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Thread: Terrorism policy 'in tatters'

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    Terrorism policy 'in tatters'

    Yesterday we had a lesson in legal precedent.

    Today: statutory interpretation.

    s. 57(1) Terrorism Act 2000 states:
    Quote Originally Posted by Terrorism Act
    A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism.
    So, how do we establish the offence has been committed by the defendant?

    • it must be a person (this would include a company, incidentally, which is a ‘legal person’);
    • the person must possess;
    • the possession must be of an article;
    • the circumstances of the possession of that article must give rise to suspicion, and that suspicion must be reasonable;
    • the suspicion must be that the possession is for a purpose connected with:
    • the commission of; or
    • the preparation of; or
    • the instigation of

    an act of terrorism.
    Normal interpretation rules are applied to the words used. Article, for example, is of the ‘item’ type of article; this does not refer to magazine ‘articles’, i.e.

    Reasonableness is a well-known legal test: 'reasonable' is what a 'reasonable person' would think is 'reasonable'. (Another challenge to your logic circuits!)

    Commission: the explosive would be an article required for the commission of the offence.
    Preparation: large saucepans in which to cook the ingredients would be articles required for the preparation of the offence; mobile phones used to make arrangements to meet, etc.
    Instigation: a video persuading the would-be martyrs not to back out at the last minute would be an article of instigation.

    It would appear that the person charged with a s. 57 offence need not himself be planning anything, or involved in any way other than as a mule or for storage; the statute simply says ‘a purpose connected with an act’ of terrorism.

    However, I would certainly argue that the words "an act of terrorism" would require the prosecution to show that there was an act of terrorism being contemplated. Otherwise the section would read something like ‘an article that could be used for any act of terrorism’. The drafters had to consider some important things. We now know that hydrogen peroxide and sodium nitrate have been used to make bombs. We can’t have pharmacologists (in the former case) or farmers (in the latter case) falling foul of this section.

    And to ensure this, sub-section 2 reads:
    Quote Originally Posted by Terrorism Act
    It is a defence for a person charged with an offence under this section to prove that his possession of the article was not for a purpose connected with the commission, preparation or instigation of an act of terrorism.
    This is an unusual piece of legislative tautology: since sub-section 1 requires that the possession is for a particular purpose, showing that the possession was not for that purpose means that the section 1 does not apply. However, section 2 creates a 'statutory defence', just to make it clear.
    (Subsection 3 gives detail on what can be considered 'possession' and 4 sets out the penalties - up to 15 years.)
    to be continued
    Last edited by Barry Shnikov; 14th-February-2008 at 02:10 PM.

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    Re: Terrorism policy 'in tatters'

    Quote Originally Posted by Barry Shnikov View Post
    This is an unusual piece of legislative tautology: since sub-section 1 requires that the possession is for a particular purpose, showing that the possession was not for that purpose means that the section 1 does not apply. However, section 2 creates a 'statutory defence', just to make it clear.
    You're the expert, but:

    What concerns me about section 1 is the "reasonable suspicion" bit. It seems fundamentally unacceptable that someone could commit an offense simply by possessing something in circumstances deemed to be "reasonably suspicious". We've ample evidence that when it comes to terrorism, some people's definition of "reasonable suspicion", is, um, suspect.

    So it seems to me the point of section 2 is to say "it doesn't matter if the possession was thought suspicious - a valid reason for possession trumps all of that".

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    Re: Terrorism policy 'in tatters'

    Quote Originally Posted by Terrorism Act
    (1) A person commits an offence if—
    (a)
    he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, or
    (b)
    he possesses a document or record containing information of that kind.
    • Here, the critical wording is ‘information’, this is not ‘articles’, as in s.57, but ‘data' as we now call it;
    • the information must be useful to a person (who could be the person charged with the s.58 offence) committing an act of terrorism or preparing one.
    • The offence (sub-sub-section a) is in making , alternatively collecting , a record that falls under that definition; and
    • (sub-sub-section b) possessing a document or record containing such information.

    This appears to me to be rather badly drafted. What exactly were the drafters thinking when they included a record containing a record of information as a qualifying item under the section? If you have a record of such information it matters not whether it is contained in another record nor even if that is contained in another record.
    The important thing is that sub-sub-section a criminalises creating information of this type, and b criminalises possessing it.
    Again in my view, it is arguable that there must be a person in mind; this person must be preparing an act of terrorism and this must be information likely to be useful to him. Otherwise the section should read: “likely to be useful to any person committing…”
    I am less certain about this. Because the construction is ‘likely’ to be useful, as a prosecutor I would argue that this introduces a conditionality into the grammar which is not affected by the use of ‘a’ rather than ‘any’.
    Sub-section 2 clarifies that photographs or electronic data and files are included in ‘record’ (and sub-sub-sections 5, 6 and 7 deal with forfeiture of such records)
    Sub-section 3 provides
    Quote Originally Posted by Terrorism Act
    It is a defence for a person charged with an offence under this section to prove that he had a reasonable excuse for his action or possession.
    So, a journalist would have a defence provided he could show he was preparing an article on terrorism, or that it is a subject of which he writes from time to time and the records he has were for background information.
    This is why I believe that there must be a person involved who is planning something and that this information will assist him or her: otherwise, simply visiting a web-site that discusses or deals with terrorism could result in a cookie or a cache of that web-site being ‘created’ or ‘collected’ by your computer, and thus criminalise your web-surfing. I don’t believe that Parliament intended to criminalise the ordinary activity of citizens informing themselves about the world they live in.

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    Re: Terrorism policy 'in tatters'

    Quote Originally Posted by David Franklin View Post
    You're the expert, but:

    What concerns me about section 1 is the "reasonable suspicion" bit. It seems fundamentally unacceptable that someone could commit an offense simply by possessing something in circumstances deemed to be "reasonably suspicious". We've ample evidence that when it comes to terrorism, some people's definition of "reasonable suspicion", is, um, suspect.

    So it seems to me the point of section 2 is to say "it doesn't matter if the possession was thought suspicious - a valid reason for possession trumps all of that".
    No, you're right. Sub-section 1 requires reasonable suspicion; sub-section 2 gives a 'legitimate reason' defence. Without sub-section 2 the only defence (given that the facts of possession are made out) would be to show that any suspicions were not reasonable.

    But don't forget the 'reasonable suspicion' bit would be determined by the jury: the judge should direct them as to the exact meaning of reasonable suspicion - reasonable man is not 'reasonable policeman' or 'reasonable home-office spokesman'.

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