Law news and Law Reports from The Times - Times Online

Law news and Law Reports from The Times - Times Online

The Times
November 22, 2005Milton was right. Truth is stronger than factionBy David Pannick, QC
“IT IS a fair summary of history,” as Mr Justice Frankfurter observed in the United States Supreme Court in 1950, “that the safeguards of liberty have frequently been forged in controversies involving not very nice people”. The Government’s proposals, in the Terrorism Bill, to make it a criminal offence to encourage terrorism and to glorify terrorism undoubtedly address the conduct of some very unpleasant people who sympathise with the July 7 London bombings. But the proposals are unprincipled, unjustified, and unlikely to make any significant contribution to the battle against terrorism.
Clause 1 of the Terrorism Bill will make it a criminal offence, punishable by imprisonment for up to seven years, for a person to make a statement “that is likely to be understood” as “a direct or indirect encouragement or other inducement” to commit, prepare or instigate acts of terrorism. Defendants are guilty of this offence if they intend their statements to be so understood, or are reckless as to whether they are likely to be so understood. The Bill adds that indirect encouragement of terrorism covers any statement that “glorifies the commission or preparation (whether in the past, in the future or generally)” of any terrorist acts, so as to suggest emulation of such conduct to members of the public.
“Terrorism” is very broadly defined by the Terrorism Act 2000 to cover not just suicide bombings but any action involving serious violence against a person or serious damage to property, so long as the conduct is designed to influence the Government or to intimidate the public and is done in order to advance a political, religious or ideological cause. There are three main problems with this legislative proposal.
The first is that the Government has failed to identify how existing law is deficient. It has long been a crime to incite another to commit murder, or any other serious offence. Incitement may be general in nature. In 1881, in R v Most, Lord Chief Justice Coleridge and four other judges upheld the conviction of a man who had published a newspaper article praising the recent murder of the tsar and commending it to revolutionaries throughout the world. If prosecutions are not being brought today against Islamic militants who encourage their followers to kill infidels, that is not because of a gap in the law, but because of the absence of evidence or because of a (debatable) judgment by prosecuting authorities as to the wisdom of giving a platform to such defendants.
The second problem is the breadth of the proposed new offence and the consequent inhibitions it places on political debate. I could be guilty of unlawful “encouragement” by “glorification” if I write an article assessing Islamic fundamentalism or animal liberation or “fathers for justice”, drawing attention to previous examples of violent action to secure political goals, praising (for example) the conduct of the ANC during the apartheid years in South Africa, or those who plotted to assassinate Hitler in Germany during the Second World War. Because the new offence would apply to the encouragement of terrorism here or abroad, I could not suggest in public that the Burmese or the Zimbabwean people might be justified in damaging government property in their country in an attempt to overthrow their oppressive regimes.
There is a very heavy onus on the Government to justify preventing people from stating their opinion on political issues. One of the most valuable features of the society we are defending against terrorist attack is that we have the right to express uncensored opinions, however controversial, about government. Vigorous debate promotes the adoption of wise and effective policies. The right to say what we think is an important safety valve, the removal of which makes violence more likely.
Perhaps none of this would matter if Clause 1 made a real contribution to preventing another July 7 bombing. The third problem with the proposal is that it is unrealistic to think that it will alter the views of those irrational and inhuman enough to believe that it is appropriate to set off a bomb on a bus or a train in supposed support of the policies (whatever they are) of Islamic fundamentalism.
In our society, any statements purporting to defend such indefensible conduct rightly attract widespread revulsion. To make it a criminal offence to express sympathy with such behaviour would drive the warped message underground and prevent the proponent from being exposed, answered, condemned and (if a foreign citizen) deported. I prefer to know which people, representing which groups, seek to justify what happened on July 7. Some of us still hold to the unfashionable principle stated by John Milton in Areopagitica (1644): “. . . who ever knew Truth put to the worse, in a free and open encounter?”
The author is a practising barrister at Blackstone Chambers in the Temple and a Fellow of All Souls College, Oxford