Introduction
The phrase “constituting a certainty” refers to the legal requirement that rules, standards, and classifications be sufficiently clear and precise so individuals can understand their obligations and entitlements. This requirement is a principle of law that dictates the necessity for legal rules and standards to be defined with enough precision to allow for predictable application and to ensure individuals can conform to the legal framework without arbitrary or unpredictable results. The technical principle behind this concept centers on the idea that laws must be knowable and ascertainable to be legitimately binding. Key requirements for "constituting a certainty" include the absence of vagueness and ambiguity, such that a person of ordinary intelligence can comprehend the scope of the law and its application in a given set of circumstances. Formal language, precise terminology, and clear definitions are essential components to prevent the arbitrary exercise of power by the state, promoting fairness and equality before the law.
The Definition of Terrorism and Legal Certainty
The definition of terrorism, particularly as established under Section 1 of the UK’s Terrorism Act 2000, presents a considerable challenge to the principle of “constituting a certainty.” The issue arises from the breadth of the definition, which extends beyond the conventional understanding of terrorism as acts of intentional killing or maiming of civilians. International standards, exemplified by Security Council Resolution 1566 and the International Convention for the Suppression of the Financing of Terrorism, focus on these specific violent acts. The UK definition however, includes actions such as "serious interference or disruption of an electronic system," raising questions about whether these actions truly reflect the type of harm typically associated with terrorism. This divergence from international consensus raises concerns about the legitimacy and scope of the UK definition.
The case of Secretary of State for the Home Department v E illustrates this issue. While the High Court conceded that the definition of terrorism was broad, it asserted that such breadth did not equate to uncertainty. This assertion was based on the argument that the criteria were "detailed, specific, and unambiguous." However, the breadth of the definition has led to its application to situations beyond the original legislative intent, as shown by the analysis of Golder and Williams. The possibility of the definition extending to acts of peaceful political demonstrations, such as a hospital strike affecting public services, suggests that the current legal framework permits a reach that encompasses more than what was initially anticipated. This lack of a clear limit on the scope of the definition directly undermines its ability to “constitute a certainty.”
Application and Extension of the Definition
The cases of R v F and R v Gul further underscore the problem with the application of the definition of terrorism. In R v F, the defendant was prosecuted under s.58 of the Terrorism Act 2000 for possessing documents related to removing Colonel Gaddafi from power in Libya, despite the UK's later involvement in the NATO bombing campaign against Gaddafi. In R v Gul, the defendant was convicted under s.2 of the same act for disseminating terrorist publications because of YouTube videos showing insurgent attacks, even though such conflicts were considered lawful under the laws of war. These cases demonstrate how the definition of terrorism can be applied inconsistently, undermining the idea of “constituting a certainty” in its interpretation and enforcement. Furthermore, the case of Walter Wolfgang, who was detained for shouting "nonsense" during a political event, exemplifies the extent to which the law could be misused.
The Court in R v Gul, while noting the “undesirable consequences… of the very wide definition of terrorism,” declined to limit its scope, deferring to the legislature. The Supreme Court further clarified that prosecutorial discretion was not an acceptable solution to the potential for misuse, as this amounts to the abdication of the legislature's responsibilities to an unelected body. This reliance on discretion instead of clearly defined terms further diminishes the ability for the law to “constitute a certainty.” The wide scope and lack of clear boundaries, as established through case law, further illustrate the challenge in ensuring fair and predictable application of anti-terrorism legislation.
Preparing Acts of Terrorism and the Criminalization of Non-Wrongful Conduct
Section 5 of the Terrorism Act 2006, which criminalizes preparing acts of terrorism, presents a second challenge to the concept of "constituting a certainty." The act states that "a person commits an offence if, with the intention of committing acts of terrorism, or assisting another to commit such acts, he engages in any conduct in preparation for giving effect to his intention.” This provision does not require the terrorist act to be attempted or even specifically planned. This broad formulation means that any act done with the intent to commit or assist in terrorism, even if the act itself is innocuous, could be deemed an offense.
The question that arises is whether preparatory conduct, when committed with the relevant underlying intent, can be considered wrongful. The theory that intention alone can transform an otherwise harmless action into a criminal act raises concerns. For example, would a simple action such as eating breakfast be viewed as a criminal act if done by a radicalized person preparing to meet with fellow radicals? This potential for criminalizing such ordinary conduct undermines the notion that the law should provide clear boundaries and therefore “constitutes a certainty”. Furthermore, the inchoate nature of the offence, which goes beyond "more than mere preparation" as established in the Criminal Attempts Act 1981, limits the ability for an individual to withdraw from the act, diminishing individual autonomy. This departure from traditional legal norms also weakens the concept of “constituting a certainty.”
The courts have actively interpreted this legislation to cast a wide net. In the case of R v Iqbal, the Court of Appeal rejected a narrow interpretation, confirming that the scope of the legislation is deliberately extensive. The acceptance of low evidential standards, as seen in Roddis, where extremist videos were used as evidence to support conviction, further underscores the lack of certainty within this legal framework. Such evidence has a weak correlation with actual behavior, and may unduly influence juries. This broad application and relaxed evidential standards compromise the ability of the law to “constitute a certainty.”
Disseminating Terrorist Publications and Freedom of Expression
Section 2 of the Terrorism Act 2006 prohibits the dissemination of terrorist publications, including possession of such materials with the intent to disseminate them. This provision is further complicated by the inclusion of “indirect encouragement,” which includes the glorification of terrorism, or inference of that glorification. The broad interpretation of indirect encouragement raises significant concerns about its impact on freedom of expression. The proscription of dissemination of publications restricts the freedom to receive and impart information, as protected under Article 10 of the European Convention on Human Rights.
While the Court of Appeal in Ali held that the offense was “clearly lawful, proportionate and necessary,” this conclusion was disputed by the Joint Committee on Human Rights in 2005-06. The Committee noted the absence of a requirement for intent to incite terrorism, as well as the lack of a public interest or reasonable excuse defense. The lack of clarity surrounding the mens rea, specifically in regards to what constitutes “indirect encouragement,” poses a significant problem to “constituting a certainty.” The Court of Appeal in Ali declined to offer further clarification, despite the earlier interpretation in Faraz which implied that the encouragement must be a necessary implication of the publication. The ambiguity of this definition is illustrated in the case of Khan, where messages posted on Facebook, disseminated only to the defendant’s friends, resulted in a lengthy prison sentence, even when none of the friends were encouraged.
Further, the structure of the defense under s.2(9), which allows an individual to avoid a conviction if it is clear from the circumstances that they did not endorse the publication, implies a reversal of the burden of proof. The burden to prove innocence, rather than guilt being the prosecution's burden, poses challenges to “constituting a certainty” in the legal framework. Although it might be read down by the courts, as per Sheldrake v DPP, that is not what the legislation specifies. This reversal places an unfair burden on the accused, and further erodes the clarity of the law.
Collecting Information Useful to a Terrorist and the Issue of Strict Liability
Section 58 of the Terrorism Act 2000, which prohibits the collection of information likely to be useful to a terrorist, presents additional challenges to the principle of "constituting a certainty." This section requires only that the information be useful to a person with a terrorist purpose. The seminal case of R v G confirmed this principle. This broad definition has allowed for cases such as R v K where defendants argued that the section lacked sufficient certainty to comply with the doctrine of legality. While the Court in R v K stated that the information had to “raise reasonable suspicion that it was intended to be used to assist in the preparation or commission of an act of terrorism,” it also noted that it need not be useful only to a terrorist.
The case law shows an inconsistent application of these criteria. While the wording “designed to provide practical assistance” gives the impression that the information was intentionally created for a terrorist design, the cases such as Amjad, where a handwritten exercise regime was considered to fall within the scope, indicates an interpretation that focuses on intention over the nature of the material itself. Conversely, in the case of Muhammad, generic advice about avoiding authorities satisfied the actus reus. The inconsistency in application, specifically the shifting focus between intention and the practical utility of information, creates a lack of certainty and undermines the principle of clear standards.
Furthermore, the courts have held that the intention or purpose of the offender is immaterial, except as a possible defense. This effectively makes s.58 a strict liability offense. While strict liability offences are found in numerous other areas of law, s.58's potential for substantial sentences and stigma, in addition to its lack of requirement for culpability, makes it inappropriate for such a provision. This deviates from the principles of criminal law, further reducing the certainty of the legislation and its impact. Additionally, the defence that one had a “reasonable excuse” for collecting information, as stipulated in section 58(3), adds more uncertainty to the process. The broad interpretation of the actus reus, combined with the nebulous nature of the “reasonable excuse” defense, leaves the law open to arbitrary and unpredictable application.
Concluding Thoughts
The various aspects of counter-terrorism legislation, specifically the definition of terrorism and provisions concerning preparation, dissemination and information collection, reveal that they often fail to “constitute a certainty” in the legal context. The expansive scope and lack of clear boundaries, along with shifting interpretations by the judiciary and inconsistent application of the law, undermine the principles of fair and predictable justice. This conclusion is demonstrated through a review of numerous cases including R v F, R v Gul, Secretary of State for the Home Department v E, R v Iqbal, Roddis, Ali, Faraz, Khan, R v G, R v K, Amjad and Muhammad. The overreach and vagueness observed across these cases creates legal frameworks that are contrary to international conventions and fundamental rights, ultimately undermining the rule of law. The current structure of the anti-terrorism legal regime reveals the potential for considerable misuse, highlighting a critical need for legislative reform to ensure greater clarity and adherence to the principle of “constituting a certainty”. The present state of affairs requires urgent parliamentary intervention to avoid a decline in the essential freedoms fundamental to a liberal democracy.
