UK: Incitement of Terrorism

We are living through challenging times. Two weeks ago we learned that OFCOM, the UK broadcasting regulator, could not take action against a London-based radio station accused of inciting violence against non-Muslims. This followed hard on the heels of an innocent man shot dead at Stockwell Station. Our liberal and authoritarian instincts each struggle for attention.

In this fast-moving, emotionally heightened environment, how does the law deal with those who incite others to commit acts of terrorism?

This is the starting point in any discussion about free speech. The Act recognises we live in a democratic society. Any interference with freedom of expression must be carefully monitored. But freedom of expression is not an absolute. It will be subject to such restrictions that are necessary in the interests of national security or public safety, or for the prevention of disorder or crime. These restrictions may change from time to time.

It is an offence at common law to incite another person to commit a criminal offence – here, the criminal offence of "Terrorism".

The Terrorism Act 2000 defines terrorism - serious violence against a person, serious damage to property, endangering a person's life (other than that of the person committing the action), creating a serious risk to the health and safety of the public, and any action designed seriously to interfere with or disrupt an electronic system.

But inciting such an action is not enough. Terrorism is concerned with motives. In particular:

• The action must be designed to influence government or to intimidate the public or a section of the public

• The action must be made for the purpose of advancing a political, religious or ideological cause.

Inciting violence for violence sake would not be incitement to terrorism.

The Terrorism Act creates a specific offence where a person incites another person to commit an act of terrorism wholly or partly outside the United Kingdom. The motives discussed above must also be present. But the action being incited would have to amount to one of the following offences if committed in England: murder, wounding with intent, poisoning, causing an explosion, or endangering life by damaging property.

It is immaterial whether the person incited is in the UK at the time of the incitement.

It is unlikely that there have been more than a handful of prosecutions for incitement to commit terrorism. The meaning behind a defendant’s language (especially if in a foreign tongue) and determining the purpose behind his utterances raise considerable obstacles.

The Government tried to overcome these problems in its Anti-Terrorism Crime and Security Act 2001 (ACTSA). This included powers to detain foreign nationals suspected of involvement in terrorism but who could not be deported (for instance, because of the risk of their being subjected to torture or inhuman or degrading treatment in their countries of origin).

Just before Christmas, the House of Lords ruled these detentions unlawful. They were discriminatory in that they only applied to foreign nationals and were not proportionate to the terrorist threat.

The Government had to think again. From 22 February 2005 the detentions were replaced by "Control Orders". These can impose conditions such as prohibitions on access to specific items or services, and restrictions on association with named individuals, and on movement or curfews. They would not include detention in prison.

Then just a week ago the Home Secretary announced a list of grounds for deporting or excluding people from the UK. These cover any non-UK citizen whether in the UK or abroad who uses any medium (including preaching or running a website) to express views which:

• foment, justify or glorify terrorist violence in furtherance of particular beliefs;

• seek to provoke others to terrorist acts;

• foment other serious criminal activity or seek to provoke others to serious criminal acts; or

• foster hatred which might lead to inter-community violence in the UK.

It is likely that these powers will also be challenged under the Human Rights Act.