Jonathan Hall QC: UK Terrorism Legislation

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EVENT TRANSCRIPT: Jonathan Hall QC: UK Terrorism Legislation

DATE: 6:00pm-7:00pm, 22nd January 2020

VENUE: Committee Room 12, House of Commons, Westminster, London, SW1A 0AA United Kingdom

SPEAKER: Jonathan Hall QC

EVENT CHAIR: Alexander John Gervase Chalk, Conservative MP

 

Alex Chalk MP: OK, well I think we’re past 6 o’clock so we’ll make a start. Very good evening to everyone. My name is Alex Chalk and I am the Member of Parliament for Cheltenham and it is my great pleasure to welcome you here to the presentation on scanning the horizon, technology and risk, by the independent reviewer of terrorism legislation, Jonathan Hall, Queen’s Counsel. Jonathan is, I think it’s fair to say, one of the most distinguished practitioners of his generation. He is a phenomenal counsel, as Chambers and Partners referred to him in 2019 – that’s just the least of the accolades I have to say. Appointed Queens Counsel in 2014, has a practice in national security, police law and asset recovery including unexplained wealth orders and really that area of the law which is the interface between criminal law and public law. He was appointed the independent reviewer in May 2019 and you will be aware that he has delivered his first annual report on the operation of the Terrorism act to the government and those will be laid before parliament shortly. He was appointed recently by the Lord Chancellor to carry out a review of MAPA, which you’ll know really constitutes the arrangements for managing terrorist risk posed by offenders in a community following the recent tragic events on London Bridge. So it really is my huge pleasure to be able to welcome him to speak to you this evening. Just before we start, just to say we will have a talk for about 20 to 30 minutes or so and then we’ll move over to questions and then we’ll have to be out the door by 7 o’clock, ok.

Jonathan Hall QC: Good evening. 7 o’clock. The first thing I am going to do is rush to my website, or Chambers website and see whether Alex Chalk describes himself as phenomenal Counsel, I suspect he does as well

Alex Chalk MP: Yeah I do actually.

Jonathan Hall QC: I mean most barristers do. So, scanning the horizon. My last predecessor but one was Lord Anderson. He evoked a nautical metaphor when he spoke of, in his words, the need to shield the compass. And what he was referring to, was fighting terrorism without defeating the law, so keeping to, if you like, a true set of bearings and a true set of principles, even when circumstances are hard. Now, I’m definitely no sailor, but even land lovers can be attracted to the horizon. And the question I want to ask this evening is how far ahead to new terrorism legislation should the UK be looking? How much time should we spend looking at the horizon? It is fair to say, the majority of my role as the independent reviewer of terrorism legislation is, quite rightly, nothing at all to do with horizons. It is prosaically about existing laws, how they are day to day, sometimes day and night operated by officials, their effectiveness, their impact on members of the public and their unintended consequences. And I refer to terrorism legislation, but frankly the rules that govern how this world operates are multiple and overlapping, many of them obscure. Home Office circulars, standard operating procedures, internal guidance, which has got nothing to do with Parliament, nothing to do with legislation at all, but nonetheless they affect how terrorism and counter-terrorism is practised in the real world. So, in my forthcoming annual report, which I hope will be published shortly to Parliament, of course I refer to acts of Parliament that give counter-terrorism officers very exceptional powers, for example the power to take biometrics from anyone going through a port or a border without the need for reasonable suspicion – that is an exceptional power and that is provided by the law. But, I also refer to the instructions that are given to individual officers on the ground, telling them how to operate those powers and those of course, as anyone knows, can be just as important. So it follows if you like, that the principle role of the independent reviewer, is not to look at horizon, but to go back, walk slowly along the shore, getting sand between their toes, looking in all the rockpools and leaving horizons and definitely blue sky thinking very much for others. So I am wary about looking too far ahead at what terrorism legislation might be needed in the future. But, given the invitation to speak and the location at which I’m speaking, I thought it might be useful to consider too particular aspects of terrorism. Firstly, technology, secondly, the management of known sources or risk, or using terms that were ridiculed at the time, but I find incredibly helpful, the known knowns. So far is technology is concerned, we know how destructive and transformative it has been on our lives, and the case for looking at legislative reform is considerable. So far as risk is concerned, and in particular what reduces, or as they say manages risk, is concerned, as some of you know and as Alex mentioned I was appointed yesterday by the Lord Chancellor to conduct an independent review of managing terrorist offender risk, under what is known as MAPA, and that is a sort of statutory partnership between the police, prisons and probation with input from other agencies. I’ll say a little bit about that, but because I am at the start of the process, I will stick to slightly broader points on that at this stage. Incidentally, if you have come for a talk about twitter, which is what it was advertised at, I am sorry, feel free to leave, I hope this will be more interesting. So, technology. I want to talk about five different areas, first of all, encryption. End-to-end encryption, encrypted metadata, which I am sure you’ll all know is something called DNS over HTTPS, which is something that is coming in quick and auto-destruction of communications are clearly here to stay. Although advances in de-encryption are constantly being made, it is quite possible that in the future, perhaps even the near future, a terrorism investigation could be defeated by a suspect withholding their password, meaning that police cannot obtain access to electronic data of, for example, attack planning or terrorist publications or the like. Either that, or there will be pressure to increase the amount of time that individuals can be held on pre-charge detention, whilst police have the opportunities to carry out more and more sophisticated methods of technological attack. From my contact with police in the Heater investigations, it’s questionable whether existing law provides an adequate framework for deterring individuals from simply refusing to allow access to information on their devices. There is a general offence of failing to comply with the special requirement under RIPA section 49, but that requirement can only be imposed if it can be fairly said that all other methods have been tried, and on the basis that it can be shown there is some material muchly benefit if access is granted. And the truth is that these pre-conditions may be difficult to establish, especially when counterterrorism police are working against the clock, in the relation to perhaps multiple individuals who have been arrested on a suspected attack plan and with multiple devices. Where those individual members are in pre-charge detention if they have been arrested under section 41 of the terrorism attack, and therefore must either be charged or released unconditionally. It seems to me that Parliament might consider that a refusal to hand over encryption keys during a terrorism investigation when a clear requirement has been made, and with the benefit of legal advice, is a cause of harm, which ought to be capable of prosecution and punishment, in the same way as failing to cooperate with the examination of the port under schedule seven of the terrorism act, which incidentally can require an individual to hand over their encryption keys. Or indeed, failing to respond to a notice issued in the course of a serious fraud investigation, serious fraud officers have got their own power to require information and documents. If that’s right, a clear and workable offence seems sensible, and from a human rights perspective, is a preferable alternative to longer and longer periods of pre-trial detention, currently as you know, 14 days, being sought as investigators grapple with more and more sophisticated encryption. Secondly, there is, I think, a need to establish a new statutory framework for biometrics as it affects terrorism legislation. An Australian think-tank called The Biometrics Institute lists fifteen types of biometrics, including voice patterns and gate analysis. Frankly I suspect that is a very, very conservative estimate. The commissioner for bio-metrics, Professor Paul Wiles, a UK public appointee, who reviews, among other things national security determinations, so can the police hold bio-metrics obtained under the terrorism act, has already commented on the absence of up-to-date legislation and the case for reform was acknowledged by the Conservative party in their manifesto in last December’s election. Amazingly the Terrorism Act 2000 only contemplates the bio-metrics of DNA and fingerprints. Just as with drones, it’s obvious that advances in bio-metrics could bring advances and benefits to counter-terrorism practice as well as challenges. For example, by way of example of a potential positive, in time and with, I stress, the right safeguards, technology could be used to enhance terrorist watch listing at ports and borders. But of course, it also has disadvantages, and in his view of investigatory powers, Lord Anderson referred to that general fear of surveillance and if you read last week’s report from South Wales about Cardiff city football fans covering their faces as opposed to being scanned by the police, it seems that they agree. So a clear and transparent framework, with proper safeguards, is good for human security, human rights, human liberty in its broadest sense, and good for national security because there will be justified innovations that should not be stifled because the law is just too unclear. So that takes me to my third point on technology. I suspect that pressure will increase for new laws on searching data rich devices, especially mobile phones, it doesn’t have to be mobile phones, but especially mobile phones, we all know the arguments about how much information they can hold. Now terrorism legislation, like other law enforcement laws, is cast in terms that are suited to searching rooms or searching bookshelves for physical evidence, and they are not really suited to electronic evidence. What it means to obtain, to copy, to retain and destroy are in reality quite different when it comes to electronic data. It will be interesting to see what the Law Commission’s report on search warrants says when it is published later this year, but for terrorism this particularly affects schedule seven of the terrorism act – that’s the one that allows officers to take entire copies of people’s mobile phones when it’s appropriate or indeed their computers. This has got particular relevance to the protection of privileged or journalistic material. Now some parts of terrorism legislation do not deal adequately with that really tricky issue when you have a large mass of electronic data but it contains either legally proof material or journalistic material which counter terrorism officers have got no right to see, how do the police manage to review that which they can look at and that which they can’t. If a model is required, then one could look to the new Investigatory Powers Act 2016, which talks in much more modern terms about access to data, about selection for examination, and that more closely shows how authorities, of course in a very different context, intelligence agencies, how the authorities deal with masses of electronic data. Fourthly, there is the possibility of legislating at least against a certain category of violent extremist material. Now this is not strictly speaking an online problem, but seems to have grown with it, and is coexisting with it, and the debate on this issue is now right in the open after the coroner at the London Bridge inquests questioned whether a new offence was required in his preventing his future deaths report. In case you haven’t picked it up, in the evidence that was given to the inquest, Khurram Bhat, so he was the principle attacker, his wife accepted evidence that her husband not only had pictures of mass executions, but also forwarded them to her and his sister. Moreover, there is evidence that the police were aware at least of Bhat’s possession of these images some months before he carried out the attack, but felt unable because of where the law stood to take action. Now I’ve made some suggestions on my twitter account, at terrorwatchdog, and I’ve received a range of stimulating responses. I think the main point from those responses, and I think the first question to be asked in fact, is whether a new terrorist offence, I stress the words terrorist offence, is needed at all. To be candid, when I was appointed I was surprised to find that possession of execution and torture videos was not already an offence, I sort of thought in my [inaudible] mind that it would be. But then I was also surprised to learn that a Canadian website, which was recently I think stopped operating, but one of those ones which hosts images of murders and suicides and tortures and executions, they were said to receive between ten and fifteen million visits per month. So there is a need, isn’t there when you’re talking about that volume of people looking at those sorts of images, and this is particularly relevant to the next part of my talk, when I talk about terrorist risk, to be careful, who is labelled as a terrorist offender. If you are interested, it is possible that you could create an offence based upon the existing offence of possession of extreme pornography. That might provide a possible framework for identifying the sort of material where even to have it, not to distribute it, but even to have it, could be an offence. And its also worth looking at the Australian attempt to deal with the Christchurch first person shorter phenomenon. They created a framework which helpfully I think suggests that any new offence has to be very tightly drawn with reference to only the most extreme sorts of violence. But, having said that, I do think there remains a real question of whether what is needed is an offence which widens the sort of material that cannot be distributed, at the moment it is an offence just to distribute terrorist publications, maybe is there case to widen that category, question. Or, is there a need for an offence that can be committed merely by possession, and that seems to me the key issue. Whatever the case, there is an absolute need to avoid legislative overreach, in other words, one must protect the positions of journalists and those trying to draw attention to human rights abuses in other parts of the world and they clearly must be protected. Finally and fifthly then, under the heading of technology, a word about terrorist groups. Now organisations with physical presence on the ground are one thing, that’s how terrorist groups have been conceived of and analysed ever since description, which is the way in which the government deals with terrorist groups bought in in relation to Northern Irish terrorists. But what if an organisation operates entirely online so it’s difficult if not impossible to identify members or leaders where participants may not know each other’s names, even assuming people give their real names. Where they will not meet, they may not live in the same country, where one is talking less of an organisation, but a brand, but a brand that nonetheless could cause immense harm if it’s pumping out certain material which individuals are accessing and becoming radicalised. And that’s a particular issue in the right wing terrorist space. Question: does the current law allow the prescription, even assuming it would be desirable, but does it allow the prescription of loose networks of online groups. Israel have recently updated their terrorism laws, and they adapted our definition of terrorist organisation in order to try and deal with this. They think they’ve got under the skin of that. I think this is definitely one to watch. The importance to the authorities of being able to prescribe a group cannot be underestimated, as the experience of al-Muhajiroun has shown. So, that deals with the first part of my talk; technology. I now turn to the second pat; known knowns. As everyone knows the focus of anxiety after the London and Manchester attacks in 2017 was the known unknowns or the unknown unknowns. In other words, those on the fringes, particularly those who were, in the terminology of the day, closed subjects of interest, or unknown unknowns, individuals who were self-radicalizing, particularly individuals who were part of a social network, but had access to materials online, and quickly went from, as they say, flash to bang. Society contemplated, and still contemplates to some extent the possibility that anyone might be a terrorist. This is a phenomenon that Professor Clive Walker has termed ‘neighbour terrorism’, which he thought could herald the rather dystopian arrival of all risks policing. But, as i will go on to say, it is neither possible, nor desirable in a free society to attempt to eliminate every risk. But I don’t want to talk about that cohort, the cohort I want to talk about today are those who have already been identified by the authorities as terrorists, and I refer to three categories. Firstly, those identified as a line to Daesh overseas, who may eventually return to the UK. Secondly, convicted terrorists, who are still in prison, but as we know from recent events, may present a continuing risk even whilst they are incarcerated. And thirdly, convicted terrorists who have been released. Now, this is of course not a popular group of individuals, which is why retaining a sense of balance and fairness when formulating new laws is particularly necessary as well as challenging. But even before you get to questions of balance and fairness, there are, I think prior utilitarian questions that cannot be dodged. What works? And I think it’s important to understand the scale and the nature of the phenomenon. And that sort of understanding involves honesty all round. So, it’s often said, on the one hand, that terrorist recidivism is very low. But that is in the sense of reconviction. What about the scale of re-engagement in terrorism related activity that is simply not prosecuted or even detected? My sense is that policy makers need greater long term visibility of the impact of measures that they’ve imposed, which means sharing intelligence by MI5 or police, even after an intervention, for example a TPIM, or a control order as they used to be, has ended. And that’s true both as a matter of what works, and as a matter of working out in an area which requires balance what is justified. On the other side of the debate there is a need to disentangle terrorism as an act against which society must be protected, from terrorism as an offence. So terrorism as an act, against terrorism as an offence. Many terrorist offences are what are known as precursor crimes, so these are offences for example possessing a document like a manual that shows you how to build a bomb or providing funds for a prescribed group. Now, neither in themselves actually cause terrorist violence, they don’t actually cause harm to third parties, but they are nonetheless justifiably penalised as being something that could lead to that. But the result of this is that as an inevitable irony, the more successful the police are at keeping people safe and intervening earlier, and therefore getting in and arresting and finding evidence before an attack has been carried out, the less chance there is to prosecute for a really serious offence. I’ll say that again; if you’re acting on an intelligence basis, trying to get in before an attack is caused, it may be the only evidence that can be prosecuted, leads to conviction for a more minor precursor offence. It would be unthinkable wouldn’t it to allow an attack actually to happen in order to be able to send someone to prison for life. So the irony is, the better the police are doing their job, in some ways, the shorter sentences there are going to be that judges can hand out if a conviction results. So, for this category of offenders, the sentences will, I suspect, continue to be modest. This means that discussion of making terrorists serve their full sentences must not overlook the reality that many terrorists will be realised sooner or later even if they do serve their full sentence. Similarly, it must be recognised as a matter of honesty that what makes an individual progress from terrorism in its broadest sense to acts of violence is still poorly understood. So, turning to individuals overseas, any affiliation with Daesh is of legitimate concern to society, both in terms of accountability for crimes that may be committed, and also for the risks that they may present, both for people overseas, and if they were return to the UK. But, dividing overseas travelers into a cohort of on the one hand fierce foreign terrorist fighters, and on the other, jihadi brides, is in my view too crude. In the same way as there are different terrorists, so there are different individuals that went to Daesh. For example, calling all women jihadi brides, by portraying them as passive victims of men, in some cases seriously risks underplaying female agency. And the law does not quite deal, I think, with those who went over to provide important moral but not material support. Different individuals will of course have different activity profiles, in particular any crude catergorisation might avoid looking at frankly the most difficult category of all, that’s the so-called children of the caliphate, for whom the starting point must be that they are victims, whatever risk they may in fact present. As for individuals, so for remedies, prison does not affect all individuals equally, and it may well be that for some individuals, prison increases their status in the network and prolongs their activism, and it may of course also provide a perfectly receptive and captive audience for recruitment. This is an issue which event effects the US, which is often held up as a model of harsh effectiveness. Last December, a Texas court convicted a serving terrorist prisoner at the federal correctional institute in Beaumont, Texas. He was already serving a sentence for attending and Al-Qaeda training camp in the nineties, but whilst he was in prison, he started recruiting fellow prisoners to join Daesh, to cast attacks in the US. Now this doesn’t mean that prison is not the right remedy, but its consequences must be addressed, including as of course the recent events in HMP Whitemore show, recognising that terrorism offenders do not stop at the prison door, and there is clearly no automatic job done once a terrorist is behind bars. The reason I focus on the known knowns, is that it’s here that the greatest political risk resides, at a superficial and unprincipled level, it is more palatable for an unknown to slip through the net, than it is for a known terrorist to return to violence, although I should say that it is very rare. That means that the desire to insulate against that risk may be all the greater. And in conclusion, I offer the following thoughts; first of all, it is impossible to guard against all risks. Attempting to do so in one case, leads to the very least to reduced capacity in another. Secondly, there is no magic test for risk at the point of release, which means, I think, that one should be cautious about minimising the trail judge’s assessment, that’s the judge who heard the evidence, the trial judge’s assessment of risk and of serious when passing sentence. There are, I think, strong issues of principle. A system in which the length of sentence was entirely handed over to an expert risk assessor would, I think, be unacceptable. Now that’s not designed to suggest a council of despair. Away from new legislation, much can be done, for example smarting sharing of information including sensitive information and one of the terms of reference of my new MAPA review is to consider the adequacy of information sharing between public bodies with very different characteristics between frankly MI5 and NHS and education. Existing from the law, in particular criminal law relating to terrorist radicalisation can obviously be enforced inside as well as outside prisons. For individuals returning from Syria and Iraq, there are tools out there, such as temporary exclusion orders, which perhaps with some minor changes which I am going to suggest in my report when it is published, can be used to address some of those risks. Finally, a few words about the MAPA review that I have just started undertaking. The group of offenders who I am going to consider are offenders convicted under terrorism legislation, those whose offences are considered to be terrorism related, as well as other offenders who have become radicalised or involved in terrorist activity, including people who have become radicalised whilst in prison. In other words, those who have been offended and those who have been released, and are considered to present an enduring risk. The question of whether existing MAPA structures are adequate or whether more resourceful powers are needed will require a very close look at how things happen on the ground. And I hope that as many people, who have an interest of perspective will be generous enough to share their thoughts with me as I undertake the review. So final conclusion; of course we can look to the horizon, but we must do so with our feet planted firmly on the ground. Thank you.

Alex Chalk MP: Thank you very much there Jonathan, we’ll proceed to questions, but I am going to take Chairman’s prerogative, and ask you a question myself if I may. You talked a bit about how a lot of people will be convicted of precursor offences, and I think actually a very significant proportion of people are convicted of possession of, as you said, material which might be of assistance with planning an act of material, so Section 58 I think it is. Even if they serve full whack, the full entirety of their sentence, as you say it might only be what fifteen months or so if they’re in possession of a bomb making manual. So what actually is the answer in those cases? Is it to increase the sentence, even if the offending is in the grand scheme of things is relatively towards the bottom end of the scale? Or is it to increase the level of supervision that exists under the MAPA arrangements? Or none of the above?

Jonathan Hall QC: I think that’s what I’m going to have to try to work out during my review. I mean I don’t even really want to commit on that. All I would say is, particularly for those sorts of offences, so section 58 of the terrorism act, which means just possessing a document makes you an offender, there will be a risk of jumping from saying that simply because someone possess that document they are a terrorist in the same category as Usman Khan – they may be, but they may not be. So I suspect the answer is going to be highly tailored interventions rather than trying to generalise that from the type of offence.

Alex Chalk MP: Ok, thank you very much. So who is going to start with a question? Would you be kind enough to say who you are before you ask the question?

[Inaudible]: My name is [inaudible]. I have two short questions. First of all, on encryption, why is destructive encryption not made illegal? And therefore, possession of such [inaudible] will be a criminal offence. I mean I think more can be done to deter people from this, and also more can be done for the main service providers. The second, you talk about data and your recommendations, because you don’t mention the B-word, we all know, Brexit. But the sharing of data is substantially undermined by the current policy on Brexit, and the sharing of data with European partners is surely a critical part of our defence.

Jonathan Hall QC: On destructive encryption, I mean it’s really interesting isn’t it because although software that would result in auto destruction of your messages presents challenges for counterterrorism, in other parts of the criminal world it may actually provide some solutions. For example one of the difficulties with prosecuting sex offences is that there is often pressure to get huge amounts of data and frankly if messages disappeared, then that problem may go. Whether you should make it illegal, that’s a big debate, I mean you would have to look at industry, you’d have to look at banking and the like, and I’m not going to embark upon that. I’m looking at, I hope with a very modest eye on the horizon, just at that particular category of people who are frustrating in an investigation which is being conducted at such pace. On data sharing, it’s crucial.

Alex Chalk MP: Right, gentleman at the back there, yep.

Questioner: I’m [indaudible] working in the civil service. I wondered with regard to your point about possession whether the concept of the harm principle, which would distinguish it from say possession from cannabis, which facilitates the drugs trade and therefore affects other people. And so if I possess child pornography, it facilitates a broader trade in that thing. But I would hesitate to say that I am not the only one who has a telegram cap, or has friends who have at some point seen or possessed a video of a execution of a terrorist offence to their research have looked at terrorist material. Would you say that that therefore has a broader harm impact on the sort of broader thing? Are ISIS motivated that I’ve seen these videos?

Jonathan Hall QC: Well, I think there are two ways in which you can look at the harm principle which is really important. The first one is by analogy with Charles [inaudible] images. I think there one would look at the deliberate production of dramatised execution and torture of people in orange jumpsuits for republication as a matter of propaganda. I think there you can draw quite a tight analogy. Those were staged in order to disseminate and if people aren’t, if there’s a restricted market for that, it may mean that people do that less. The broader harm element would be that there is a direct link between possessing this material and committing an offence. I think there the link is much less secure.

Alex Chalk MP: Yep.

Questioner 3: [inaudible] from the Sun. How is important is foreign money in the fight against terrorism, and is anti-money laundering and unexplained wealth order legislation fit for purpose?

Jonathan Hall QC: I mean I have a particular background in my day job dealing with unexplained wealth and the like. At the moment I think it’s not massively on my radar. The real risk at the moment is low sophistication attacks which don’t require vast amounts of money. It could change but not at the moment.

Alex Chalk MP: OK, lady there.

Amelia: Hi, I’m Amelia, I’m a philosophy graduate from St. Andrews. Thank you for your talk. I’m interested to hear your view on the case of Shamima Begum, the former UK citizen who is not being allowed to return to the UK.

Jonathan Hall QC: Well that reminds me of a question I had when I was in Israel in November, when I was asked what’s my opinions of Jeremy Corbyn. I don’t know, is it going through the courts at the moment? I’m not going to comment on something going through the courts at the moment. Also what you’ll see in my report is that I have, I think regrettably, a limited statutory reach as to what I can review. I am not a reviewer of immigration matters, and as desirable as it might be, I don’t have the same coverage of those issues as I do of things like TPIMs or arrests and the like.

Alex Chalk MP:  That may be a question for the politicians, but I am not going to answer it. Yes, gentleman over there.

[Inaudible]: [inaudible] BBC, Jonathan, can we just go back to the issue of encryption, this particular offence, because there is the section 49 RIPA offence, [inaudible] the section 53 order to disclose encryption [inaudible]. And we know that is used [inaudible] particularly with some sex offenders in relation to abuse images. I’m just trying to understand in practical terms what difference it would make with a new offence in a live [inaudible]. Because ultimately you’ve got someone who is so hardcore that they’re not going to cooperate with the safety interview, they’re not going to cooperate with [inaudible]

Jonathan Hall QC: Well, it has been used as you say, in relation to a murder case down in Southampton recently. The particular thing about terrorism investigations is when they’re investigating under section 41 of the terrorism act, there is a 14 day period during which they can be detained at a maximum, after which released unconditionally or charged. That means that one is not operating in the same way in which one is with a sex offender who is perhaps out on bail, where the police have had their device for some time, can try lots of different methods. If you’ve got to show, which is the current law, that you’ve tried all other reasonable methods, and at the same time you’re dealing with interviews, the police are dealing with other encrypted devices, they’re carrying out searches, they’re trying to formulate a case. To do that as well is a massive pressure, and in practice police find it hard to say we can now apply for permission to get a requirement that you give us the material. In relation to people who are just totally hardened, they may not be so hardened when presented with the criminal liability that would follow and the risk of the sentence, RIPA I think is 5 years at the moment. Secondly, even if they are undeterred by that, if that is the only thing they can be punished for, that may give the police an opportunity at least to take someone to court and try and prove a criminal case and remand in custody,,, so it may be a disruptive mechanism even for people who aren’t going to hand over the information

[Inaudible]: So part of the issue there is the bail, the fact that there is 14 days it’s hard to prove [inaudible]

Jonathan Hall QC: Yes, that’s something I look at in my forthcoming report, I raise the question with myself should there be bail to allow for this. Ultimately I concluded, for reasons you’ll see in my report, that ultimately the current system is the right one.

Alex Chalk MP: Yep, gentlemen there.

Ed Goth: Ed Goth from [inaudible]. You touched very briefly on the definition of terrorism, I just wandered whether it would be in your benefit to address it, because to me it seems to be the fundamental issue which we’re all facing, what is a terrorist, what is not a terrorist. Your predecessor in his report, [inaudible] referred to Salisbury [inaudible].

Jonathan Hall QC: I think I’ll answer that in two ways. The straight answer is no I haven’t tried to go back over the definition of the issue because it is a bit of a rabbit whole and I wanted to do other sorts of analysis. Does it prevent the law from operating? I’m not sure that’s right. I mean it’s certainly right that prosecutors have a lot of discretion as to what they prosecute as terrorism. Police have a lot of discretion as to what they treat as terrorism. But I think the laws still operate even though there’s a fuzziness about what terrorism is.

Ed Goth: It’s a big impact on insurance [inaudible] over what’s certified as a terrorism act and [inaudible]

Alex Chalk MP: Yes, lady there.

Harriet: I’m Harriet [inaudible] from Facebook on the counter-terrorism [inaudible]. I was just wondering, you did mention briefly about legislation that might go we don’t have the t-word terrorism without violent extremism, and if we lack the definition of terrorism we definitely lack an agreed upon definition of violent extremism. Do you have any [inaudible] about the grey areas [inaudible] and conviction discrepancies of how people target extremists in the UK, usually referred to terrorist legislation or to incitement to violence in order to get [inaudible]. I was wondering in your expansion to violent extremism if there is certain ideologies that you’re looking to cover that might be otherwise ignored, such as the extreme right phenomena white supremacy terrorism, that seems to be happening in parts of the world [inaudible]

Jonathan Hall QC:  I wouldn’t propose expanding terrorism to anything, I wouldn’t expand it to violent extremism. That’s a very tricky debate, rather like the definition of terrorism. All i was doing is considering whether or not terrorism legislation is the right vehicle by which it should be deterred and punished, or whether it should be dealt with in, for example, the hate crime space. The point I’ve made and i would actually remake is, what is treated as terrorist is very important. Once someone is treated as a potential terrorist, all sort of powers are unleashed and there are all sorts of consequences, some of which are well known and some of which are less well known. I think you make a valid point, but I was not proposing to expand terrorism law into anything that’s not currently recognised as terrorism.

Alex Chalk MP: Yep

Richard Gold: My name is Richard Gold. You mentioned precursor offences getting low or short sentences. Isn’t their problem in prison, only so many problems in prisons at the moment, with them not being able to control ordinary prisoners, allowing potential terrorists, who are singular not really radicalised, to meet people and create networks, which when they come out, not necessarily violent, but they’ve got a network to operate within. Are we just you know thinking of legislation without attending that first of all and financing that actually needs to be done and looking after prisoners not a bigger issue.

Jonathan Hall QC: I agree, its the classic law of unintended consequences and I think when police experience their discretions to whether to arrest for a terrorism offence or whether to try and engage something like channel or prevent, when prosecutors decide whether to prosecute for a terrorism offence, these are the sorts of things that they will have in mind, because the idea of people going to prison and getting worse is obviously something that one wants to avoid, particularly for the shorter term sentences.

Alex Chalk MP: Lady, here.

Flora Thompson: Flora Thompson from the Press Association. You mentioned that you don’t think there is a magic test for testing for risk at the point of release. What do you think of the government’s proposals to introduce polygraph tests on terrorists when they are considering release.

Jonathan Hall QC: Well, its worth looking at. I would say that because one of my terms of reference which I hope we publish soon is to look at that very issue. As you probably know they were considered for sex offenders, I think legislation came in 2007, then the government agreed to run quite an extensive pilot on whether they were successful for sex offenders. That was found to be successful, and I’ll explain why in a moment, and now its routinely done. I think reason why they found it successful with sex offenders was not because the result of the lie detector test revealed some hidden truth in itself, but that individuals were more likely to make clinically significant disclosures – is how they describe it. So, it became a more effective way of getting more truth about what people were up to. Now whether that works for terrorism or not is something that I’m certainly going to be looking at.

Alex Chalk MP: Yes, gentleman there.

[Inaudible]: [inaudible], Daily Telegraph. One of the issues that we’re trying to address at the moment is the return of ISIS wives and their children from the Middle East where they are being held. Do you have a view [inaudible] that we should not be palming these people off onto other states or should we take on our responsibility in bringing them back and deradicalising them.

Jonathan Hall QC: Well, I remember having had this question before and having answered it. I’ve got a lot of sympathy with the government’s position that if a lot of risky people were to come back all at once that would be a very big burden. On the other hand, I do think the principle of accountability is important. Now you are asking about a particular set of individuals – women and children. I think the answer is that they have got to be looked at as individuals rather than as I was saying in my speech, as a category. Quite Charles where that takes you don’t know.

Nikita Malik: If I could just comment on that. I work at the Henry Jackson Society as our Director of our Centre on Radicalisation and Terrorism and we’ve done a lot of work on women and children. Of course we have seen many cases of women having gone to ISIS and having come back. We have those court cases avaliable in the Open Source, Tareena Shakil is a very good example of that, terrorist propaganda, you know we could use sentancing to sentance her and she fully participated in the deradicalisation programme because they have a motive to do so, so that they can be reunited with their children. So, I completely agree, a case by case basis, but it’s inveitable that this probem is coming, and it just makes sense, rather than leaving them in a refugee camp to be dealing with the on a case by case basis.

Alex Chalk MP: Right, ok. Are there any further questions, are we running out?

[Inaudible]: [inaudible] Having lost the memory from [inaudible] Northern Ireland, a couple of questions about prisons and the issues of prisons and radicalising in prisons. [inaudible]. Also that thing about the known knowns, if you go back into pre-Good Friday agreement, most terrorists who were committing terrorist acts were known. Have we lost all that knowledge and the lessons from Belfast?

Jonathan Hall QC: We haven’t because it’s happening every day in Northern Ireland, and it’s a really interesting question, which I started to do in my report, because I have a whole chapter on Northern Ireland, to try and compare the practices. I feel like I can make some possible comparisons with the growing right wing threat, I think sort of poor white is the profile of many terrorists in Northern Ireland, and there is a particular problem growing with that in the right wing space. Whether it works in the Islamist extremist space I frankly don’t know. I mean there are some key differences aren’t there. One is that it is a, it’s such a part of an identity, and the parallel that I would draw is in Israel for example, I went there in November and I was asking them how do you deal with deradicalisation? They looked at me as if I was completely mad because people are going to be entrenched on one side of the divide or the other. I don’t know, and you may know the answer whether there are effective mechanisms in Northern Ireland, but the comparative is useful, in other words people are very entrenched in certain communities and looking at what works and what doesn’t work is really important and I don’t think there is enough looking across the Irish sea to see what works and what doesn’t.

Alex Chalk MP: Ok, you have the final word.

[Inaudible]: Oh thank you. So you mentioned before biometrics, and I am aware the banks have used them more and more to identify their customers, which would appear to me to be a really great thing for the authorities to be able to use possibly to identify voice patterns as part of investigating terrorist activity. Do you think that the state should have more power to look at that, at what private companies are doing, with biometrics, in order to investigate?

Jonathan Hall QC: I think that the law needs to provide a framework, a transparent framework, I mean a lot of people are fed up already with the amount of data and understanding that there is about them from large internet giants. If the state is going to do that then it has to be done slowly, cautiously, transparently, with public debate and understanding and consent. Because, I think one of the features of policing and certainly terrorism policing is that it has to be done with consent of the people, which is why that I think a framework for how those new technologies are used is important.

Alex Chalk MP: Alright. Well, with that, can I just take the opportunity to thank the Henry Jackson Society, thank Jonathan Hall and to say that this meeting is now closed. Thank you very much indeed.

HJS



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