CHAPTER 4:
Proscription
Consideration of the Criminal Justice (Terrorism and Conspiracy) Act 1998
This chapter discusses the provisions in the PTA and EPA by which the Secretary of State can proscribe an Irish terrorist organisation which appears to be concerned in terrorism occurring in the UK. It proposes that proscription for Irish terrorist organisations should be retained, and also considers the case for and against proscription, or comparable powers, for international and domestic terrorist groups. The chapter outlines the new provisions contained in the Criminal Justice (Terrorism and Conspiracy) Act 1998. Views are particularly sought on:
- whether proscription powers should be extended to cover international and domestic terrorism;
- the provisions in the new Criminal Justice (Terrorism and Conspiracy) Act 1998;
- whether incitement measures should be included in appropriate future legislation.
The current law
4.1 Under section 1 of the PTA, the Secretary of State may by order proscribe any organisation which appears to him to be concerned in Irish terrorism, or in promoting it or encouraging it. The IRA and the INLA are proscribed under this section. No provision is made under the current law for proscribing international terrorist organisations active in the UK. Section 2 of the Act makes it an offence to belong to or solicit support, other than money or other property, for a proscribed organisation. (Fund-raising for, or contributing money or property to, a proscribed organisation is an offence under section 10 of the PTA - see chapter 6). Section 3 makes it an offence to display support for such an organisation in public.
4.2 Equivalent provisions in Northern Ireland are set out in sections 30 and 31 and Schedule 2 to the EPA. 12 organisations including the IRA, the INLA, the UDA, the UVF, the UFF, and most recently, the LVF and the Continuity Army Council are currently proscribed.
4.3 The Criminal Justice (Terrorism and Conspiracy) Act 1998 made further provision about the offence of belonging to a proscribed organisation, under section 2A of the PTA as inserted by the 1998 Act, so that where a person is charged with the offence of membership of a proscribed organisation, a statement of opinion from a senior police officer that the person is or was a member of a "specified" organisation can be admissible as evidence. Section 2A also provides that, where membership of a "specified" organisation is at issue, and provided that the accused has been permitted to consult a solicitor, certain inferences may be drawn from any subsequent failure to mention a fact material to the Section 2A membership offence when being questioned or charged. Neither the statement by the police officer, nor any inferences drawn, would alone be sufficient to convict an accused. Similar provisions were inserted into the EPA by the 1998 Act.
4.4 A "specified" organisation is an Irish terrorist organisation which the Secretary of State does not believe to be observing a complete and unequivocal ceasefire. The provisions of the new Act only apply to organisations which are both proscribed and specified in the relevant jurisdiction.
4.5 The Government would welcome views on the new proscription-related provisions contained in the 1998 Act, including the related forfeiture powers in section 4 (see paragraph 6.7 of this paper).
Lord Lloyd's views on proscription
4.6 Lord Lloyd in his report acknowledges that the offences associated with the proscription powers are used relatively infrequently, but he nevertheless recommends the retention of proscription in permanent legislation, and its extension to non-Irish terrorist groups. His reasons are twofold. First, he suggests that proscription, particularly if the powers were to be extended to include international terrorist groups, would facilitate the burden of proof in terrorist related cases. This proposal stems from Lord Lloyd's argument that a specific raft of terrorist offences should be created, and is considered in chapter 7. Secondly, Lord Lloyd argues that proscription could provide a useful paving mechanism for extending the current controls on terrorist fund-raising to international groups.
Should the proscription powers be retained in respect of Irish terrorism?
4.7 In Northern Ireland, in particular, proscription has come to symbolise the community's abhorrence of the kind of violence that has blighted society there for over 30 years. The indications are that the proscription provisions have made life significantly more difficult for the organisations to which they have been applied. Whilst the measures may not in themselves have closed down terrorist organisations, a knock on effect has been to deny the proscribed groups legitimate publicity and with it lawful ways of soliciting support and raising funds. Many activities by, or on behalf of, such groups are made more difficult by proscription, and that in itself aids the law enforcement effort in countering them. But perhaps more importantly the provisions have signalled forcefully the Government's, and society's, rejection of these organisations' claims to legitimacy.
4.8 There have been no convictions for proscription-related offences in GB since 1990, though, in the same period, 195 convictions in Northern Ireland (usually as the second count on the charge sheet). But the indications are that the provisions have produced some less quantifiable but still significant outcomes. In particular it is suggested they have led proscribed organisations to tone down overt promotion and rallies. Although it is less easy to measure what has not happened because the proscription provisions have been in place, or to calculate the numbers deterred from supporting proscribed organisations because of the penalties if convicted (up to 10 years' imprisonment and an unlimited fine), the Government still believes these factors to be very important.
4.9 One reason why there have been relatively few convictions for proscription-related offences is that they can be difficult to prove in practice. This particular concern was addressed in the recent Criminal Justice (Terrorism and Conspiracy) Act 1998 in respect of those "specified" terrorist groups not observing a full and unequivocal ceasefire, by provision for a statement of opinion of a senior police officer to be admissible as evidence in court. In the wake of the Omagh bombing, and in line with similar action by the Irish Government, the Government rapidly introduced tough additional measures to tackle the difficulty of proving membership, targeted against the Real IRA and other terrorist groups who have not satisfied the Secretary of State that their ceasefire is complete and unequivocal. The fact that the Government chose in doing so to build upon the existing proscription powers underlines its conviction that these measures are useful - both as a means to tackle membership of and support for proscribed organisations - and also as a way for society as a whole to voice its rejection of such groups and all they stand for.
4.10 Whilst optimistic that lasting peace will come to Northern Ireland, the Government does not believe that it would be right to repeal the power to proscribe Irish terrorist groups. The hope is that the existing terrorist organisations will continue to lose support and not be replaced - but there are no guarantees and the proscription measures have proved themselves to be fundamental to an effective response to the emergence of new terrorist groups. The Government therefore believes that the power of proscription in relation to Irish terrorism should be retained in future permanent counter-terrorism legislation. It proposes that, as now, the power to decide which groups should be proscribed should rest with the Secretary of State who has access to all the relevant intelligence on which decisions need to be based.
4.11 The additional proscription-related provisions introduced this summer in the Criminal Justice (Terrorism and Conspiracy) Act 1998 (outlined in Annex A) constituted a specific and tightly defined response to the threat from small splinter groups opposed to the peace process in Northern Ireland. The Government hopes that well before any new permanent counter-terrorist legislation comes into force, the threat from Irish terrorism will have continued to reduce to the extent that the need to retain these provisions will have diminished. A decision on whether or not the provisions should be retained in the new legislation will need to be taken at that time, in the light of the security situation.
Should the proscription powers be extended to international and domestic terrorism?
4.12 Chapter 2 concludes that even if the threat from Irish terrorism diminishes significantly, the UK will need to have at its disposal the tools to combat terrorism connected with other political, religious and ideological ends, arising from both domestic and international causes. And chapter 3 goes on to argue that a new definition of terrorism in legislation is required so that it covers all organisations (or individuals) committed to serious violence against persons or property to further such ends. The question then, is whether proscription, or equivalent powers, should be one of the tools to counter such terrorism.
4.13 Experience from other countries on the issue of banning terrorist organisations does not all point in one direction. Some EU Member States rely primarily on action against individuals rather than organisations. But others have laws which allow the courts to dissolve groups which use or instigate violence or threaten public order. And some international terrorist groups and their front organisations have been banned in recent years under such legislation. The US, under the Terrorism Prevention Act 1996 has taken powers to designate international (though not domestic) terrorist groups. The effect is that it is an offence to solicit, donate, or otherwise provide money and other resources to such organisations and it empowers the authorities to seize the assets of any designated organisation. The Act does not, however, make it illegal to be a member of a designated organisation, thus the question of proving membership does not arise. Thirty organisations have been designated under the Act to date but the list was only issued in October 1997 and so it is still perhaps a little too early to judge what long-term impact the American legislation will have.
4.14 An advantage in extending the current UK proscription powers so that the whole range of terrorist groups covered by the proposed new definition of terrorism could be caught is that it would provide a mechanism to signal clearly condemnation of any terrorist organisation whatever its origin and motivation. The current provisions, under which only Irish terrorist groups can be proscribed, could be construed by some as indicating that the Government does not take other forms of terrorism as seriously. Furthermore a wider provision could deter international groups from establishing themselves in the UK. Arguably, such groups can, to a greater extent than indigenous groups, choose their centres of operation, and proscription could send an unequivocal message that they are not welcome here.
4.15 Moreover, as for Irish terrorist groups, proscription or designation could make it easier to tackle terrorist fund-raising. (Lord Lloyd placed particular weight on this point in his argument that proscription powers should be retained and extended to all forms of terrorism). It is often difficult to prove that funds are being used for terrorist purposes and even more so if they are raised in one country for a cause in another. Criminalising fund-raising activity of any kind for a particular group would remove the requirement to prove end use of funds. But, of course, the provisions could be circumvented by changing the group's name (especially in cases where the group does not have an overriding incentive to preserve that particular identity), or by creating front organisations.
4.16 Although the Government recognises there would appear to be some advantage in extending proscription-type powers to non Irish terrorist groups, it is also aware that there could be attendant difficulties. The practical and policy difficulties involved in drawing up and then maintaining an up to date list of international and domestic groups to be covered would be formidable. For a start the potential scope of the list would be very wide (literally scores of groups could be possible candidates) and there would be a real risk of the list quickly becoming out of date - particularly if, as now, additions to, or deletions from, the list could only be made after debate by, and with the explicit agreement of, Parliament. Moreover the Government might be exposed to pressure to target organisations that it might not regard as terrorist or to take action against individuals whom it would not regard as terrorists.
4.17 In the light of these considerations, the Government recognises that the arguments are finely balanced for and against including in future counter-terrorist legislation a power for the Secretary of State to proscribe or designate terrorist organisations connected with domestic or international terrorist activities. It would welcome views on whether the powers should be so extended.
Conspiring in the United Kingdom to commit terrorist attacks abroad.
4.18 Of course, proscription and designation are not the only means by which the activities of international terrorist groups in this country could be combated. The Government condemns terrorism of any sort wherever it takes place and whatever or whoever is its target. It will take whatever steps are necessary both to prevent terrorism in the UK and abroad and to prevent people here planning terrorist acts elsewhere. That is why it took the opportunity in the recent Criminal Justice (Terrorism and Conspiracy) Act 1998 to introduce provisions to fulfil its commitment to make it an offence here to conspire to commit crimes abroad. It believes that these provisions strike the right balance between ensuring it is possible to take decisive action against those plotting terrorist and other criminal acts elsewhere from the UK, whilst building in safeguards to prevent prosecutions going ahead when broader considerations indicate that this is not in the public interest. This has been achieved by providing that the crime which it is believed is being plotted here must be a crime both under UK law and in the "target" country and by requiring that, in most cases, the Attorney General must give his personal consent, having regard to the public interest, before the case can proceed. The Government believes that these provisions on conspiracy will continue to play an important role in deterring international terrorists from using this country as a base for their operations. However, it recognises the doubts that were expressed about the breadth of the provisions in the 1998 Act, and would welcome further views in the present consultation exercise.
4.19 In introducing the 1998 Act, the Government decided that although the original Private Members Bill on conspiracy, introduced in 1996, also included incitement provisions, it would not carry these across into the 1998 Act. It came to this view because it recognised these measures raised separate complex and sensitive issues which it would not have been possible to address adequately in the time available. These included concerns that the incitement offence could be difficult in practice to prove and concerns that in certain circumstances the effect of the creation of the offence could be to constrain freedom of expression. On the other hand, there is no question that considerable concern can be caused by the sort of statements which can currently be made with impunity, encouraging and glorifying in acts of terrorism. This can make it difficult to define where the boundary of free speech should lie. The Government will look at these, and the related, issues very carefully and will keep under review whether incitement measures should be included in appropriate legislation at some point in the future. It would welcome further comments on this point.
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