Ellen Parker, Implementation of the Uk Terrorism Act 2006the Relationship Between Counterterrorism Law, Free Speech, and the Muslim Community in the United Kingdom Versus the United States

• Citation: Vol. 21 No. 2
• Publication year: 2007

IMPLEMENTATION OF THE UK TERRORISM ACT 2006-THE RELATIONSHIP BETWEEN COUNTERTERRORISM LAW, FREE SPEECH, AND THE MUSLIM COMMUNITY IN THE UNITED KINGDOM versus THE UNITED STATES

When the American Colonies declared independence from Great Britain in

1776, the colonists derived the United States legal system from the British legal system.¹The two nations have been close allies in the "war on terror" in the new millennium.²Although both the United Kingdom and the United States have taken tough stances in their fights against terrorism,³the two countries have adopted differing strategies for the early interception of terrorists.⁴The United Kingdom uses criminal law processes and has broadened the net to capture those whose speech itself glorifies terrorism.⁵

The United States reaches planning activity, as well, through the combined use of traditional criminal statutes such as conspiracy and the U.S.A. Patriot Act ("Patriot Act"),⁶which focuses on surveillance, immigration, and terrorism financing, but steers clear of criminalizing speech.⁷The United Kingdom enacted the Terrorism Act 2006⁸-an Act passed after the July 2005 London bombings.⁹Specifically, the Act outlaws statements that glorify terrorism.¹⁰

Thus, despite similar legal backgrounds and similar stances on the war against terror, the United Kingdom's counterterrorism legislation has gone much farther than the United States' to restrict civil liberties, particularly the freedom of speech.¹¹The UK Terrorism Act 2006 ("2006 Act" or "Terrorism Act"), which would be unconstitutional in the United States,¹²received vast criticism within the United Kingdom for violating free speech.¹³Because its proponents overcame serious hurdles to pass the controversial 2006 Act,¹⁴one would assume that the 2006 Act would be vigorously used by British authorities to prosecute terrorists. As it turns out, it is not.¹⁵Perhaps the 2006

Act is so controversial that those who pushed for its passage cannot justify its usage.¹⁶Still, although it remains virtually unused thus far,¹⁷the 2006 Act remains a viable tool for British law enforcement authorities to begin using at their discretion. If British authorities begin employing the Act as a tool to proscribe terrorist speech, free speech throughout the United Kingdom will be constrained considerably.¹⁸In fact, the threat alone imposed by the 2006 Act may already have begun a chilling effect across the United Kingdom.¹⁹

Part I of this Comment describes the two systems' terrorism laws in greater detail. Part II attributes the systems' formal differences in legal approach to (a) different free speech constraints and (b) different Muslim cultures in the two countries, which pose contrasting levels of terrorism concerns and thus divergent approaches to counterterrorism. Part II also examines the constitutionality of the UK Terrorism Act 2006 within its framework compared to its constitutionality in the United States. Part III examines specific

Terrorism, Disease, Energy Shortages, and Pandemics, OBSERVER (Eng.), Feb. 4, 2007, at 6; Chua Lee Hoong, Long Shadow of Terrorism, STRAITS TIMES (Sing.), Dec. 11, 2006. In the United Kingdom, home- grown terrorists are middle-class Muslim men from the London suburbs. See, e.g., Neighbour, supra, at 10. Home-grown Islamic terrorists, many with links to Al-Qaeda, are responsible for the July 7 London bombings and the 2004 Madrid train bombings. See, e.g., Hoong, supra. criticisms of the British approach. Part IV looks at the failure of the United Kingdom to utilize its law and discusses the divergence between the theoretical reach of the law and its actual implementation.

I. TERRORISM LAW IN THE UNITED KINGDOM AND THE UNITED STATES

A. United Kingdom: The UK Terrorism Act 2006²⁰

The July 7, 2005 London bombings led Britain to create a new antiterrorism law²¹that increased the "flexibility of [its] proscription regime."²²The United Kingdom's new "proscription regime" gives the government the power to prosecute individuals for encouraging terrorism²³or for disseminating terrorist publications,²⁴as well as proscribe terrorist organizations that glorify terrorism.²⁵Potential punishments for violations of the new Terrorism Act include fines and imprisonment for up to seven years.²⁶

The UK Terrorism Act 2006 did not pass with ease, however.²⁷Criticism of the law led to intense national and international debate.²⁸Although Tony Blair announced his intention to create the new legislation shortly after the July

7 bombings in August 2005²⁹and the Act's debate history stressed the need for haste in passing the Act,³⁰Parliament did not pass the legislation until March

2006.³¹The House of Lords twice rejected the "glorification" provisions in the bill passed by the House of Commons.³²The House of Lords finally acquiesced and passed the bill on its third vote after the then-home secretary promised to reconsider all terror legislation the following year.³³

1. The Encouragement of Terrorism Offense³⁴

In a September 15, 2005 letter from the United Kingdom Home Secretary to House of Commons members who opposed the bill, the Secretary explained that the drafters of the Terror Act wanted to make certain that the government would be capable of prosecuting those who glorify terrorism.³⁵

Specifically, the UK Terrorism Act 2006 prohibits "[e]ncouragement of terrorism," which applies to any statement "likely to be understood . . . as a direct or indirect encouragement" of terrorism. ³⁶Drafters intended the indirect encouragement offense to "capture the expression of sentiments which do not amount to direct incitement to perpetrate acts of violence, but which are uttered with the intent that they should encourage others to commit . . . terrorist acts."³⁷Debate history of the bill also explains that because the United

Kingdom already has an offense of direct incitement,³⁸the encouragement of terrorism offense "deal[s] with those who incite terrorism [in more of a roundabout way than through direct aid,] but who nevertheless contribute to creating a climate in which impressionable people might believe that terrorism was acceptable."³⁹

According to the text of the 2006 Act, a person may be charged with the encouragement of terrorism offense for making a statement that glorifies or encourages a) terrorism in general,⁴⁰or b) a particular act of terrorism⁴¹-a past, present, or future act-that "members of the public could reasonably be expected to infer that what is being glorified . . . should be emulated by them."⁴²As for the requisite mens rea, a person may be charged with the offense if he "intends"⁴³to encourage or if he is merely "reckless"⁴⁴as to whether members of the public would be encouraged by the statement to commit terrorism.⁴⁵

Section four of the offense explains that the inquiries into "how a statement is likely to be understood" and "what members of the public could reasonably be expected to infer from it" must be determined by looking at both the http://www.parliament.uk/commons/lib/research/rp2005/rp05-066.pdf [hereinafter First Home Secretary

"contents of the statement as a whole" and the "circumstances and manner of its publication."⁴⁶Additionally, a person may be charged for encouraging terrorism even if no member of the public is actually induced to commit terrorism after hearing the statement.⁴⁷The Act deems it "irrelevant" whether anyone is "in fact encouraged or induced" to commit terrorism. ⁴⁸

2. Dissemination of Terrorist Publications Offense⁴⁹

The drafters of the Terrorism Act created the dissemination of terrorist publications offense in an effort to "tackle dissemination of radical written material by [Islamic] extremist bookshops" that is "clearly designed to encourage others to [commit] terrorist acts."⁵⁰This offense makes it unlawful to distribute, circulate, give, sell, loan, or electronically transmit a terrorist publication, or to possess such a publication with a plan to do so.⁵¹Whether a publication is a "terrorist publication" will be determined "in relation to particular conduct" a) "at the time of that conduct" and b) considering the publication's contents as a whole and the circumstances in which such conduct occurs.⁵²

Id.

Like the encouragement of terrorism offense, a person commits a dissemination of terrorist publications offense if, at the time he engages in such conduct, a) he intends to directly or indirectly encourage terrorism or b) "he is reckless as to whether his conduct" encourages or assists in the commission of terrorism.⁵³

The definition of a "terrorist publication" in the dissemination offense is similar to the definition of "statement" in the encouragement offense.⁵⁴A publication is a "terrorist publication" if it is likely "to be understood . . . as a direct or indirect encouragement . . . of terrorism." ⁵⁵Subsection four defines "matter that is likely to be understood . . . as indirectly encouraging" terrorism as any matter which a) glorifies terrorist acts and which, b) under the circumstances, "could reasonably be expected" to cause a person to believe that he should "[emulate]" the glorified acts of terrorism.⁵⁶

Like the encouragement offense, the dissemination offense considers whether the publication glorifies specific act(s)-as opposed to general act(s)-of terrorism to be irrelevant, as well as whether any person was actually encouraged by the publication to commit acts of terrorism.⁵⁷

However, the Act creates a defense to the offense of dissemination of terrorist publication and "makes it clear that those who simply transmit material which does not reflect their views" will not be convicted.⁵⁸A person claiming this defense must show that "it was clear, [under] all the circumstances," that the

Id. publication in question "neither expressed his views nor had his endorsement."⁵⁹Debate history shows that this defense attempts to prevent prosecutions against academics or librarians, as well as "a substantial inhibition to free and open expression in instruction...