By Sapan Maini-Thompson
The Home Office is proposing to legislate for a new criminal offence relating to the “possession of the most serious material glorifying or encouraging terrorism”.
This follows a suggestion made by the Chief Coroner, HHJ Mark Lucraft QC, in his report concerning the 2017 London Bridge terrorist attack. In his view, the lack of such an offence may sometimes prevent counter-terror police taking disruptive action against terror suspects, even when the extremist propaganda they possess is of the most offensive and shocking character. That propaganda might include, for instance, footage of sadistic violence.
The criminal law is ultimately concerned with the prevention of harm. The normative classification of harm with a political dimension, however, engages the right to freedom of thought under Article 10 of the European Convention on Human Rights, as protected under the Human Rights Act. To ensure a proper balance is struck between protecting the public and safeguarding civil liberties, any new offence ought to satisfy a three-limb test:
- It must provide a specific definition for the “most serious” category of materials which “glorify or encourage” terrorism. This should be supplemented with empirical guidance to ensure a high and objective threshold is set for criminal sanction.
- The mens rea requirement for the offence must be deliberate possession of harmful material, with the knowledge that said material glorifies or encourages terrorism. The standard of liability must be one of intention rather than recklessness or negligence. This would ensure that only harmful purposes are penalised.
- It must establish statutory defences to such possession on grounds of reasonable excuse and/or working in the public interest.
The current legal framework
Under s.58 Terrorism Act 2000, it is an offence to possess a document “likely to be useful” to a person in “committing or preparing an act of terrorism”. An example is a bomb construction manual. The Counter-Terrorism and Border Security Act 2019 (CTBSA) extended the scope of the s.58 offence to viewing such documents online. Additionally, under s.2 Terrorism Act 2006, it is an offence to “disseminate” terrorist publications. But there is no offence of possessing “terrorist propaganda” material simpliciter. At present, criminal prosecutions may only rely upon such material as evidence of an “extremist mindset”.
The normative basis for a new offence
The law falls short of satisfying the harm principle on two grounds.
First, the possession of material which encourages or glorifies terrorism is inherently harmful. This is because in glorifying terrorism, such material is designed to outrage public decency. A comparison with pornography legislation supports this argument. Per s.62 Coroners and Justice Act 2009, it is an offence for a person to be in possession of a prohibited image of a child. Similarly, per s.63 Criminal Justice and Immigration Act 2008, it is an offence for a person to be in possession of an extreme pornographic image. The rationale for criminalising possession, therefore, is that it is reasonable to assume that certain categories of material can only have been produced to cause harm, irrespective of their wider distribution.
Second, the possession of extremist propaganda endangers the safety of the public because it might motivate an individual to commit an act of terrorism. This argument captures how terrorist propaganda may operate as a vector of radicalisation, indirectly encouraging or desensitising viewers to extremist violence. This ground is admittedly more challenging because it engages issues of causation. Nonetheless, it offers a necessary perspective on the instrumental risks posed by the possession of seriously harmful content.
Why amending the existing offence is undesirable
The scholar Stuart Macdonald has argued that even if we accept the existence of a lacuna in the law, it is not necessary to legislate for a new offence. Instead, he argues, the gap could be plugged by amending the s.58 offence so that “terrorist propaganda” may be classified as material which is “likely to be useful” to furthering a terrorist purpose. But there are both practical and normative reasons to be sceptical of this proposal.
In practice, this proposed amendment would likely complicate the assessment of factual causation in criminal trials. This is because it would be difficult for juries to scrutinise “usefulness” in the abstract context of propaganda and risk leaving the law unclear.
The principle of fair labelling, moreover, surely requires we distinguish between the possession of terrorist propaganda, which may indirectly benefit a terrorist organisation, and the collection of information which directly assists the commission of an act of terrorism. In R v G; R v J  UKHL 13, the House of Lords ruled that “to fall within [s.58], the information must, of its very nature, be designed to provide practical assistance to a person committing or preparing an act or terrorism.”  This normative discrepancy corresponds with different levels of moral culpability. The possession of extremist propaganda, therefore, ought to be considered a separate offence.
There is international precedent for criminalising access to extremist propaganda.
Following the Christ Church mosque attack in New Zealand, Australia passed the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019. The Act creates new offences under the Criminal Code that have the effect of requiring social media platforms and other websites to expeditiously remove abhorrent violent material and refer it to the Australian Federal Police.
This offence is distinguishable from that proposed by the UK Home Office insofar as it applies to internet service providers and is limited to the audio-visual content produced by the perpetrator of the abhorrent violence itself. Nonetheless, in terms of whom it regulates, the Australian law may be compared to the UK government’s Online Harms White Paper which seeks to impose a “duty of care” onto social media companies to protect their users from harmful content, including terrorist propaganda.
How to ensure compliance with Article 10 ECHR
The main objection to criminalising the possession of “terrorist propaganda” is that this proposed offence risks infringing the right to receive and impart information under Article 10 ECHR. Propaganda, even if extremely harmful, remains a form of political speech. This concern is amplified by the fact that the definition of “terrorism” under the Terrorism Act 2000 is broad, covering any form of ideologically motivated violence across multiple contexts.
To ensure the interference with Article 10 remains proportionate, therefore, the definition of “serious harm” must be specific and narrow in scope. Depictions of physical suffering, for example, would satisfy the objective threshold anticipated by the Chief Coroner. In Australia, the 2019 Act defines “abhorrent violent material” in terms of specific violent offences that a reasonable person would consider offensive in the circumstances. It would also be essential to have guidance with empirical examples to define “glorifying and encouraging” terrorism.
Ultimately, however, the classification of what constitutes an illegitimate purpose should be determined on grounds of criminal intent alone. The reason for why this offence should be a crime of intent can be inferred from the judgement of the Court of Appeal in the 2016 case of R v Choudhary and Rahman. That case concerned the offence of “inviting support for a proscribed organisation” under s.12 Terrorism Act 2000. This is an offence which engages Article 10, comparable to the proposed offence of possessing extremist propaganda. In its ruling, the Court said the prohibition was a proportionate interference with the right to free speech because the “requisite intent”  could be established. Recklessness, therefore, is not an appropriate standard for criminalisation when applied to speech or political communication more generally.
Problematically, legislative change since Choudhary has undermined the reasoning of the Court of Appeal. The CTBSA 2019 extended the s.12 offence beyond knowingly inviting support to “expressions of support” and being “reckless” as to whether they will encourage support for a proscribed group.
There is a legitimate concern, therefore, that if the possession of extremist propaganda was criminalised through amendments to existing statute, the standard of recklessness might unjustly be applied to the crime of possession. This is similar to the argument which justifies not seeking to work within the parameters of s.58. It follows that the best way to safeguard proportionate interference with Article 10 is to legislate for a new offence with a clear mens rea standard of intent.
There are, of course, legitimate reasons for why one might be in possession of extremist propaganda. Two obvious cases – also cited in s.58– are academic research and journalism. The offence of possession, therefore, should be subject to a defence of reasonable excuse or working in the public interest. This defence should also extend to circumstances where a person did not know, and had no reason to believe the material in their possession glorified terrorism. The new Australian statute provides for similar defences.
The proliferation of “terrorist propaganda” poses a major challenge to international security. There is a normative and practical case for establishing a new offence to criminalise its possession. To ensure compliance with Article 10 HRA, any new offence must be: (i) narrow in scope; (ii) limited to cases where criminal intent can be proven; and (iii) subject to a statutory defence of “reasonable excuse”.
Sapan Maini-Thompson is training to become a barrister. He tweets @SapanMaini.
This article was originally published on the The UK Human Rights Blog, republished here with permission. You can follow the UK Human Rights Blog on Twitter: @ukhumanrightsb and find them on LinkedIn HERE.