Introduction:

Lord Carlile in 2007 considered the current domestic definition of terrorism contained within the Terrorism Act 2000 (henceforth ‘TA 2000’) to be both practically adequate and consistent with international perspectives [1]. It will be argued that a decade later, Lord Carlile’s views are now outdated. Firstly, because the TA 2000 is only consistent with international comparators in certain common elements of the definitional composition. Secondly, because the definition under the TA 2000 is inadequate in its current capacity, owing to its detrimental effect upon the rule of law.

 

Definitional Consistency or Inconsistency?

On a basic level, clear consistencies in content are evident – the need for evidence of violence or threats, serious harm and political motivations – between the TA 2000 and international comparators. Grozdanova argues these common elements ‘suggest a partial shared understanding of what constitutes terrorism’ [2]. However, Grozdanova explicitly elicits that international understanding is only “partial”, of which is nowhere near international consensus on the issue [3]. Moreover, there have been many unsuccessful international endeavours to define terrorism, and this clearly demonstrates that there is not enough agreed upon for states to come to a consensus on the definition of terrorism.

Furthermore, the Supreme Court in R v Gulstated “that there was no internationally agreed definition of terrorism” and so there were no international treaty obligations to consider [4]. The Supreme Court’s outright dismissal of the appellant’s submission that there were international treaty obligations to abide by casts doubts over the validity of Lord Carlile’s statement. Essentially, this judicial decision epitomises the lack of international consensus on a definition of terrorism, clarifying that consistency is impossible where nothing is agreed.

Finally, Lord Carlile comments on the many attempts to define terrorism are indicative of the lack of international consensus on the issue. He stated in his report that ‘conclusions were diverse’ [5]. Evidently, there are internationally agreed elements of what constitutes terrorism, but there is still a considerable amount to be agreed upon between states to have a complete definition. Thus, there is a conclusive lack of consistency between the TA 2000 and international comparators.

 

The Terrorism Act 2000: Useful and Fit for Purpose?

Lord Carlile’s assertion that the definition of terrorism within the TA 2000 is useful and fit for purpose is outdated in relation to the current difficulties faced. The definition of terrorism within the TA 2000 was explored in R v Gul[6]. The Supreme Court unanimously upheld the appellant’s conviction, stating

“it is difficult to see how the natural, very wide, meaning of the definition can properly be cut down by this court” [7].

The court reasoned that the definition under the TA 2000 was “indeed intended to be very wide” by Parliament [8]. This broadness of the definition under the TA 2000 leads to a ‘chilling effect’, which causes people to omit to partake in activities because of the risk that they could be prosecuted under this broad legislation. This chilling effect demonstrates how the broad definition of terrorism contained within the TA 2000 goes against the rule of law. Legally speaking, the chilling effect displays a lack of clarity due to the definitional broadness. Thus, the Act is less useful than Lord Carlile submits, more so a decade after his assertions.

Furthermore, the Supreme Court in R v Gulstated that prosecutorial discretion “risks undermining the rule of law” and is thus, “intrinsically unattractive” [9]. The element of prosecutorial discretion allowed under the broadness of the definition of terrorism in the TA 2000 effectively gives discretion to decision-makers to define who fits under the definition. Clearly, when the law is founded upon the important principles of clarity and certainty, the element of prosecutorial discretion found within the TA 2000 does not render the Act fit for purpose [10]. Based on this, it is argued that Greene is correct in interpreting the use of prosecutorial discretion as a “legal black hole” [11].

It is also argued that the prosecutorial discretion extended under the TA 2000 leads to an inconsistent labelling of terrorism. This creates further problems owing to the broad nature of the definition under the Act. Allowing individuals to have a subjective view on who should be prosecuted under the TA 2000, both ‘normalises the exception’ of terrorism, whilst ‘exceptionalising the normal’ [12], relating back to the ‘chilling effect’ caused by the broad definition. Therefore, the prosecutorial discretion provided under the TA 2000 displays difficulties in its application in consideration of the rule of law, and breeds inconsistency in its legal application.

 

Alleviating Issues Effectively?

Despite these evident issues with the definition of terrorism contained within the TA 2000, the judicial system can only voice their concerns with the legislation. As they rightly stated in R v Gul, it is for Parliament to narrow the definition appropriately as the legislator, not the courts [13]. However, the courts position has been strengthened by the recent views of David Anderson QC and Max Hill QC, who are the former and current Independent Reviewers of Terrorism Legislation respectively. Both David Anderson QC and Max Hill QC advocate bringing the TA 2000 under the already “established criminal laws and procedures” of domestic law [14]. Max Hill QC goes further, stating; “The point of principle is that terrorism is crime, and all terrorists are criminals…the more that can be done under general criminal legislation the better” [15]. Using the examples of the prosecution of the murderers of Jo Cox MP and Fusilier Lee Rigby under the common law of murder, when both acts were evidently terrorism, Max Hill QC demonstrates how ‘confusion currently reigns’ when it comes to prosecuting terrorism [16].

Following this proposition, Lord Carlile’s statement on the TA 2000 appears oblivious to addressing the problems the TA 2000 definition is causing. Thus, it is argued in taking account of the perspectives of David Anderson QC, Max Hill QC and the Supreme Court in R v Gul, that prosecuting terrorism under the arguably capable domestic criminal law legislation would be the preferred method in alleviating the issues with the TA 2000, rather than continuing to utilise flawed legislation [17].

 

Conclusion:

Two strands of argument have arisen. Firstly, that despite common elements of a definition of terrorism being tangibly visible throughout various international comparators, there are clear differences between state actors’ perspectives on the definition of terrorism, and thus underlying consistency in a disputed and intangible concept is impossible.

Secondly, the current definition under the TA 2000 is neither useful nor fit for purpose. Lord Carlile’s statements regarding the TA 2000 are outdated in consideration of the current problems faced by the definition. The obiter dictaof the Supreme Court in R v Guleffectively conveys the issues the judiciary feel ought to be rectified by Parliament legislating in a narrower manner [18]. In light of this clear resentment of the judiciary towards the TA 2000, it is argued that the perspective of Max Hill QC, to bring terrorism legislation under the domestic criminal law, would provide the stability and clarity the rule of law dictates as imperative.

 

References:

[1] Section 1, Terrorism Act 2000.

[2] Rumyana Grozdanova, ‘‘Terrorism’ – Too Elusive A Term For An International Legal Definition?’ (2014) 61 Netherlands International Law Review.

[3] Ibid.

[4] [2014] AC 1260 (SC), [57].

[5] Independent Reviewer of Terrorism Legislation, ‘The Definition of Terrorism’ (Cm 7052, 2007), 6.

[6] Gul(n 4).

[7] Gul(n 4) [38].

[8] Gul(n 4) [38].

[9] Gul(n 4) [36].

[10] Alan Greene, ‘The Quest For A Satisfactory Definition Of Terrorism: R v Gul’ (2014) 77 The Modern Law Review, 791.

[11] Greene(n 10) 791.

[12] Greene(n 10) 786-787.

[13] Gul(n 4) [62].

[14] David Anderson QC, The Terrorism Acts in 2012(The Stationary Office, London 2013) 59.

[15] Max Hill QC, ‘Lecture to the Criminal Bar Association 19th September 2017’ <https://terrorismlegislationreviewer.independent.gov.uk/lecture-to-the-criminal-bar-association-19th-september-2017/&gt; accessed 20th October 2017.

[16] Ibid.

[17] Gul(n 4).

[18] Gul(n 4).

 

Bibliography:

Cases:

R v Gul[2014]

Legislation:

Terrorism Act 2000

Terrorism Act 2006

 Secondary Sources:

David Anderson QC, The Terrorism Acts in 2012(The Stationary Office, London 2013)

Greene A, ‘The Quest For A Satisfactory Definition Of Terrorism:Rvgul’ (2014) 77 The Modern Law Review

Grozdanova R, ‘‘Terrorism’ – Too Elusive A Term For An International Legal Definition?’ (2014) 61 Netherlands International Law Review

Independent Reviewer of Terrorism Legislation, ‘The Definition of Terrorism’ (Cm 7052, 2007)

Max Hill QC, ‘Lecture to the Criminal Bar Association 19thSeptember 2017’ <https://terrorismlegislationreviewer.independent.gov.uk/lecture-to-the-criminal-bar-association-19th-september-2017/&gt;

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