Late last night, Guardian Law reported that four men (three of them aged 19, the eldest aged 24) were arrested in the West Midlands area and have been charged with engaging in conduct in preparation of terrorist acts contrary to section 5(1) of the Terrorism Act 2006. The conduct in question, so far as we are able to ascertain at the moment, relates to ‘suspicion of fundraising for terrorist purposes and of travelling to Pakistan for terrorist training.’ Training for terrorism is, incidentally, a separate offence under section 6 of the 2006 Act.
This post isn’t so much concerned with the circumstances and grounds for their arrest – information for the time being is simply too thin on the ground to go into any meaningful detail. However, the arrests provide an opportunity to put section 5 of the Terrorism Act 2006 under the microscope.
Section 5 of the 2006 Act provides –
(1) A person commits an offence if, with the intention of-
(a) committing acts of terrorism, or
(b) assisting another to commit such acts,
he engages in any conduct in preparation for giving effect to his intention.
(2) It is irrelevant for the purposes of subsection (1) whether the intention and preparations relate to one or more particular acts of terrorism, acts of terrorism of a particular description or acts of terrorism generally.
Upon conviction, the sentence…
(3) A person guilty of an offence under this section shall be liable, on conviction on indictment, to imprisonment for life.
Section 5 is effectively framed in the inchoate mode – the point of the provision is to allow the long arm of the law to activate before a ‘hot’ act of terrorism materialises with all the dreadful consequences that would naturally follow.
From a criminal lawyer’s point of view – section 5 is an incredible provision. It is incredible because the section is drafted in such a way as to make it legally possible for a prima facie offence to be committed in an infinite array of circumstances.
So far as I have been able to ascertain, there have only been four cases directly engaging section 5 to have made it beyond the Crown Court and up to the Court of Appeal (Criminal Division).
- R v Tabbakh (Hassan)  EWCA Crim 464;  Crim LR 79: Concerning the compilation of bomb making instructions.
- R v Roddis (Nicholas)  EWCA Crim 585: Concerning the possession of bomb making ingredients and instructions.
- R v Khan (Parviz)  EWCA Crim 1085;  1 Cr App R (S) 35: Concerning the possession of digital document relating to the preparation for jihad and the shipment of materials to the UK from Pakistan intended for use in connection with a terrorist plot.
- R v Iqbal (Abbas Niazi)  EWCA Crim 3215: Concerning the gathering together of equipment and weapons to be used during training for a terrorist plot.
So far as conduct goes, the list of cases above shouldn’t give rise to too much alarm, at a conceptual level at least. Possession of bomb making ingredients and/or instructions sits nicely within the ‘terrorist’ paradigm. The simple problem is that the Act need not, on its face, stop there.
Let’s put it into basic criminal law terms. The mens rea of the offence is the intention to commit acts of terrorism or assistant another in a similar enterprise. Things get tricky when we look at the actus reus. The actus reus is engaging in ‘any conduct’ (i.e. doing anything) in the preparation of giving effect to the commission of an act of terrorism.
The prosecution’s job is, therefore, as follows:
1. The identification of any conduct;
2. Establishing that the nature of that conduct is preparatory; and
3. Attaching that compound of conduct and preparation with the criminal purpose of carrying out a terrorist act.
Let us suppose that I’ve been placed on an MI5 watchlist for reasons known only to those in Thames House. They have got it into their heads that I’m harbouring designs to carry out a terrorist act, whether in concert with others or as a lone wolf. Here’s how the 2006 Act might function so as for me to end up behind a cell door charged with an offence contrary to section 5.
I’m in the habit of eating a large, greasy full English breakfast seven days a week. In a bid to get a bit healthier, I opt to switch to granola and yoghurt instead (this is the conduct). MI5 can substantiate my switch in breakfast preference because I’m in the habit of using my Nectar card when I get to the till. MI5 advise the police that my shift to a healthier lifestyle demonstrates that I’m trying to get fit (there’s the preparation) because I want to blow something up. Prima facie, this would satisfy the section sufficiently to lay grounds for my arrest.
I need to take a trip next week on the London Underground to a destination I have not been to before. On my way home from work I pick up one of those little Tube maps (this is the conduct). I’m observed doing this by an agent of the state. Have I picked up my little map to identify potential targets (there’s the preparation) for an attack on the transport network?
I take myself off to the Apple store to by a nice shiny iMac. I get home and arrange the installation of a BT broadband line so I can connect my computer to the Internet. Have I embarked on this conduct so that I am able to download bomb making instructions from the comfort of my own home?
Now, I realise the examples above may sound a bit on the daft side. But, you only have to look at the way in which section 5 is framed to see that any of those circumstances could, if I’m under suspicion, land me with an indictment for an offence contrary to section 5. Whether or not a jury could be persuaded that the offence has been made out is another matter. The point is that the section catches any conduct.
We’re all familiar with offences like murder or theft. The wrongful acts prescribed by those offences feed straight back into the outcome the offences are designed to deal with. Leaving mens rea aside, for murder I have to end someone’s life. For theft I have to appropriate property belonging to another. For an offence contrary to section 5, I can do anything, absolutely anything, whether it be buying a packet of Lockets or dowloading a bomb making manual and anything in between.
And that’s the rub. Section 5 taken to its limit, rests on the combination of even the most innocuous acts, a theory as to why you’ve engaged in that act and a suspicion that the two feed into a nasty plan.
No one wants terrorism to be allowed to occur. But, do we really want criminal offences like section 5 on the statute book?
Something to think about, I suppose…
And here’s one more thing to think about. Section 5 is an offence framed in the inchoate mode. Might it be possible to attempt to engage in any conduct in preparation for giving effect to a terrorist plot?
The image at the head of this post was taken from http://www.guardian.co.uk/uk/2011/nov/18/four-men-charged-terror-offences and belongs to Christopher Furlong/Getty Images.