Does the UK need to introduce more anti-terrorism powers to its police and security services?

CONTEST 1

 

On the 22nd April a 120 page draft report of the UK Government’s new terror strategy was passed onto journalists at the Sunday Times that in essence contains proposed amendments to the UK’s anti-terrorism policy CONTEST and a proposed counter-terrorism Bill.

 

In relation to the Bill, the proposals revealed include:

 

1.       People convicted of terrorism offences receive longer sentences;

2.       Police and security services to be given the power to warn government departments, Scottish and Welsh politicians and local authorities of individuals they consider suspicious, even before they have been placed on the MI5 watch list.

 

Other proposals include:

 

1.       Increased security at sporting events and concerts;

2.       Focus on detecting ‘British jihadi’ trying to get work at airports;

3.       Improve the detections of terrorist activity involving chemical, biological, radiological, nuclear and explosive material.

 

In relation to the Prevent strand of CONTEST, which is the pre-criminal strategy to help those who are vulnerable to being drawn towards terrorism, the proposals call for more focus on communities where the threat form terrorism and radicalisation is the highest. The report says the existing Prevent strategy has been divisive, with the UK’s Muslim community saying they have been unfairly singled out.

MI5 logo

 

The potential problems the UK government face in successfully introducing these proposals includes giving the police and security services the power to warn other government departments of individuals they consider suspicious. In May 2017 it was reported that over 3,500 potential terrorists are being monitored. It will be interesting when the details are published how the UK Government is going to support the police and the security services in carrying out this task. It is proposed to increase the number of staff in the security services by 1,900 by 2020. When this was first proposed, this was to help the services deal with their current workload. Since 2010 the austerity cuts on the police has seen the number of officers in England and Wales reduced by 21,000. The policing role that has suffered the most from these cuts is neighbourhood policing (community policing), which is a key role in acting as a conduit between the public and the police, and that includes receiving information and intelligence from the community. While there has been no reduction in counter-terrorism policing, there has not been an increase in its resources either as their workload increases. Although 13 major terrorist attacks were prevented in the UK since March 2017, as seen in the 2017 attacks that were successful, it is difficult to monitor all the intelligence systems, so to meet these proposals there will have to be an increase in police staffing and funding.

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The second issue worth considering is the focusing on communities where the threat of terrorism and radicalisation is highest. Although the report acknowledges the existing Prevent strategy has been divisive, something I have pointed out in the past, this is because when it was introduced, it focused solely on the violent Islamist narrative. Since 2011, the strategy considers all forms of extremism, a message that has not successfully been communicated by the Home Office. Here is the issue regarding this proposal, who are these communities? If the language used over the last few months by the current Home Secretary, Amber Rudd, is taken into consideration it appears the communities she is referring to are the Muslim communities. Figures released by the Home Office in March 2018 reveal that out of the 6,093 referred to prevent over a third of those referrals were as a result of far right concerns. Let us not forget that the UK has witnessed a number of attacks carried out under the influence of the far right narrative that have resulted in murder, including the assassination of a British MP in June 2016 by Thomas Mair (something the Islamists have not carried out). Which communities will be monitored in relation to far right terrorism?

 

UK police and security services already have some of the widest powers under terrorism related legislation among the Western states, so it is questionable if further powers are needed. In relation to Prevent, it does need re-marketing. While not perfect, the strategy does have many successes and is a vital strand of CONTEST that requires as much support as possible both in resources and marketing. I know that the Home Office is looking to introduce a separate Prevent website that is more user friendly and interactive. With all the recent good work done in Prevent, it is important that these proposals do not return to focusing solely on the UK’s Muslim communities thereby making them suspect communities. All forms of extremism are potentially dangerous and the community that should work together is the whole of UK society, not just one or two minority communities.

Sputnik logo

 

I discussed this in more details on my interview with Sputnik Radio, which you can listen to on the link

 

Terrorist Incident in Trebes France

Trebes

In relation to Islamist inspired terrorist attacks it has been relatively quiet in Europe over the past few months but once more France has suffered another tragic attack where it is reported that three people have been killed.

The gunman, who has not been named but is believed to be a Moroccan, has been shot and killed by the French police. The incident started in Carcassone where the gunman hijacked a car killing the passenger and injuring the driver. En route to the supermarket in Trebes he shot a wounded a police officer who was jogging. Reported to be heavily armed, the gunman entered the supermarket in Trebes taking staff and shoppers hostage.

salah abdeslam

It is reported that the gunman had pledged allegiance to Islamic State and demanded the release of Salah Abdeslam who was involved in the November 2015 Paris attacks and who was recently convicted of terrorist offences linked to those attacks. Although more information has yet to be released, it does appear that once more we have witnessed another tragic act of terrorism committed by a person who has been inspired by the Islamist narrative of the group Islamic State rather than acting under direct orders of the group. While Islamic State have lost control of key territory in Syria/Iraq and Libya, this incident reveals how potent the narrative of Islamic State still is in influencing the vulnerable and inspiring people to carry out acts of violence in the group’s name. Their media activities via electronic communications has not decreased and this attack should put us all on notice of the potential threat Islamist groups still pose to Western states’ security.

ACT Campaign

We can all play our part by passing information of activity we think is suspicious to the police and in the UK this is part of the current ACT  Campaign Action Counters Terrorism) where if you are suspicious where you can either call 0800 789 321 or compete an online form.

radio scotland logo

I will be discussing this incident in more detail on BBC Radio Scotland just after 6pm (GMT) today.

Osborne Convicted of Terrorist Murder: Time for all extreme far right groups like Britain First to be banned?

METROGRAB:Suspected  Finsbury Park attacker is detained by police and members of the public
Photo credit: Nawaf Atiq/ Facebook
https://www.facebook.com/nawaf.atiq

Darren Osborne has been convicted of murder and the attempted murder of nine others when he drove a van into Muslim worshippers at Finsbury Park in June 2017. Osborne received a life sentence where he will serve a minimum of 43 years in prison. While tried for murder, as it usual with terrorist incidents when persons are killed, the political cause (here extreme far right) was a sentencing factor and the trial judge, Mrs Justice Cheema-Grubb stated that Osborne’s actions was a terrorist attack as he intended to kill.

It is important we recognise the dangers the extreme far right pose to the security and safety of citizens, not just in the UK but globally. Extremism in all its forms from Islamist to extreme far right.

National Action 2

In the UK, while the UK extreme far right group National Acton was proscribed in December 2016 as a terrorist organisation (that was followed the groups morphed after National Action was proscribed, Scottish Dawn and NS131), there are other extreme far right groups whose extremist message is influencing others towards violence carried out in their name. That violence is invariably targeted towards minorities, that for many far right groups does not just focus on race and religion but sexuality and political views.

Jayda Fransen court case

The group Britain First is a prime example of an extreme far right group the UK government should seriously consider proscribing as a terrorist organisation. Currently its leader, Paul Golding, and its deputy leader Jayda Fransen are on trial for allegedly carrying out religiously aggravated harassment. The pair  targeted a person related to a rape trial. This is not the first occasion Golding and Fransen have been arrested and appeared in court. There are many examples  including in December 2017 Fransen appeared at Belfast Magistrates Court for allegedly using anti-Islamic comments. In December 2016 Golding was jailed for eight weeks for breaching  am injunction prohibiting him from entering mosques in Bedfordshire. In November 2016 Fransen was convicted for religious aggravated harassment, receiving a £2,000 fine.

Britain-First-badge

While Britain First’s mission statement does not explicitly state it is anti-Islamic, there is a picture of Golding and Fransen with their supporters with a banner saying ‘Time to fight Islamic terror’. The statement says Britain First’s policies are pro-British, loving ‘our people, our heritage and culture’, defending them no matter what odds the group faces, the question is who is ‘our’? The statement is clear the group is anti-foreigner,. anti-asylum seeker and anti-migrant, adding that Christianity, that the group sees as the bedrock and foundation of Britain’s national life, is under ‘ferocious assault, with Christians facing discrimination and persecution.

donald trump 1

It is perhaps time now for the UK government to proscribe Britain First as their narrative does influence others to believe their skewed and warped ideology. The problem of them being free to release anything they want to say is the group can grasp any legitimacy of its narrative, especially when that legitimacy comes from an unexpected source like the US President. In November 2017 US President, Donald Trump retweeted three of Fransen’s tweets that purported to show actions of Muslims , with those actions being shown to be a false depiction of what Fransen was using them for. Fransen jumped on this using it to legitimise Britain First’s narrative claiming that the US President supports them. This incident caused a bitter row between the UK Prime Minister, Theresa May and Donald Trump. Donald Trump has since said he is prepared to apologise for retweeting Britain First’s tweets, claiming that he had no knowledge of what the group stands for.

Although small in membership numbers, groups like Britain First and National Action do inspire others to carry out violent attacks. This is why they should all be proscribed a it gives the security services and the police wider powers and a wider number of offences to deal with the far right. This is seen in the number of arrests there have been on members of National Action, where even in January 2018 six alleged members of National Action were arrested in the UK. In addition to the wider powers being proscribed organisations reduces the platforms from which to spread their damaging and dangerous narrative with which to inspire those less aware of current affairs or special issues from carrying out acts of violence. Anything that does this has to be a positive move.

prevent logo

It is important counter-narratives are developed and used against all forms of extremism and this is an important strand of Prevent strategies. While Prevent has had its problems in the past, there is no credible alternative to use at the moment and the strategy does work. We should all work towards the goal of helping those who are vulnerable to being drawn towards terrorism by producing an effective counter-narrative and making as hard as possible for any extremist group to get their message out.

UK Cybersecurity: Claims that a major cyber attack is due

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The head of the UK’s National Cyber Security Centre, Ciaran Martin has said that so far the UK has been lucky to avoid a ‘category one’ cyber attack targeting the UK’s infrastructure. This can range from UK defence systems, energy companies and financial institutions (both public and private). Martin’s warning follows on from the UK’s Chief of General Staff, General Sir Nick Carter who echoes similar concerns, in particular that posed by recent Russian activity, both militarily and in cyber space.

trident submarine

In January 2018 these concerns have been made public by a number of authorities including the Royal United Services Institute (RUSI) where in early January at RUSI Dr Beyza Unal and Dr Patricia Lewis presented a paper examining the threats and vulnerabilities of cyber security, especially in relation to nuclear weapons systems. They presented the consequences a cyber attack would have, including the problems it would pose to the UK’s Trident missile system. Essential in helping to prevent a cyber attack is in having constant risk assessments to monitor potential weak areas and to have analogue systems replaced by digital ones.

Key to protecting the UK’s cyber systems is the role GCHQ and the Ministry of Defence play and that includes adopting a cyber offensive approach. We all rely on cyber related equipment, none more so than the public sector and major private businesses and institutions. So it is essential that these concerns are acted upon (and financed properly), as going public with these concerns are not to be taken lightly.

BBC Radio Merseyside logo

Here is a link to my interview with BBC Radio Merseyside on this topic that is 39 minutes 27 seconds in

Is EU data protection law hampering terrorism and serious crime investigations?

Irish high court

In February 2018 the Irish High Court will assess if Irish legislation governing the retention and access to telecommunications data is compatible with EU law. This will not be the first time a  case regarding EU data protection law and the retention and access to telecommunications emanated from Ireland. The Irish campaign group Digital Rights Ireland brought a case to the Irish courts that ended up in the EU’s Court of Justice of the European Union (CJEU) where the compatibility of the EU’s Directive 2006/24/EC with EU law protecting privacy rights and protection of personal data was examined. Introduced following the terrorist attacks in Madrid 2004 and London 2005, the 2006 Directive laid down an obligation on publicly available electronic communications services or public communications networks to retain certain data generated or processed by them that would assist in investigating and prosecuting terrorism and serious crime cases.

CJEU

In the case of Digital Rights (2014) the CJEU found the 2006 Directive would  for a number of reasons (reasons underpinned by the 1995 Data Protection Directive 95/46/EC and articles 7, right to privacy, and 8, protection of personal data in the EU’s Charter of Fundamental Rights and Freedoms – CFRF) the 2006 Directive was invalid.  Among those reasons it included that the retention of the data was indiscriminate, the grounds for limiting the rights were too broad and not sufficiently specific, there was a lack of judicial authorisation or scrutiny and there were insufficient safeguards protecting those rights.

In December 2016 the CJEU was again requested in the Tele2 case to examine the compatibility of EU law protecting personal data, this time with the statutes in Sweden and the UK that were then covering the retention and access to telecommunications data linked to investigations into terrorism and serious crime. In Tele2 the CJEU also examined article 52 CFRF and the EU’s 2002 e-Privacy Directive 2002/58/EC.  Both Sweden and the UK’s statutes were found to be incompatible with EU law and therefore invalid. In Tele2 the CJEU did recognise that fighting terrorism and serious crime was important enough to be an objective of general interest to limit citizens’ rights to protection of personal data but added:

‘…however fundamental it may be, it cannot itself justify that national legislation providing for the general interest and indiscriminate retention of all traffic and location data should be considered to be necessary for the purposes of that fight.’

The CJEU held that for the retention and access to telecommunications data to meet EU law requirements:

1. The limitation of the exercise of rights and freedoms must be provided for by law; and
2. The limitations must be subject to the principles of proportionality; and
3. The limitations must be necessary; and
4. The limitations must meet the general interest recognised by the EU.

It can be argued that in their judgement the CJEU’s guidance to both Member State legislators and state investigatory bodies, the CJEU itself has lacked being specific as to essential criteria necessary and must be present to ensure when the objectives of fighting crime and terrorism meet the limitations as to the grounds of general interest that justifies the lawful retention of telecommunications data. The same can be said regarding providing guidance on what grounds would justify necessity. Throughout the judgement in Tele2 the CJEU repeat that to be compatible with the principle of proportionality conditions laid down in national legislation must not exceed the limits to what is strictly necessary. On what is regarded as strictly necessary the CJEU state national legislation must be based on objective criteria defining the circumstances and conditions under which competent authorities can access the telecommunications data. The Court added, presumably as a guidance, that access can only be granted:

‘…in relation to the objective of fighting crime, only to the data of individuals suspected of planning, committing or having committed a serious crime or of being implicated in one way or another in such a crime.’

Adding:

‘[In] particular situations, where for example vital national security, defence or public security interests are threatened by terrorist activities, access to the data of other persons might also be granted where there is objective evidence from which it can be deduced that that data might, in a specific case, make an effective contribution to combating such activities.’ ([2016] All ER (D) 107, paragraph 119)

To ensure these conditions are fully met the CJEU held that as a general rule an authorisation to access and disclosure of telecommunications data be reviewed by either a court or an independent administrative body with the court or body’s decision being made following a reason request by the authorities that the purposes are for the prevention, detection or prosecution of crime. This echoed the CJEU’s decision in Digital Rights.

While prima facie the guidance provided by the CJEU in Tele2,  seems clear and laudable, this guidance only applies to certain investigations into serious crime or terrorism, and would arguably be more pertinent to serious crime investigations rather than terrorism investigations. Understanding why the CJEU limits its guidance that at times seems at variance with national courts, especially those in Member States with a common law legal system like Ireland and the UK could be explained in the rules concerning statutory interpretation. In common law jurisdictions the courts apply one of three rules, the literal rule, the golden rule and the mischief rule. In essence the courts apply the literal rule where statutes are to be interpreted using the ordinary meaning of the language of the statute unless a statute explicitly defines some of its terms otherwise. In other words, the law is to read, word for word and should not divert from its true meaning. The golden rule applies where the courts see an application of the literal rule leading to an absurdity, then the courts may then apply a secondary meaning. The mischief rule should only be applied where there is ambiguity in the statute where under the mischief rule the court’s role is to suppress the mischief the Act is aimed at and advance the remedy.

However, these traditional statutory interpretation rules are not seen as applicable when interpreting national law with EU directives and considering the CJEU’s decision making. This could be due to virtually all of continental European states’ jurisdciaitons not having a common law legal system, with their courts’ role being solely statutory interpretation, which is what is seen with the CJEU. In these circumstances two methodological rules have been identified in CJEU case law, the interpretative priority rule and the presumption of compliance rule.

Regarding the interpretative priority rule, national courts must favour the interpretation of the national legislation which is the most consistent with the result sought by the directive. The aim here is to achieve an outcome compatible with the provisions of the directive that is consistent within all of the Member States. The presumption of compliance rule is a presumption that the national court intended to transpose the directive fully into national law with a court assuming that the national legislature intended to comply entirely with the requirements of the directive. The presumption of compliance rule can result in problematic consequences in the event the national legislation or the ruling by the national court contains inadvertent inconsistencies with EU law. This occurs where a specific objective of an enactment in national law contradicts the directive’s requirements as subsequently interpreted by the CJEU and there is no indication the national legislature realised the presence of the inconsistency.

Compared to national courts in common law jurisdictions who have traditionally been granted a much wider leverage in their statutory interpretation rules, the EU rules could be perceived as fettering the national court judges’ traditional decision making and limiting in relation to guidance provided in judgements regarding how EU law is applied. This is relevant not just to national legislatures, but also to agencies that particular EU law applies to. It is submitted that this is because common law jurisdictions are used to having both the ratio of the case and obitur dictum in their case reports where, in most cases, common law courts’ obitur is generally more extensive than that seen in case reports on European judgements. Accepting that obitur is not the decision only persuasive argument, a wider and more expansive obitur is also useful in guiding agencies’ actions when applying the law in circumstances that do not quite match those in the facts of a case report. As seen in both the CJEU’s decisions in Digital Rights and Tele2 the guidance provided is more limiting than that seen in Member States’ national courts with a common law legal system when interpreting non-EU national law. This may be due to the difficult task that in trying to harmonise EU law among 28 Member States and the variance of legal procedures among those states, the CJEU is trying not to be too prescriptive in its decision making that could result in either providing too wide or narrow an interpretation of EU law.

The impact these cases have had on EU Member States’ national law can be seen in the following. In response to the Digital Rights decision, the UK introduced the Data Retention and Investigatory Powers Act 2015 that required communications operators to retain telecommunications data up to a period not exceeding 12 months. It also allowed for authorisation of interception warrants to UK intelligence and policing agencies to access the communications data when necessary in the interests of national security, to prevent or detect serious crime or to safeguard the UK’s economic well-being. This was the UK statute that the CJEU in Tele2 found to be incompatible with EU law. In March 2015 a national Dutch court in The Hague followed the CJEU’s decision in Digital Rights and found Holland’s surveillance and data retention law fell under the EU law and the CFRF. As the Dutch law failed to conform adequately to articles 7 and 8 of the CFRF, along with the court also finding insufficient safeguards, the Court suspended the Dutch law.Applying the Digital Rights decision similar legal issues were found in the respective domestic statutory provisions regarding surveillance of communications post-Digital Rights by the respective judiciaries in Sweden, Romania and Belgium where their respective courts have held their legislation to be in breach of EU law. This raises the question of how can state bodies investigating terrorism and serious crime legally access telecommunications data?

FaceTimeskypewhatsapp

Especially since the introduction of the e-Privacy Directive in 2002  we have seen the growth in forms of communication and the ways in which people carry out transactions from banking online, shopping online (including booking travel), send messages and speak to each other in various messaging services including Skype and FaceTime where people can converse while seeing each other. There are also encrypted messaging services that have been used by criminals and terrorists from Telegram to WhatsApp. Recently the likes of WhatsApp has been the preferred form of communication by criminals and terrorists as it is encrypted and apart from sending written messages, with this App individuals can send recorded voice messages to each other as well as pictorial images. Once cannot compare the technological wizardry that was the Nokia mobile phone to the i-Phones we have now that are in essence pocket sized computers. As such it is time the EU looked to introduce legislation that allows for internet and communications service providers to retain their telecommunications data for at least up to 12 months and allow state investigative bodies investigating acts of terrorism and serious crime access to that data. Since 2007 there have bee too many examples of how effective access to this data has been in the arrest and subsequent conviction of terrorists and those committing serious crime.

No doubt some reading this will have concerns over the state conducting widespread surveillance on its citizens and cite the US’ NSA and the Snowden revelations. In the protestations of the potential for state surveillance of telecommunication data an anomaly exists as many mobile phone and internet users do not appear to be so hesitant in passing on personal data, including sensitive data to private companies, including communications and internet service providers. In his book ‘Dawn of the New Everything: A Journey Through Virtual Reality’  the former Facebook president, Jaron Lanier says that based on the information individuals provide who they become friends with, what they buy and the news they consume is based on these providers’ algorithms adding that internet companies monitor their users’ habits and interests, which they feed into those companies’ algorithms. Yet, once the state agencies say it wants communications and internet service providers to retain their data in order to gain access to that data when the circumstances exist in relation to serious crime and terrorism, many individuals express a deep concern that the state is turning into a big brother state monitoring their every movement. This is not the case as many senior security service and police officers regularly state, the resources in both staffing levels and equipment are limited and as such both the security services and the police literally cannot monitor the electronic communications of every citizen, they can only target those who pose a threat to state security or who are involved in criminality.

The interests of national security and personal rights are not exclusive issues, but are inclusive and in today’s society we must all accept that state bodies investigating terrorism and organised crime must be able to have access to telecommunications data to deal effectively with terrorists and criminals. As such it is time the EU stopped paying lip service to this notion and fully recognised this by introducing legislation that allows this while effectively balancing citizens’ rights.

My terrorism book cover

You can read more detail on these issues in my forthcoming book ‘Terrorism: law & Policy‘ and I am currently writing an article on this issue and the Irish Dwyer appeal case that will be published after the appeal hearing.