequately accessible and foreseeable’ (Gillan v UK (2010) 50 EHRR 45 §76. That does not mean that the law must provide, on its face, ‘for every eventuality’ (Gillan §77). There must, however, be sufficient accessibility and foreseeability ‘as to the circumstances in which and the conditions on which’ powers are exercised (Malone v UK (1985) 7 EHRR 14 §67) and the law must be ‘formulated with sufficient precision to enable the individual - if need be with appropriate advice - to regulate his conduct’(Gillan §76).
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safety at risk even if the maker of the statement does not believe that he or she is doing so. As the Independent Reviewer indicates, that has an obvious potential ‘chilling effect’ on political speech (Independent Reviewer’s Report, July 2014 at [4.22]) and is inconsistent with ECHR Art 10. Article 10 requires interference with freedom of expression to occur pursuant to a legal regime that enables individuals to be able to predict, with at least some degree of precision, whether their actions will be regarded as ‘terrorism’ and thus that they will be placed at risk of being subjected to coercive measures. Even if, contrary to the above, ordinary canons of statutory construction do not lead to a rejection of DC’s interpretation of TACT s 1, the interpretation should be rejected by a reading of s 1 which ensures its compatibility with Article 10 and other Convention rights.
30.
It is not difficult to imagine other unwelcome, and potentially serious, consequences were the DC’s broad interpretation correct. Those charged with enforcing anti-terrorism law would immediately have a far greater, almost indefinitely broad, remit. There would be a real risk of resources being diverted away from preventing the forms of terrorism Parliament had in mind when enacting TACT.
Consequences for appeal 31.
If the Appellant is correct the DC erred in adopting Interpretation 1 and section 1 of TACT should be read according to Interpretation 2. Pursuant to that interpretation it is clear that the use of Schedule 7 was based on a misdirection of law and was unlawful in his case. There is no suggestion that the Security Services or police believed that Mr Greenwald, the Guardian or others in the press publishing the Snowden material were using the endangerment of life or violence etc in order to advance a political cause.
Matthew Ryder QC
18 November 2015
Dan Squires Edward Craven
Matrix
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