You searched for free speech - Page 11 of 779

Free speech & the law: Obscene Publications

21 Jan 20 | Campaigns -- Featured, Free Speech and the Law, United Kingdom

[vc_row][vc_column][vc_column_text css=”.vc_custom_1579268532812{margin-bottom: 30px !important;background-color: #f5f5f5 !important;}”]Please note: This is part of a series of guides produced by Index on Censorship on the laws related to freedom of expression in England and Wales. They are intended to help understand the protections that exist for free speech and where the law currently permits restrictions.[/vc_column_text][vc_column_text]This guide is available to download as a PDF here.[/vc_column_text][vc_single_image image=”112007″ img_size=”large” add_caption=”yes” alignment=”center”][vc_raw_html]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[/vc_raw_html][vc_custom_heading text=”1. Obscene publications offences explained” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes” el_id=”ct1″][vc_column_text]It is nearly 300 years since bookseller Edmund Curll was convicted in 1727 on a charge of obscenity in an English court for his publication of the mildly pornographic Venus in the Cloister or The Nun in Her Smock. Obscenity was thereafter recognised as a crime under common law. Since then, the definition of obscenity has narrowed from the broad concept under common law of engendering “revulsion, disgust or outrage” (although this remains the definition of obscenity for the offence of outraging public decency) to the notoriously vague current definition under the Obscene Publications Act 1959 of “tending to deprave and corrupt”.

Obscenity law is concerned with protecting “public morals” – it seeks to steer people away from immoral or criminal behaviour and vice. The European Court of Human Rights (ECtHR) has recognised that convictions under the Obscene Publications Act 1959 – which criminalises publishing “obscene” material – interfere with individuals’ rights to free expression under Article 10 of the European Convention on Human Rights (ECHR). However, in the 1972 case of Richard Handyside v United Kingdom, the ECtHR acknowledged that prosecutions under the act were permissible under the restrictions set out in Article 10(2) of the ECHR where freedom of expression can be restricted to protect “morals in a democratic society.”[/vc_column_text][vc_column_text]

What does Article 10(2) of the European Convention on Human Rights say?

Article 10(2) says that the right to freedom of expression “carries with it duties and responsibilities”. Because of this, the right to free expression may be subject to restrictions and conditions that are necessary in a democratic society and are set out clearly in the law. To be valid, any restrictions must be for one or more of the following purposes: national security, public safety, territorial integrity, preventing crime or disorder, protecting health or morals, protecting the reputation or rights of others, preventing the disclosure of information received in confidence, and for maintaining the authority and impartiality of the judiciary.[/vc_column_text][vc_column_text css=”.vc_custom_1579616809073{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #44573b !important;}”]

Case study: Richard Handyside and The Little Red Schoolbook

The Richard Handyside case was about The Little Red Schoolbook. This was a book intended for teenagers written by two Danish authors and intended to be published in the UK by Handyside, the owner of publishing house Stage 1. It had chapters on education, learning, teachers, pupils and “the system”. However, it also had a section on sex, which contained sub-sections on masturbation, orgasm, intercourse and petting, contraceptives, wet dreams, menstruation, child molesters or “dirty old men”, pornography, homosexuality and impotence. There were also references to smoking pot and references to porn as “a harmless pleasure”. In March 1971, the Daily Mirror, The Sunday Times and The Daily Telegraph published accounts of the book’s contents, leading to a number of complaints to the Director of Public Prosecutions, who asked the police to investigate. Following a criminal trial, Handyside was convicted of possessing 1,208 obscene books for publication for gain. He was fined and the books were ordered to be destroyed.

The question the ECtHR had to consider was whether Handyside’s criminal conviction (plus the fine and the destruction of the books) amounted to a breach of his Article 10 rights to freedom of expression. The court decided that, since there was no “uniform European conception of morals”, the authorities in the UK were better placed than the European judges to determine the need for acts such as the Obscene Publications Act. It also said the British judges were entitled, in the exercise of their discretion, to think that the Schoolbook “would have pernicious effects on the morals of many of the children and adolescents who would read it”. The court found no breach of Handyside’s Article 10 rights.

However, the case did establish an important precedent because it established the principle that “freedom of expression…is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the state or any sector of the population.”[/vc_column_text][vc_column_text css=”.vc_custom_1579616619475{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #44573b !important;}”]

Case study: Obscene publications and the internet

The case of R v Perrin (Stephane Laurent) 2002 established that the creation of a web page was sufficient to establish publication and that a jury only had to be satisfied that there was a likelihood of vulnerable persons seeing the obscene material. The prosecution did not have to demonstrate that such a person actually did or would see it. Pornographic content on a web page that has the tendency to deprave and corrupt the viewer would therefore be sufficient to establish criminal liability and the court found the in this instance did not violate the defendant’s right to freedom of expression under Article 10 of the European Convention on Human Rights.

However, subsequent cases have tested this assumption (see Case dropped against Girls Aloud blogger below).[/vc_column_text][vc_column_text]In recent years, there have been multiple and increased calls to abolish the Obscene Publications Act. Because prosecutions under the act require convincing a jury that a video, sound recording or image “tends to deprave or corrupt” those receiving it – a standard judged against prevailing moral standards – there have been many recent high-profile acquittals in cases where jurors have simply been unmoved by the potentially obscene material in front of them.[/vc_column_text][vc_column_text css=”.vc_custom_1579616636337{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #44573b !important;}”]

Case study: Shocked then bored

In 2012, Michael Peacock was unanimously acquitted by 12 members of a jury at Southwark Crown Court on six counts of publishing obscene articles likely to “deprave and corrupt”. He had sold hardcore gay pornography DVDs online from his flat in Brixton. The police saw adverts and operated an undercover purchase. They found six DVDs featuring hardcore pornography and Peacock was prosecuted. The jury was shown hours of footage from the DVDs. Peacock’s defence solicitor remarked that although the jury “were quite shocked initially, they started to look quite bored very quickly”. The jury returned a not-guilty verdict.[/vc_column_text][vc_column_text css=”.vc_custom_1579616658097{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #44573b !important;}”]

Case study: Girls Aloud blogger

In 2008, a case was dropped against a blogger charged with obscenity after he wrote an erotic story detailing the kidnap, sexual torture and murder of pop group Girls Aloud. A key part of the prosecution’s case against the blogger was that his post could be easily accessed by young Girls Aloud fans. However, shortly before the trial, an IT expert gave evidence that the blog could be found only by people specifically searching for it. On discovering this, the prosecution dropped the case and the judge issued a not-guilty verdict.[/vc_column_text][vc_column_text]While many of the obscenity laws created in the latter half of the 20th century remain in place, in recent years the risk of prosecution has reduced. Following the Peacock case, the Crown Prosecution Service (CPS) recently changed its guidance to narrow what it considers “obscene”. Consensual legal sexual acts between adults such as spanking, fisting, BDSM and female ejaculation are no longer considered obscene by prosecutors, and so people who distribute or sell videos or images of such acts will likely no longer be prosecuted under the Obscene Publications Act. Equally, the number of prosecutions and convictions secured under obscenity laws in England and Wales has dropped dramatically in recent years. For example, while in 1984 there were 429 successful convictions under the Obscene Publications Act 1959, in 2014 there were just 10.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”op2″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”2. Overview of UK laws” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]The UK laws applicable to the broad area of obscenity include:

Obscene Publications Act 1959
Obscene Publications Act 1964
Theatres Act 1968
The common law offence of outraging public decency
Indecent Displays (Control) Act 1981
Video Recordings Act 1984
Protection of Children Act 1978 (please see the Child Protection Guide)
Criminal Justice Act 1988 (Possession of indecent photograph of a child – please see Child Protection Guide)
Broadcasting Act 1990
Postal Services Act 2000
Criminal Justice and Immigration Act 2008 (covering the definition of “extreme pornography”)

Below we highlight the main offences that might concern freedom of expression and the law.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”op3″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”3. The Obscene Publications Act 1959″ font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]The offence of publishing an obscene article, or possessing one for gain, is set out in the Obscene Publications Act 1959. This act states the legal test for obscenity to be applied to the offence and certain defences to the crime.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”What is “obscene”?” use_theme_fonts=”yes” el_id=”ct41″][vc_column_text]

Credit: Thomas Hawk (CC BY-NC 2.0)

Section 1(1) of the Obscene Publications Act 1959 describes an “obscene” item as one that has the effect of “tending to deprave and corrupt” persons likely to read, see or hear it. This statutory definition is largely based on the common law test of obscenity, as laid down in the case of R v Hicklin 1868, namely:

“whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.”

In cases such as Lady Chatterley’s Lover (R v Penguin Books Ltd 1961) and the prosecution of the publishers of Last Exit to Brooklyn (R v Calder and Boyars Ltd 1969), the courts have defined “deprave” as meaning to make morally bad, debase, pervert or corrupt morally; and “corrupt” as meaning to render morally unsound or rotten, destroy moral purity or chastity, pervert or ruin a good quality, and debase or defile. If the item is “filthy, loathsome or lewd” but does not tend to corrupt and deprave, it will not be obscene for the purposes of the act.

“Obscene” material is not limited to material of a sexual nature. In fact, it has been held by the courts that material glamourising or promoting potentially dangerous behaviour, such as drug-taking or brutal violence, may amount to an obscene publication. See, for example, the ruling in Calder (Publications) Ltd v Powell 1965: “A tendency to deprave or corrupt may be defined as a tendency to make people behave worse, more violently, or be more addicted to drugs than they otherwise would be.” The purpose or intention of the creator of the material, however noble or otherwise, will be immaterial to whether something is deemed to be obscene or to outrage.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”Offences” use_theme_fonts=”yes”][vc_column_text]The Obscene Publications Act 1959 makes it an offence to “publish” an obscene article (whether for gain or not). “Publish” is defined in Section 1(3) of the act and includes distributing, circulating, selling, hiring, giving, lending, showing and electronically transmitting an obscene article. If the article is an obscene film or sound recording, it is a crime to show, play or project it.

The Obscene Publications Act 1964 added the offence of merely possessing an obscene article, provided it is intended for “publication for gain”. This is intended to catch situations where an item is in a person’s possession but not yet on display or sold or distributed to a customer. For example, Handyside was convicted of possessing obscene books intended for publication for gain.

“Gain” is broadly defined. Section 1(5) of the 1964 act defines it as gain accruing “by way of consideration for the publication or in any other way”. “Consideration” will cover financial advantage. However, “any other way” is not defined further so the exact parameters of this form of offence are unclear. There can be a “publication” under the Obscene Publications Act even if the material is shown to only one person. Private conversations in internet chat rooms or on online messaging services can be publications for the purposes of the act.[/vc_column_text][vc_column_text css=”.vc_custom_1579616691016{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #44573b !important;}”]

Case study: One-to-one online sexual fantasy chat

In 2012 a convicted paedophile was charged under the Obscene Publications Act for engaging in individual online chats about the physical and sexual abuse of children: the first prosecution of an individual under the Obscene Publications Act 1959 for online one-to-one chats in which the content was fantasy. The question was whether the comments had been “published” if they were sent to only one person. The court said that publication under the act did not need to be to more than one person, and it did not matter that neither participant was wholly innocent to begin with – the act “protects the less innocent from further corruption, the addict from feeding or increasing his addiction” (quoting the case of DPP v Whyte 1972).

The prosecutor in the case stated “there will be many who focus on the fact that these conversations were private and fantasy to highlight how this decision indicates an erosion upon an individual’s freedom of expression”. However, he said the content of the discussions “was not the legal and consensual sexual activity of adults rather it was the sexual and physical abuse of children”, which he said merited the protection of the law. Smith’s lawyer, Myles Jackman, has described this case as a “landmark Court of Appeal decision extending publication under the OPA to private, one-to-one, sexual fantasy text chat via the internet; potentially criminalising millions of adults”.[/vc_column_text][vc_column_text]It is important to note that the Obscene Publications Act 1959 does not criminalise writing or otherwise creating an obscene article. Nor does it criminalise merely possessing an obscene article so long as it is not being held for future gain. It is primarily the distributors of obscene material who are penalised under the statute.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”Update to the CPS guidance on obscenity” use_theme_fonts=”yes” el_id=”ct42″][vc_column_text]

The police have statutory and common law powers to deal with disorder and to prevent anticipated disorder. They can do so by making arrests for various offences, and, importantly, by making arrests or giving directions to people to prevent breaches of the peace.

In exercising these powers, the police also have duties to give protection to the freedom of speech of all groups and individuals, and any other relevant freedoms, including the right to protest and to manifest a religion. The role of the police naturally shifts with changes in culture and the law. The current position is that the police have an obligation to ensure law and order and, as a public authority, an additional obligation under the Human Rights Act 1998 to preserve, and in some cases to promote, fundamental rights such as the right to protest and the right to freedom of expression protected by Articles 10 and 11 of the ECHR, currently incorporated into the UK’s domestic law.

The result is that the police conduct a pragmatic balancing act between the different parties. However, in certain contexts, the correct balance may not be being struck. For example, in the artistic world there have been numerous incidents where police have advised the closure or cancellation of controversial shows or exhibits in order to avoid public disorder. For example, Exhibit B – an installation showing a series of tableaux vivants recreating the 19th century “human zoo” fashion of presenting Africans as exhibits to European audiences – was closed following the police’s advice that if the show were not closed, it could trigger riots. The manager of the venue showing Exhibit B said that when police issued their “advice” to close the show, five officers stood over him while he wrote a letter agreeing to close it.

Other problems with policing controversial artwork remain. One issue is the police’s requests for fees to cover their services when policing controversial shows.

The CPS publishes its own legal guidance on “obscene publications”. The guidance details how prosecutors should approach the question of “obscenity”. Until January 2019, the guidelines listed certain sexual acts taking place between consenting adults as “obscene”. Spanking, bondage, female ejaculation and sadomasochism were included on the list, and the distribution of such images or videos was considered a criminal offence under the Obscene Publications Act 1959. However, following a campaign led by obscenity lawyer Myles Jackman and organisations for freedom of sexual expression such as Backlash, the CPS removed the sexual acts from its guidance. A spokesperson for the CPS said: “It is not for the CPS to decide what is considered good taste or objectionable. We do not propose to bring charges based on material that depicts consensual and legal activity between adults, where no serious harm is caused and the likely audience is over the age of 18.”

Prosecutors will instead now focus on pornographic material that features non-consenting adults, or where serious harm is caused, or it is linked with other criminal acts, or the likely audience is younger than 18.

As stated above, what is obscene is determined by reference to “contemporary community standards”, which inevitably change over time.[/vc_column_text][vc_column_text css=”.vc_custom_1579609930041{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #44573b !important;}”]

What is likely to be a crime under the Obscene Publications Act 1959?

Handing out pamphlets featuring images of non-consensual sex between adults.
Selling pornographic material showing serious harm being caused to the participants.
Keeping this material in your home with a view to selling it or otherwise profiting from it.
Showing this pornographic material on a projector to customers at a rooftop bar.

[/vc_column_text][vc_column_text css=”.vc_custom_1579610040718{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #44573b !important;}”]

What is likely to not be a crime under the Obscene Publications Act 1959?

Being an actor in this pornographic material.
Being in possession of the pornographic material, provided it is for private use only.
Writing the script of this material.
Thinking up or discussing it out loud with friends (although it may be a crime to discuss it online).

[/vc_column_text][vc_column_text]The likely viewer or recipient can be a specific individual or a group. Participants need not be wholly innocent to begin with – an article can be obscene if it leads to “further corruption” of the less innocent. It is not necessary that all people likely to read, see or hear the material would be corrupted. If a significant proportion (which can be much less than 50 per cent) would be corrupted, that is enough.

Defences under the Obscene Publications Act 1959

There are limited defences that apply under the Obscene Publications Act 1959. The accused may assert that they had not seen the material and had no reason to believe that it was obscene. Alternatively, they may assert that their actions were for the “public good”, as defined by Section 4. This says there will be no conviction if it is proved that the material in question is presented in the interests of science, literature, art or learning, or other reasons of general public concern. “Learning” means “being the product of scholarship, something with inherent excellence gained by the work of a scholar” (DPP v Jordan 1977).

To succeed with the Section 4 defence, the court or jury must be satisfied on the balance of probabilities that the publication was made for the public good. This means the jury must think it is more likely than not that the publication was made for the public good. Expert witnesses can be called to testify.

There is a slightly different “public good” defence for films and soundtracks. Here there is a defence if publication of the film or soundtrack is for the public good because it is in the interests of drama, opera, ballet or any other form of art, literature or learning.

There is a time limit on prosecuting an offence under the 1959 act. Prosecutors have two years from the date of commission of the offence to bring a prosecution.

Works that fall outside the scope of the Obscene Publications Act may come under the Theatres Act or the common law offence of outraging public decency, while possession of extreme pornographic images could fall under the offence set out in Section 63 of the Criminal Justice and Immigration Act 2008.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”op4″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”4. Theatres Act 1968″ font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]The Theatres Act 1968 applies a similar definition of obscenity to plays and performances. This means that anyone directing or presenting an obscene performance of a play is guilty of an offence with a maximum sentence of three years’ imprisonment and a fine. A play is obscene if, taken as a whole, its effect was to “tend to deprave and corrupt” those people likely to attend it. While the play can take place in public or in private, plays “given on a domestic occasion in a private dwelling” cannot fall under this offence. Rehearsals are also excluded, and if prosecutors want to pursue an individual for this crime, they must begin proceedings within two years of the alleged crime taking place.

Prosecutions are rare. In the early 1980s, moral campaigner Mary Whitehouse brought a private prosecution against director Michael Bogdanov for his production of The Romans in Britain but the trial collapsed in 1982.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”op5″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”5. Indecent Displays (Control) Act 1981″ font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]This act criminalises publicly displaying any “indecent matter”. “Indecent” is not defined in the act, and case law indicates something can be “indecent” without being “obscene” under the Obscene Publications Act 1959 (that is, tending to deprave or corrupt). There is no defence of the indecent material being for the “public good” as there is under the Obscene Publications Act 1959. Notably, the act does not criminalise indecent displays of one’s own (or another’s) body. Section 1(5) says that “indecent matter” does not include “an actual human body or any part thereof”. Materials in a shop that people can access only by passing behind a warning notice are also excluded from this offence.

Prosecutions under this act are rare. Between 2002 and 2004 there were only three successful convictions.

Outraging public decency

Outraging public decency is a common-law offence. This means it has been made by judges deciding individual cases over time. Outraging public decency has two elements. First, there must be a lewd or disgusting or obscene act that outrages minimum standards of public decency as judged by a jury in contemporary society. Second, the act must be in public view and in the presence of two or more people, regardless of whether they actually witness the act or are outraged by it.[/vc_column_text][vc_column_text css=”.vc_custom_1579616725941{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #44573b !important;}”]

Case study: Human Earrings

In 1987, gallery owner Peter Sylveire displayed earrings made from human foetuses by artist Rick Gibson at the Young Unknowns Gallery in London. It was described in the catalogue as “Human Earrings”. Police seized the earrings and Gibson and Sylveire were prosecuted for outraging public decency. The jury returned a guilty verdict, finding that the earrings were “obscene” in that they tended to engender disgust, revulsion or outrage.

In Sylveire and Gibson’s appeal, the Court of Appeal ruled that the so-called “Human Earrings” were not likely to “corrupt public morals”. Sylveire and Gibson could therefore not be found guilty under the Obscene Publications Act 1959, which had a stricter test for whether material was obscene or not. However, their convictions for outraging public decency remained in place.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”op6″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”6. Criminal Justice and Immigration Act 2008″ font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]Unlike the Obscene Publications Act 1959, which criminalises the distribution of obscene material, the Criminal Justice and Immigration Act 2008 criminalises the possession of an “extreme pornographic image”. An image will be “pornographic” if it was solely or principally produced for the purpose of sexual arousal. It is “extreme” if it is “grossly offensive, disgusting or otherwise of an obscene character” and it portrays any one of a number of acts in an explicit and realistic way. Extreme acts include acts that threaten a person’s life or are likely to result in serious injury to a person’s genitals, anus or breasts. Acts involving sexual activity with corpses or animals will also be extreme for the purposes of this offence.

In determining whether an image is “pornographic”, the identity or purpose of the creator or sender of the image is irrelevant – the only question is whether the image can be assumed to be produced solely or principally for the purpose of sexual arousal of anyone who came to have it. In the case of Regina v Baddiel (David) 2016, the defendant had argued that an image on his iPhone of a person performing a sexual act with an animal was not pornographic because it had been sent to “disgust, shock or amuse” and not to arouse sexually. The court said the sender’s purpose did not matter for the purposes of what was “pornographic”. If the WhatsApp image could be “reasonably assumed” to be for the principal or sole purpose of sexual arousal of whoever came to have it, it was pornographic for the purposes of the Criminal Justice and Immigration Act.[/vc_column_text][vc_column_text css=”.vc_custom_1579617776220{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #44573b !important;}”]

Case study: Possessing extreme pornography

In 2012, barrister Simon Walsh was unanimously acquitted by a jury, having been charged with five counts of possessing extreme pornography under Section 63 of the Criminal Justice and Immigration Act 2008. He was charged with possessing six email attachment images sent to his personal email account, which showed acts of fisting and urethral sounding (where surgical rods are inserted into the urethra for sexual gratification). Although the acts shown in the images were consensual, they allegedly fell under the extreme porn crime because they could possibly result in “serious injury to a person’s genitals or anus”. The defence argued that the images were not extreme because the activities were conducted safely and were relatively commonplace acts, particularly within the LGBT community.

Walsh pleaded not guilty and was acquitted by a jury who took less than 90 minutes to make their decision. However, as a consequence of the prosecution, Walsh had been fired from his position on the London Fire Authority and excluded from his chambers. Post-acquittal, Walsh issued this statement:

“I would like to take this opportunity to encourage our legislators and regulators not to prosecute individuals in possession of images depicting private and consensual adult sexual acts. Nonetheless, these allegations have damaged my career and personal standing. As I said in my evidence, I do not believe that when I stood for public office I gave up my right to a private sexual life. I reiterate that point now.”

Following the acquittal David Allen Green, solicitor and legal correspondent for the New Statesman, said: “This was a shameful and intrusive prosecution which should never have been brought. It was bad law to begin with, but a good man has had his sex life examined in open court for no good reason. There are serious questions for the CPS to answer about bringing this prosecution.”[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”op7″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”7. Where can I find out more information about obscenity law?” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]Backlash (www.backlash.org.uk) is a UK-based NGO defending freedom of sexual expression between consenting adults in the UK. It successfully campaigned to update the CPS’s guidance on what will be prosecuted for being obscene.

Myles Jackman is a lawyer specialising in obscenity law and sexual freedoms. You can read his blog at www.mylesjackman.com/index.php/my-blog.

Open Rights Group (www.openrightsgroup.org) is a digital rights campaign group, campaigning on issues such as age-verification for pornographic sites and ensuring free expression on the internet (particularly in response to the government’s Online Harms White Paper and post-Brexit).[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”70″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”Ackowledgements” use_theme_fonts=”yes”][vc_column_text]This guide was produced by Index on Censorship, in partnership with Clifford Chance.[/vc_column_text][/vc_column][/vc_row]

Free speech & the law: Public Order

20 Jan 20 | Campaigns -- Featured, Free Speech and the Law, United Kingdom

Under the Human Rights Act 1998, police officers must respect people’s right to freedom of expression guaranteed by Article 10 of the European Convention on Human Rights (ECHR). However, Article 10 of the convention states that restrictions on people’s free expression rights may be justified on the grounds of preventing disorder or crime, protecting public safety and protecting the rights of others (see text box).

Many of the public order crimes discussed in this guide are contained in the Public Order Act 1986, which sets out the offences of riot, affray, violent disorder, and the different types of criminal harassment, alarm or distress. However, there are also more specific offences, such as “indecent or racist chanting” at a football match under the Football (Offences) Act 1991. The police also retain a common law power to arrest an individual for “breach of the peace”. The Public Order Act also includes special provision on offences intended to stir up religious and racial hatred and hatred on the grounds of sexual orientation. Please see our separate guidelines: “UK laws relating to ‘hate speech’” for more information.

In addition to speech-related actions that may constitute public order, individuals may break the law for things they say or share online, in phone calls or in written form, such as letters. These are offences are largely covered by the Communications Act and Malicious Communications Act.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”po2″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”2. Breach of the peace” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]A breach of the peace is an act (or the threat of an act) that harms a person as a result of violence, or is likely to cause such harm, or makes a person fear such harm. The belief that actual harm is likely to occur must be reasonable.[/vc_column_text][vc_custom_heading text=”Actual harm” use_theme_fonts=”yes”][vc_column_text]The courts have defined “actual harm” to mean harm to a “person’s body or property” (R v Howell (Errol) 1982). There should be a “wrongful” or unlawful act, such as an assault or riot, leading someone to be harmed, or to fear harm, before the police can make an arrest for breach of the peace.

Police officers (and ordinary citizens) can arrest people committing a breach of the peace in their presence, or those they reasonably think will commit a breach of the peace in the immediate future, or who have committed a breach of the peace and are likely to do it again. To comply with human rights law, the purpose of arrest must be to bring the perpetrator before a “competent legal authority”. No warrant is required, and a breach of the peace can take place on private or public property. When the police believe a breach of the peace is likely to happen in the immediate future, they can use their powers only when the breach is imminent. Judicial Review proceedings may be brought against the police if their actions contravene these requirements.

Breach of the peace is governed by common law. Common law, also referred to as case law, is made by judges and developed in the cases that come before the courts over time. (This is in contrast to statutory law, which is written law passed by Parliament.) It means that there are no specific, relevant extracts of written legislation for common law.

Case law tells us that the police must exercise their breach of the peace power of arrest in a way that respects people’s rights to free expression and assembly (as well as their other human rights). Arresting preachers for refusing to stop preaching because they might cause a breach of the peace, for example, was found to breach the preachers’ rights in the case of Redmond-Bate v Director of Public Prosecutions 1999. The court said the police should have used their power of arrest against the large crowd that had gathered and were showing hostility towards the women preachers, and not against the women themselves. However, the court said that if the preachers were being so provocative that someone in the crowd might – not wholly unreasonably – be moved to violence, the police would be entitled to ask the preachers to stop, and arrest them if they refused to.

Although there is a power of arrest for breach of the peace, there is no criminal offence of breach of the peace. Therefore, while someone can be arrested for breach of the peace, they cannot be prosecuted. However, they might be prosecuted for assault, violent disorder, or any other crime that led to the breach of the peace.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”po3″][/vc_column][/vc_row][vc_row gap=”35″][vc_column][vc_single_image image=”111978″ img_size=”large” add_caption=”yes” alignment=”center”][vc_custom_heading text=”3. Public Order Act 1986″ font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]The Public Order Act covers several offences, including:

Riot (Section 1)
Violent disorder (Section 2)
Affray (Section 3)
Fear or provocation of violence (Section 4)
Intentionally causing harassment, alarm or distress (Section 4a)
Harassment, alarm or distress (Section 5)

While the riot, violent disorder and affray sections are more focused on preventing physical displays of violent or threatening behaviour, Sections 4, 4a and 5 criminalise the use of threatening, abusive or offensive words (or behaviour) in a way that is likely to cause distress, harassment or alarm.[/vc_column_text][vc_custom_heading text=”Public Order Act offences” use_theme_fonts=”yes”][vc_column_text]

Riot

A riot involves 12 or more people using or threatening violence for a common purpose, with their conduct (taken together) resulting in reasonable people present at the scene fearing for their safety.

Violent disorder

Violent disorder involves three or more people using or threatening violence, with their conduct resulting in reasonable people present at the scene fearing for their safety.

Affray

Affray involves one person using or threatening violence, with his or her conduct resulting in reasonable people present at the scene fearing for their safety. Under affray, “a threat of violence cannot be made by the use of words alone”.

Fear or provocation of violence (section 4)

Fear or provocation of violence involves one person using towards another person “threatening, abusive or insulting words or behaviour” or “distributing or displaying to another person any writing, sign or other visible representation which is threatening, abusive or insulting” with the intention of making a person believe immediate violence will be used, or to provoke such violence, or where it is likely violence would be provoked. There is no crime if both parties are inside a private residence. (Neither a domestic garden nor a communal landing in a block of flats are classed as residences.)

Intentionally causing harassment, alarm or distress (section 4a)

Intentionally causing harassment, alarm or distress involves one person using threatening, abusive or insulting words or behaviour, or disorderly behaviour, or displaying writing, a sign or another visual that is threatening, abusive or insulting, with the intent and result of causing harassment, alarm or distress.[/vc_column_text][vc_column_text css=”.vc_custom_1579537002672{margin-top: 15px !important;margin-bottom: 0px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #397cbf !important;}”]

Case study: Intentionally causing harassment, alarm or distress

In July 2019, a 38-year-old woman was arrested under Section 4a of the Public Order Act 1986 for shouting homophobic abuse at people taking part in a Pride march. Footage posted on social media showed the woman shouting “Shame on you” to participants, one of whom was wearing a rainbow flag. She also shouted: “God created Adam and Eve, not Adam and Steve. Shame on you, shame on all of you. Shame on you, you despicable people.” Jamila Choudhury was given a three-month prison sentence, suspended for 12 months and ordered to pay a £122 victim surcharge and £100 compensation.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]

Harassment, alarm or distress (section 5)

Harassment, alarm or distress involves one person using threatening or abusive words or behaviour, or disorderly behaviour, or displaying material which is threatening or abusive, within the hearing or sight of someone likely to suffer harassment, alarm or distress as a result.

There is no requirement to prove that anyone was actually harassed, alarmed or distressed. It is enough if the abusive words can be heard or seen by someone likely to be caused harassment, alarm or distress. Uniquely among the Public Order Act offences, there is no need to prove intention here.

Section 5 is therefore broader than the other offences, particularly Section 4a, as it can apply where the person is aware of the potential for their conduct to be threatening or abusive, even without intending this result. [/vc_column_text][vc_empty_space height=”16px”][vc_column_text]The Public Order Act itself also has additional rules applying to conduct intending to stir up racial or religious hatred, or hatred on the grounds of sexual orientation (see separate guide on this).

Parts III and IIIA of the act create offences against writings, plays, recordings or broadcasts where these are intended to stir up racial hatred (in Part III) or religious hatred or hatred on grounds of sexual orientation (Part IIIA).

However, Part IIIA specifically contains protections for free speech where religion is involved. This protection significantly narrows the scope of Part IIIA.[/vc_column_text][vc_column_text css=”.vc_custom_1579536813352{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #397cbf !important;}”]

The PEN amendment

Section 29J of Part IIIA (the so-called ‘PEN amendment’) states that the rules on public order must not be applied “in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.”[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]

Harassment, alarm or distress

“Harassment”, “alarm” and “distress” have not been defined within the legislation. However, courts have ruled that “distress” requires emotional disturbance and upset. “Harassment” does not require emotional disturbance, but it must not be trivial. It does not need any element of apprehension about personal safety.

Insults

Section 5 no longer contains a prohibition on “insulting words or behaviour”. This reference was removed in 2013 following a high-profile campaign spearheaded by religious and secular campaign groups as well as comedian Rowan Atkinson, human rights campaigner Peter Tatchell and MP David Davis.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”po4″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”4. Theatres Act 1968″ font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]The Theatres Act 1968 provides a specific offence, under Section 6, of using threatening, abusive or insulting words if the intention is to provoke a breach of the peace, or the performance as a whole is likely to result in a breach of the peace.

The offence criminalises only the actions of the director or the “presenter” of the play, although these roles are not defined within the legislation. Performers are immune unless they are not performing in accordance with directions they have been given.

The act states that a decision to prosecute under Section 6 may be taken only with the consent of the attorney-general (the government’s chief legal adviser). The requirement for the attorney-general’s permission means that a decision to prosecute is likely to be considered particularly carefully, given that the attorney-general has a higher profile than other prosecutors, and such a decision would be subject to greater public scrutiny. This scrutiny may include whether or not the director’s right to freedom of expression and the public’s right to receive information have been sufficiently considered.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”Gang injunctions” use_theme_fonts=”yes” el_id=”ct41″][vc_column_text]The Policing and Crime Act 2009 introduced the so-called “injunctions to prevent gang-related violence” that mean a court can require an individual to do, or be prevented from doing, “anything” described in the injunction. The police and local government can apply to a court for an injunction. In the explanatory notes to the legislation, the government said the purpose of the gang injunctions was to prevent serious acts of violence from occurring, break down gang culture and prevent younger gang members’ behaviour from escalating, and give local authorities an opportunity to engage with gang members and help them develop effective strategies to exit gangs.

For the purposes of gang injunctions, something is “gang-related” if it relates to the activities of a group of three or more people who share one or more characteristics that enable them to be identified as a group.

To grant an injunction, a court must first be satisfied that the proposed subject of the injunction has engaged in – or encouraged or assisted – gang-related violence. The court must also think it necessary to grant the injunction in order to prevent that person from engaging in gang-related violence or to protect them from such violence. The court can require the individual to do, or be prevented from doing, “anything” described in the injunction. Although this gives a court very broad discretion, any requirements must be compliant with human rights law, which means it must not unlawfully restrict free expression or free assembly rights under Articles 10 and 11 of the ECHR.

Gang injunctions have been used in recent years to prohibit people from making music. In 2011, “Matt” (whose real name was not revealed so as to maintain his safety), a teenage rapper from south London, was served with a gang injunction that banned him from making any songs or videos that might encourage violence. He faced up to two years in prison if he breached the conditions. Southwark Council – the local authority that applied for the injunction – asked for it partly because videos featuring the rapper contained threats targeting other gangs in the area. While Matt admitted some of his lyrics were violent, he said his lyrics should not be seen as a real threat but as a description of life growing up on an estate in London.[/vc_column_text][vc_column_text css=”.vc_custom_1579536569934{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #397cbf !important;}”]

Case study: Gang injunctions against Drill musicians

In January 2019, drill artists Skengdo and AM were given nine-month suspended prison sentences for breaching a gang injunction issued against them in August 2018. The injunction banned them from going to certain areas and associating with certain individuals, and restricted their ability to make music and perform. The police claimed the injunction was breached when Skengdo and AM “performed drill music that incited and encouraged violence against rival gang members and then posted it on social media”. The police used footage of them performing Attempted – a response to music from other south London artists – in a club to make their case.

In February 2019, 65 signatories from human rights organisations as well as academics, musicians and lawyers wrote an open letter, urging the Metropolitan Police to stop using gang injunctions against musicians as a means of preventing violence.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]In the case of Jones v Birmingham City Council 2018, the Court of Appeal ruled that gang injunctions did not breach people’s fair-trial rights under the ECHR. Jerome Jones, who had an injunction imposed on him, argued that it was unlawful for the legislation to require proof of involvement in gang-related violence based on the lower civil-law standard of proof (i.e. the balance of probabilities). He argued that because of the punitive and serious nature of gang injunctions, the higher criminal standard of being “beyond a reasonable doubt” should be satisfied before a gang injunction could be imposed. The court disagreed.

Jones’s injunction included a prohibition on appearing in any music videos.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”Powers of the police and prosecutors” use_theme_fonts=”yes” el_id=”ct42″][vc_column_text]

Other problems with policing controversial artwork remain. One issue is the police’s requests for fees to cover their services when policing controversial shows.

[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”po5″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”5. Communications Act 2003″ font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]The Counter-Terrorism and Security Act 2015 placed a legal duty on certain bodies to “have due regard to the need to prevent people from being drawn into terrorism”. This duty is one aspect of the government’s Prevent strategy, within its wider counter-terrorism strategy, known as Contest. The aim of Prevent, according to the government, is to “reduce the threat to the UK from terrorism by stopping people becoming terrorists or supporting terrorism”. The duty applies to bodies in the UK that have a role in protecting vulnerable people and/or national security, including schools, universities, prisons, National Health Service trusts and local authorities.

The Prevent guidance demands the bodies take a “risk-based approach”. They must first understand the “risk of radicalisation” within their institutions, and form appropriate policies and procedures to deal with that risk, ensuring frontline and managerial staff are equipped to deal with the risk of radicalisation. This means developing training for staff members on the Prevent duty.

The guidance states that the Prevent programme must not include any “covert activity against people or communities”. But it also states that information-sharing of personal data may be allowed in order, for example, to refer a person at risk of being drawn into terrorism to the appropriate support.

Many institutions will need to work with Home Office Prevent co-ordinator teams who will monitor the institutions’ activities.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”Prosecutions under section 127″ use_theme_fonts=”yes”][vc_column_text css=”.vc_custom_1579536539583{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #397cbf !important;}”]

Case study: The Twitter joke trial

In 2010, Paul Chambers, who was planning to fly to Northern Ireland to meet his then girlfriend posted a message on Twitter, saying “Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!”

Chambers was subsequently arrested and charged with “sending a public electronic message that was grossly offensive or of an indecent, obscene or menacing character contrary to the Communications Act 2003.” He was found guilty fined £385 and ordered to pay £600 costs.

The conviction was widely condemned as a miscarriage of justice and was appealed three times, the conviction being quashed as a result of the third appeal.[/vc_column_text][vc_column_text]

Other examples

Azhar Ahmed (2012): Convicted for posting on Facebook that British soldiers “should die and go to hell” on Facebook March 2012. Ahmed was sentenced to 240 hours of community service and £300 fee.

Robert Riley (2014): Sent to prison for eight weeks for saying he would have killed murdered teacher Ann Maguire and all her colleagues. Chairwoman of the bench, Georgina Scannell, said the court had no choice but to send the defendant to jail. “The offensive messages outraged the public,” she said. “You had complete disregard for the tragic death of Ann Maguire. Besides this, countless other vile messages were made by you. The bench finds these were racially and religiously aggravated. The offences are so serious that only a period of immediate custody can be justified.”

Count Dankula (2018): Scottish police arrested Mark Meecham (known on YouTube Count Dankula) in May 2016 for posting a video online of him teaching his girlfriend’s dog to make a Nazi salute. He was found guilty in March 2018 and fined £800. The judged sided with the prosecution who said “context and intent are irrelevant” even though Count Dankula made clear the video was a joke.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”po6″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”6. Malicious Communications Act” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]The Malicious Communications Act 1988 states that any person who sends to another person a letter, electronic communications or article of any description which conveys a message which is indecent or grossly offensive, a threat or information that is false and known or believed to be false by the sender; or any article or electronic communication which is, in whole or part, of an indecent or grossly offensive nature is guilty of an offence if their purpose in sending it is to “cause distress or anxiety to the recipient”.

Prosecutions under Malicious Communications

Roman Catholic Veronica Connolly, who objected to the morning-after pill, sent images of aborted foetuses to pharmacies. Connolly was prosecuted under the Malicious Communications Act 1988, which she held prosecution violated her right to freedom of expression under Article 10 of the ECHR. Her appeal against prosecution was dismissed after it was deemed that Connolly’s right to express her views did not justify the distress and anxiety she intended to cause those who received the photographs and they had the right not to receive such material. It was significant in that it was argued those who received the material were in no position to influence public debate.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”Ackowledgements” use_theme_fonts=”yes”][vc_column_text]This guide was produced by Index on Censorship, in partnership with Clifford Chance.[/vc_column_text][/vc_column][/vc_row]

Free speech & the law: Counter Terrorism

17 Jan 20 | Campaigns -- Featured, Free Speech and the Law, United Kingdom

[vc_row][vc_column][vc_column_text css=”.vc_custom_1579268532812{margin-bottom: 30px !important;background-color: #f5f5f5 !important;}”]Please note: This is part of a series of guides produced by Index on Censorship on the laws related to freedom of expression in England and Wales. They are intended to help understand the protections that exist for free speech and where the law currently permits restrictions.[/vc_column_text][vc_column_text]This guide is available to download as a PDF here.[/vc_column_text][vc_single_image image=”111888″ img_size=”large” add_caption=”yes” alignment=”center”][vc_raw_html]JTNDZGl2JTIwc3R5bGUlM0QlMjJmb250LXNpemUlM0EuOWVtJTNCcGFkZGluZyUzQTVweCUzQmJhY2tncm91bmQtY29sb3IlM0FXaGl0ZVNtb2tlJTNCZmxvYXQlM0FyaWdodCUzQm1hcmdpbi1sZWZ0JTNBMTVweCUzQndpZHRoJTNBNDAlMjUlM0IlMjIlM0UlM0NoNCUzRVRhYmxlJTIwb2YlMjBjb250ZW50cyUzQyUyRmg0JTNFJTBBJTNDb2wlM0UlMEElM0NsaSUzRSUzQ2ElMjBocmVmJTNEJTIyJTIzdG9wJTIyJTNFSW50cm9kdWN0aW9uJTNDJTJGYSUzRSUzQyUyRmxpJTNFJTBBJTNDbGklM0UlM0NhJTIwaHJlZiUzRCUyMiUyM2N0MiUyMiUzRVdoYXQlMjBkb2VzJTIwaW50ZXJuYXRpb25hbCUyMGxhdyUyMHNheSUyMGFib3V0JTIwY291bnRlci10ZXJyb3Jpc20lMjBsYXdzJTIwYW5kJTIwZnJlZSUyMGV4cHJlc3Npb24lM0YlM0MlMkZhJTNFJTNDJTJGbGklM0UlMEElM0NsaSUzRSUzQ2ElMjBocmVmJTNEJTIyJTIzY3QzJTIyJTNFQ291bnRlci10ZXJyb3Jpc20lMjBvZmZlbmNlcyUyMGV4cGxhaW5lZCUzQyUyRmElM0UlM0MlMkZsaSUzRSUwQSUzQ2xpJTNFJTNDYSUyMGhyZWYlM0QlMjIlMjNjdDQlMjIlM0VUZXJyb3Jpc20lMjBvZmZlbmNlcyUzQyUyRmElM0UlMEElM0NvbCUyMHR5cGUlM0QlMjJhJTIyJTNFJTNDbGklM0UlM0NhJTIwaHJlZiUzRCUyMiUyM2N0NDElMjIlM0VFbmNvdXJhZ2luZyUyMHRlcnJvcmlzbSUzQSUyMHRoZSUyMHB1YmxpY2F0aW9uJTIwYW5kJTIwZGlzc2VtaW5hdGlvbiUyMG9mZmVuY2VzJTNDJTJGYSUzRSUzQyUyRmxpJTNFJTBBJTNDbGklM0UlM0NhJTIwaHJlZiUzRCUyMiUyM2N0NDIlMjIlM0VJbmZvcm1hdGlvbiUyMENvbGxlY3RpbmclM0MlMkZhJTNFJTNDJTJGbGklM0UlMEElM0NsaSUzRSUzQ2ElMjBocmVmJTNEJTIyJTIzY3Q0MyUyMiUzRVRlcnJvcmlzbSUyMGJ5JTIwYXNzb2NpYXRpb24lMjAlRTIlODAlOTMlMjBwcm9zY3JpYmVkJTIwb3JnYW5pc2F0aW9ucyUyMG9mZmVuY2VzJTNDJTJGYSUzRSUzQyUyRmxpJTNFJTNDJTJGb2wlM0UlM0MlMkZsaSUzRSUwQSUzQ2xpJTNFJTNDYSUyMGhyZWYlM0QlMjIlMjNjdDUlMjIlM0VUaGUlMjBQcmV2ZW50JTIwZHV0eSUzQyUyRmElM0UlM0MlMkZsaSUzRSUwQSUzQ2xpJTNFJTNDYSUyMGhyZWYlM0QlMjIlMjNjdDYlMjIlM0VQb3dlcnMlMjBvZiUyMHBvbGljZSUyMGluJTIwcmVsYXRpb24lMjB0byUyMHRlcnJvcmlzbSUzQyUyRmElM0UlM0MlMkZsaSUzRSUwQSUzQ2xpJTNFJTNDYSUyMGhyZWYlM0QlMjIlMjNjdDclMjIlM0VRdWVzdGlvbnMlMjAlMjYlMjBhbnN3ZXJzJTNDJTJGYSUzRSUzQyUyRmxpJTNFJTBBJTNDJTJGb2wlM0UlM0MlMkZkaXYlM0U=[/vc_raw_html][vc_custom_heading text=”1. Introduction” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes” el_id=”ct1″][vc_column_text]Counter-terrorism laws seek to address the application of “violence for political ends”. It is the “political ends” element that makes these laws interact so frequently with free expression rights, as the law tries to clamp down on expressions of sympathy with terrorist organisations and ideologies, as well as any resulting violence.

In the UK, there are a number of criminal laws that seek to prevent terrorist ideology from spreading, and which criminalise any steps that might lead to the commission of terrorist acts. Many of these laws are controversial since they can encroach heavily on people’s rights to expression. It is these that we discuss in this guide.

While the courts in England and Wales have – to date – tended to find the rules set out under counter-terrorism legislation compatible with free expression rights (usually on the basis they are necessary for public safety, national security and the prevention of disorder or crime), they have expressed serious reservations along the way about the breadth and lack of clarity of counter-terrorism law.

What’s more, the new Counter-Terrorism and Border Security Act 2019 goes much further than previous acts in criminalising behaviour many would consider a step removed from “terrorism”. For example, it criminalises the one-time viewing of information online that might be useful for a terrorist planning an attack. As parliament’s Joint Committee on Human Rights pointed out in 2018, this can easily criminalise “inquisitive or foolish minds”. Expressing views supportive of a terrorist organisation, while aware of a risk of encouraging others to do so, is also a crime, punishable by up to 10 years in prison.

It is likely these new offences will be challenged in the courts on human rights grounds over the next few years. However, it’s worth noting that UK courts do not have the power to overturn legislation. While they can make a declaration that a law is incompatible with human rights, they have to wait for parliament to change the law for it to stop having an effect. The same goes for any ruling from the European Court of Human Rights (ECtHR), which has the power to review UK laws against the standard of European human rights law. Even if that court rules against the UK, it cannot force the UK to comply – it has to wait for parliament to change the law.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”ct2″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”2. What does international law say about counter-terrorism laws and free expression?” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]As well as being protected under Article 10 of the European Convention on Human Rights (ECHR), free expression is protected under Article 19 of the International Covenant on Civil and Political Rights (ICCPR), a treaty the UK ratified in 1976. It is similar to Article 10 of the ECHR, protecting the right to freedom of expression and the right to hold opinions. These rights can be restricted to protect national security, public order and the rights of others. The United Nations Human Rights Committee issued guidance on the interpretation of Article 19 in its General Comment No 34, adopted in 2011. On counter-terrorism laws, it said:

States parties should ensure that counter-terrorism measures are compatible with paragraph 3 [of the International Covenant on Civil and Political Rights]. Such offences as “encouragement of terrorism” and “extremist activity” as well as offences of “praising”, “glorifying”, or “justifying” terrorism should be clearly defined to ensure that they do not lead to unnecessary or disproportionate interference with freedom of expression. Excessive restrictions on access to information must also be avoided. The media plays a crucial role in informing the public about acts of terrorism and its capacity to operate should not be unduly restricted. In this regard, journalists should not be penalised for carrying out their legitimate activities.

The General Principles of the 2016 Joint Declaration on Freedom of Expression and Countering Violent Extremism, written by the four inter-governmental mandate holders on freedom of expression, state:

Everyone has the right to seek, receive and impart information and ideas of all kinds, especially on matters of public concern, including issues relating to violence and terrorism, as well as to comment on and criticise the manner in which states and politicians respond to these phenomena.

Any restrictions on freedom of expression should comply with the standards for such restrictions recognised under international human rights law.

In his 2016 report, the United Nations Special Rapporteur on Counter-Terrorism and Human Rights said:

[It] must remain clear that simply holding or peacefully expressing views that are considered “extreme” under any definition should never be criminalised, unless they are associated with violence or criminal activity. The peaceful pursuance of a political, or any other, agenda – even where that agenda is different from the objectives of the government and considered to be “extreme” – must be protected. Governments should counter ideas they disagree with, but should not seek to prevent non-violent ideas and opinions from being discussed.

The report added:

The Human Rights Committee has highlighted that offences of “praising”, “glorifying” or “justifying” terrorism must be clearly defined to ensure that they do not lead to unnecessary or disproportionate interferences with freedom of expression. The Secretary-General has deprecated the “troubling trend” of criminalising the glorification of terrorism, considering it to be an inappropriate restriction on expression.

[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”ct3″][/vc_column][/vc_row][vc_row gap=”35″][vc_column][vc_custom_heading text=”3. Counter-terrorism offences explained” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]

Stop the War march, London, 8 October 2007. Credit: Jasn/flickr (CC BY-NC 2.0)

The UK’s counter-terrorism laws come from a number of pieces of legislation, including the Terrorism Act 2000, the Terrorism Act 2006, the Counter-Terrorism and Security Act 2015 and the Counter-Terrorism and Border Security Act 2019. The centrepiece is the 2000 act, which gives a legal definition of terrorism. The definition is important, because if something classifies as an “act of terrorism” then many associated acts – including possessing any related object, planning the act or encouraging others to carry out the act – will all be criminal offences.

Both the criminal offences defined under the counter-terrorism legislation and the legal definition of terrorism itself are broad in scope. They are capable of criminalising a wide range of behaviour beyond what is widely understood to be “terrorist” in nature, including behaviour that many might consider legitimate. While the breadth of counter-terrorism law has been criticised by the courts, non-governmental organisations and legal experts, the government has repeatedly declined to narrow the scope of the laws. In its response to the Independent Reviewer of Terrorism Legislation’s 2014 Report, which recommended narrowing the definition of terrorism, the government declined to make changes to the definition, stating:

The complexity and fluidity of the terrorist threat, and its ability to evolve and diversify at great speed, demonstrate the importance of having a flexible statutory framework – with appropriate safeguards – to ensure that the law enforcement and intelligence agencies can continue to protect the public.

The legal definition of terrorism means you can be prosecuted for terrorist acts that take place outside the UK, and the definition does not discriminate between different types of political resistance. For example, terrorism that might be considered “for a just cause” will still amount to terrorism under the Terrorism Act 2000.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column el_class=”text_white” css=”.vc_custom_1579267103654{padding-top: 0px !important;background-color: #f26e62 !important;}”][vc_custom_heading text=”Case study: Mohammed Gul – Terrorism for a just cause?” font_container=”tag:h4|text_align:left” use_theme_fonts=”yes”][vc_column_text]Law student Mohammed Gul was convicted for sharing videos online of attacks by insurgents (including members of al-Qaeda and the Taliban) on coalition forces in Iraq and Afghanistan. Gul argued in his defence that what was shown were not “terrorist acts” – and he had therefore not disseminated a “terrorist publication” – because it depicted people fighting for a just cause. Specifically, he argued that the use of force against the coalition forces was justified as self-defence by people resisting the invasion of their country. His defence failed and Gul was found guilty of disseminating terrorist publications with intent to encourage the commission of acts of terrorism, contrary to the Terrorism Act 2006.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_empty_space][/vc_column][/vc_row][vc_row][vc_column css=”.vc_custom_1579181936730{padding-top: 0px !important;background-color: #f26e62 !important;}” el_class=”text_white”][vc_custom_heading text=”Case study: David Miranda – Protections for journalists” font_container=”tag:h4|text_align:left” use_theme_fonts=”yes”][vc_column_text]In the 2016 case David Miranda v Secretary of State for the Home Department, the Court of Appeal declared the Schedule 7 power to stop and question a person at a port or border area to be incompatible with Article 10 of the ECHR in relation to journalistic material, in that it was not subject to adequate safeguards against its arbitrary exercise. The case involved the stop and search of David Miranda, the spouse of journalist Glenn Greenwald, who was carrying encrypted material derived from data stolen from the US National Security Agency. While the Court of Appeal upheld the lawfulness of the detention, it ruled that the stop powers under Schedule 7 of the Terrorism Act lacked sufficient legal safeguards.

The court suggested that judicial oversight of the use of Schedule 7 powers might make the legislation compatible with Article 10 free expression rights.

Additionally, the Court of Appeal ruled that the publication of material can amount to an act of terrorism if it endangers a person’s life or creates a serious risk to public safety, and the person publishing the material intends it to have that effect (or is reckless about its effect). The breadth of the terrorism definition means that those involved in applying the law have unusually wide discretion when it comes to using their powers – such as when to arrest someone at a border, for example.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”The need for consent to prosecute” use_theme_fonts=”yes”][vc_column_text]Some of the excesses of the counter-terrorism legislation may be tempered in England and Wales by the need for consent from the Director of Public Prosecutions (DPP) in order to prosecute someone. The decision on whether to prosecute is usually taken by a lawyer who works for the Crown Prosecution Service (a prosecutor). The prosecutor must be satisfied there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. The prosecutor must then determine whether it is in the public interest to proceed with the case. If there are public interest factors tending against prosecution which outweigh those tending in favour, the prosecution may not go ahead. These factors include the seriousness of the offence, the suspect’s level of involvement, the harm done to the victim, and whether prosecution is a proportionate response bearing in mind the cost to the taxpayer.

While the need for the consent of the DPP provides a hurdle to prosecution, its effectiveness as a safeguard is questionable.

First, under the Prosecution of Offences Act 1985, the function of granting consent can be delegated to any Crown Prosecutor, which could create the risk of decisions being made unevenly.

Secondly, the Supreme Court has expressed concerns over the government’s reliance on prosecutorial discretion to act as a “filtering mechanism” on terrorism prosecutions. For example, in the R v Gul 2013 case mentioned above it said that the legislature – whose job is to make law, and in public – is effectively delegating the decision as to whether or not a certain activity is terrorism to unelected appointees of the executive branch of government. This makes the law uncertain and can leave people unsure of whether their conduct is criminal.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”ct4″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”4. Terrorism offences” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]The terrorism offences that are most likely to encroach on free expression are primarily contained in the Terrorism Act 2000 and the Terrorism Act 2006. They have been extended and amended by later acts.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”4a. Encouraging terrorism: the publication and dissemination offences” use_theme_fonts=”yes” el_id=”ct41″][vc_column_text]The Terrorism Act 2006 criminalises the publication and dissemination of material that could be seen as encouraging people to commit or instigate acts of terrorism. Prohibited material includes anything in written, audio-visual or image form. The maximum sentence for these offences was extended by the Counter-Terrorism and Border Security Act 2019 to 15 years’ imprisonment plus a fine.[/vc_column_text][/vc_column][/vc_row][vc_row gap=”35″ equal_height=”yes”][vc_column][vc_custom_heading text=”Encouragement of terrorism” font_container=”tag:h3|text_align:left” use_theme_fonts=”yes”][vc_column_text]Terrorism Act 2006 Section 1. Under Section 1, it is a criminal offence to publish any statement or communication that is “likely to be understood by a reasonable person as a direct or indirect encouragement or other inducement, to some or all of the members of the public to whom it is published, to the commission, preparation or instigation of acts of terrorism”.[/vc_column_text][vc_custom_heading text=”Dissemination of terrorist publications” font_container=”tag:h3|text_align:left” use_theme_fonts=”yes”][vc_column_text]Terrorism Act 2006 Section 2. Under Section 2, it is a criminal offence to further disseminate the prohibited material set out in Section 1. The crime includes sharing information that would be “useful” to someone planning a terrorist act. The fact that the shared publication expresses some political or religious views (in addition to encouraging terrorism) is no defence.[/vc_column_text][/vc_column][/vc_row][vc_row gap=”35″ equal_height=”yes”][vc_column css=”.vc_custom_1579181983921{padding-top: 0px !important;padding-bottom: 0px !important;background-color: #f26e62 !important;}” el_class=”text_white”][vc_custom_heading text=”Case study: Encouragement of terrorism” font_container=”tag:h4|text_align:left” use_theme_fonts=”yes”][vc_column_text]In April 2019, 19-year-old Michal Szewczuk pleaded guilty to encouraging terrorism for his role in producing propaganda for the UK-based wing of the neo-Nazi terrorist network the Atomwaffen Division. Via social media site Gab, Szewczuk said Prince Harry was a “race traitor” who should be shot, and he lionised Norwegian mass-murderer Anders Breivik.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]For both the encouragement and dissemination offences, “indirect encouragement” includes “glorification”, which is defined as including “any form of praise or celebration” of acts of terrorism (provided members of the public could reasonably be expected to infer that “what is being glorified… should be emulated by them”). It is not relevant whether or not someone was in fact encouraged by the statement to commit a terrorist act.

To be guilty of these crimes, a person must have intended to encourage terrorist acts or be reckless as to whether their behaviour actually encouraged terrorist acts. Committing a crime recklessly means knowing of a serious risk that is likely to result from one’s behaviour, but behaving that way anyway. Where someone commits either of these crimes recklessly, they have a defence if they can show the material did not express their views, nor was it endorsed by them (and that was clear from all the circumstances).

Previously, the courts had been keen to emphasise that the publication and dissemination offences did not criminalise holding offensive views or personally supporting a terrorist cause. What was criminal, they said, was encouraging others to commit terrorism. For example, Mohammed Alamgir was jailed for six years for making speeches in Luton that the jury decided invited support for Isis. He had spoken of “the sun setting on the British Empire and the sun trying to rise on the Islamic State”. The judge said Alamgir revealed in his speeches “opinions which were clearly supportive of terrorism and specifically of [Isis]”. In his appeal, the Court of Appeal reiterated that Section 12 of the Terrorism Act “does not make it an offence to hold opinions or beliefs which are also held by members of a proscribed organisation, nor does the act make it an offence to express those opinions or beliefs to other people, or to share them, or to encourage others to share them. What Section 12 makes criminal is encouraging support from other people for a proscribed organisation”.

However, the Counter-Terrorism and Border Security Act 2019 created a new offence of expressing opinions or beliefs which are supportive of terrorist organisations while being reckless as to whether the audience will be encouraged to support the organisation. Contrary to what the courts previously said, reckless expressions of support for terrorist organisations will now be criminalised under the new offence.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”4b. Information Collecting” use_theme_fonts=”yes” el_id=”ct42″][vc_custom_heading text=”Collecting information of a kind likely to be useful to a person committing or preparing an act of terrorism” font_container=”tag:h3|text_align:left” use_theme_fonts=”yes”][vc_column_text]

Reporter, San Francisco, 7 December 2011. Credit: Thomas Hawk (CC BY-NC 2.0)

Terrorism Act 2000 Section 58. Collecting, possessing or recording information that is likely to be useful to a person committing or preparing an act of terrorism is a criminal offence under Section 58 of the Terrorism Act 2000. For example, writing a document containing information on where to obtain explosives could fall within Section 58.

Remarkably, the Counter-Terrorism and Border Security Act 2019 extended the offence to cover merely viewing a document containing this type of information. This change happened despite warnings from the Independent Reviewer of Terrorism Legislation Max Hill QC – since appointed DPP in England and Wales – that the extension may breach human rights law. In his words:

The process of criminalising the collection of information inevitably impinges on human rights in the shape of freedoms of thought and expression. The European Court of Human Rights has increasingly underlined that access to the internet is an important aspect of the freedom to receive and impart information and ideas. To date, the Section 58 offence has been upheld as ECHR-compliant by domestic courts and by even the ECtHR. However, as the boundaries of the criminal law are expanded, so are the impingements on thought and expression and so are the arguments about legal (un)certainty.

Parliament’s Joint Committee on Human Rights also expressed the view that this clause presented an “unjustified interference with the right to receive information”.

There is a defence under Section 58 of a “reasonable excuse” for an action. This includes actions taken for journalistic purposes or academic research. Equally, if someone is ignorant of the type of information contained in a document and had no reason to suspect its content could assist a terrorist, that can constitute a defence. However, with the offence having been extended to cover merely viewing this type of information, the Independent Reviewer of Terrorism Legislation has warned that this defence is insufficient. All the prosecution needs to show is that the suspect viewed material likely to aid a terrorist in the commission of a crime. The suspect is then burdened with showing why there was a reasonable excuse to do this. The Independent Reviewer thinks this is against the fundamental principle that the prosecution bears the burden of proof in criminal proceedings. In his words, the “bulk of the work [in proving the offence] must be done by the prosecution rather than inevitably requiring the defendant to explain some kind of reasonable excuse based on rights of free thought or expression”.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column width=”1/2″ css=”.vc_custom_1579015416038{margin-top: 15px !important;margin-right: 15px !important;margin-bottom: 15px !important;}”][vc_custom_heading text=”Entering or remaining in a “designated area”” font_container=”tag:h3|text_align:left” use_theme_fonts=”yes”][vc_column_text]Terrorism Act 2000 Section 58B. The Counter-Terrorism and Border Security Act 2019 introduced the new offence of “entering or remaining in a designated area”. The Home Secretary can deem any area outside the UK to be a “designated area” if he or she is satisfied that it is necessary to restrict UK nationals and residents from going there in order to protect members of the public (including people from other countries) from terrorism. There is a defence of having a “reasonable excuse” for being in the area, and if people are already in (or travelling to) the area on the day it becomes designated, they have a month to leave. Additionally, people may lawfully be in designated areas for providing humanitarian aid, appearing in court, carrying out government service for another country, working as a journalist, attending a relative’s funeral, visiting a terminally-ill relative or caring for a relative who cannot look after themselves. The offence comes with a prison sentence of up to 10 years and a fine.

[/vc_column_text][/vc_column][vc_column width=”1/2″ css=”.vc_custom_1579183143802{margin-top: 15px !important;padding-top: 0px !important;background-color: #f26e62 !important;}” el_class=”text_white”][vc_custom_heading text=”Case study: Mohamed Kuwaldeen – Possession of documents containing information useful for terrorist purposes” font_container=”tag:h4|text_align:left” use_theme_fonts=”yes”][vc_column_text]In June 2019, Mohamed Kuwaldeen, 38, was found guilty of five counts of possession of documents containing information useful for terrorist purposes, contrary to Section 58 of the Terrorism Act 2000. In November 2018, Kuwaldeen was arrested by police who seized his laptop, a smartphone and a memory stick from his home. Investigators found a number of documents on these devices related to bomb-making. They also found publications detailing how to avoid police and security services. They considered these materials to be extreme or related to terrorism. When asked why he had the documents, Kuwaldeen, a Sri Lankan national, claimed that he was a journalist conducting research. However, his claims proved to be false.

Kath Barnes, the regional head of counter-terrorism policing, said: “Kuwaldeen tried to make out he merely had an interest in finding out more about terrorism for journalistic purposes, yet he possessed fraudulent credentials and had never published a journalistic article in his life.

“Whilst there’s not anything to suggest that Kuwaldeen was preparing to commit acts of terrorism, the documents he had were dangerous terrorist documents, which could be used by someone to help plan and execute an attack.”[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”4c. Terrorism by association – proscribed organisations offences” use_theme_fonts=”yes” el_id=”ct43″][/vc_column][/vc_row][vc_row gap=”35″][vc_column width=”1/2″ css=”.vc_custom_1579183072965{padding-top: 0px !important;}”][vc_custom_heading text=”Membership of a proscribed organisation” font_container=”tag:h3|text_align:left” use_theme_fonts=”yes”][vc_column_text]Terrorism Act 2000 Section 11. Belonging to or professing to belong to a “proscribed organisation” is a criminal offence, carrying a maximum prison sentence of 10 years. Proscribed organisations are those the Home Secretary considers to be “concerned in terrorism”. [/vc_column_text][/vc_column][vc_column width=”1/2″ el_class=”text_white” css=”.vc_custom_1579183150880{margin-top: 25px !important;padding-top: 0px !important;background-color: #f26e62 !important;}”][vc_custom_heading text=”Terrorist and proscribed organisations” font_container=”tag:h4|text_align:left” use_theme_fonts=”yes” css=”.vc_custom_1579181004848{background-color: #f26e62 !important;}”][vc_column_text css=”.vc_custom_1579180992155{background-color: #f26e62 !important;}”]A list of proscribed terrorist groups or organisations is maintained by the UK Government, available online here.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”Is Section 11 compatible with human rights law?” font_container=”tag:h4|text_align:left” use_theme_fonts=”yes”][vc_column_text]In the 2004 case of Sheldrake v DPP, Law Lord Tom Bingham conceded that Section 11 does “interfere with exercise of the right of free expression guaranteed by Article 10 of the [ECHR]”. However, he considered that the “interference may be justified if it satisfies various conditions”, including being directed at the legitimate aims of national security, public safety and the prevention of disorder or crime. He also found it was necessary in a democratic society and proportionate. Although he doubted the meaning of “profess”, he found the law sufficiently clear to be compatible with human rights law.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”Inviting and expressing support for a proscribed organisation” font_container=”tag:h3|text_align:left” use_theme_fonts=”yes”][vc_custom_heading text=”Inviting support for a terrorist organisation” font_container=”tag:h4|text_align:left” use_theme_fonts=”yes”][vc_column_text]Terrorism Act 2000 Section 12. It is a criminal offence to “invite support” for a proscribed organisation. (This excludes support by way of fundraising, which instead is covered in Section 15 of the act.) “Invite” has its ordinary meaning, including “making a request to someone to go somewhere or do something”. As well as tangible and practical assistance, “support” can include intellectual support – agreement with, approval of, approbation of or endorsement of the proscribed organisation.[/vc_column_text][vc_custom_heading text=”Expressing support for a terrorist organisation” font_container=”tag:h4|text_align:left” use_theme_fonts=”yes”][vc_column_text]Terrorism Act 2000 Section 12. The Counter-Terrorism and Border Security Act 2019 extended Section 12 of the Terrorist Act 2000 to make it a criminal offence to express an opinion or belief in support of a proscribed organisation while being reckless as to whether that would influence others to support the organisation. Numerous NGOs, including Index on Censorship, Article 19 and Liberty, have expressed concerns about how this offence disproportionately impacts the right to hold opinions under Article 10 of the ECHR. Parliament’s Joint Committee on Human Rights said the offence outlawed what it is neither “necessary nor proportionate to criminalise, such as valid debates about proscription and de-proscription of organisations”.

The new offence set out to counter the Court of Appeal’s judgment in R v Choudhary and Rahman 2016, which had held that the Section 12 offence “does not prohibit the holding of opinions or beliefs supportive of a proscribed organisation; or the expression of those opinions or beliefs”. The Court of Appeal expressed similar views in R v Alamgir & Ors 2018, which held that it was not an offence to hold opinions or beliefs which were also held by members of a proscribed organisation, nor to express those opinions or beliefs to other people. In that case, the court stated that it was not an offence “to want the establishment of an Islamic State or a Caliphate”. However, it is likely now a crime under the new legislation to express this view knowing that it might encourage someone to support a proscribed organisation.

Under Section 12(2), a person will be guilty of a support offence for arranging a meeting of three or more people in the knowledge that it will support or further the activities of a proscribed organisation, or for addressing the meeting in order to encourage the activities of a proscribed organisation.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”Dressing in such a way as to indicate membership or support of a proscribed organisation” font_container=”tag:h3|text_align:left” use_theme_fonts=”yes”][vc_column_text]Terrorism Act 2000 Section 13. Wearing clothing or displaying items that would tend to indicate that a person is a member of a proscribed organisation is a criminal offence under Section 13 of the Terrorism Act 2000. Additionally, publishing an image or video of the clothing or article in such a way as to indicate that the person is a member or supporter of a proscribed organisation is also a criminal offence. The maximum sentence is six months’ imprisonment and an unlimited fine.

Police can seize an item of clothing and any other article if they reasonably suspect it will constitute evidence of this criminal offence and they consider it necessary to seize it to prevent it being concealed, lost, altered or destroyed. They have the power to require the suspect to remove clothing being worn, unless it is being worn next to the skin or immediately over underwear.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”The proscribed organisation offences – a summary” font_container=”tag:h3|text_align:left” use_theme_fonts=”yes”][vc_column_text]

Terrorism Act 2000	Offence
Section 11	Belonging – or professing to belong to – a proscribed organisation
Section 12(1)	Inviting (non-financial) support for a proscribed organisation
Section 12(1A)	Expressing an opinion or belief that is supportive of a proscribed organisation (while being reckless as to whether someone will be encouraged to support it)
Section 12(2)	Arranging a meeting that supports the activities of a proscribed organisation
Section 12(3)	Addressing a meeting that supports the activities of a proscribed organisation, with intent to encourage support or further its activities
Section 13(1)	Wearing an item of clothing, or displaying an article, in such a way as to arouse reasonable suspicion that you are a member or supporter of a proscribed organisation
Section 13(1)(A)	Publishing an image or video of an item of clothing or any other article, in such a way as to arouse reasonable suspicion that you are a member or supporter of a proscribed organisation

[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column el_class=”text_white” css=”.vc_custom_1579182860932{padding-top: 0px !important;background-color: #f26e62 !important;}”][vc_custom_heading text=”What has international law said recently about terrorism laws and freedom of expression?” font_container=”tag:h4|text_align:left” use_theme_fonts=”yes”][vc_column_text]In 2015, the United Nations Special Rapporteur on Freedom of Expression and representatives from other international organisations issued a Joint Declaration on Freedom of Expression and Responses to Conflict Situations. It stated:

States should not respond to crisis situations by adopting additional restrictions on freedom of expression, except as strictly justified by the situation and international human rights law.

Any restriction on freedom of expression must meet the three-part test under international human rights law, namely that it is provided for by law, it serves to protect a legitimate interest recognised under international law and it is necessary to protect that interest.

All criminal restrictions on content – including those relating to hate speech, national security, public order and terrorism/extremism – should conform strictly to international standards, including by not providing special protection to officials and by not employing vague or unduly broad terms.

In particular, states should refrain from applying restrictions relating to “terrorism” in an unduly broad manner. Criminal responsibility for expression relating to terrorism should be limited to those who incite others to terrorism; vague concepts such as “glorifying”, “justifying” or “encouraging” terrorism should not be used.

In 2015 (Belek and Velioglu v Turkey), the ECtHR ruled that a criminal conviction imposed on the owners and editors of a daily newspaper for publishing an article containing a statement by an illegal armed organisation in Turkey was a violation of the editors’ Article 10 free expression rights. The statement had called for a democratic solution to the Kurdish question and stressed the need for an amnesty law. In making its decision, the court stressed that – taken as a whole – the text had not called for violence, armed resistance or insurrection, and nor did it amount to hate speech. The court found the interference with Article 10 rights was not justified.

In 2010 (Gozel and Ozer v Turkey), the ECtHR ruled that Turkey had breached the Article 10 rights of editors who had been fined for publishing three articles that the domestic Turkish courts characterised as statements by a terrorist organisation. The Turkish law in question provided for the conviction of anyone who printed or published statements or leaflets by terrorist organisations. There was no requirement for domestic courts to carry out a textual or contextual examination of the writings. The court found that the automatic repression of such texts could not be reconciled with the Article 10 right to freedom of expression and was not necessary in a democratic society.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_empty_space][vc_separator el_width=”80″ el_id=”ct5″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”5. The Prevent duty” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]The Counter-Terrorism and Security Act 2015 placed a legal duty on certain bodies to “have due regard to the need to prevent people from being drawn into terrorism”. This duty is one aspect of the government’s Prevent strategy, within its wider counter-terrorism strategy, known as Contest. The aim of Prevent, according to the government, is to “reduce the threat to the UK from terrorism by stopping people becoming terrorists or supporting terrorism”. The duty applies to bodies in the UK that have a role in protecting vulnerable people and/or national security, including schools, universities, prisons, National Health Service trusts and local authorities.

Many institutions will need to work with Home Office Prevent co-ordinator teams who will monitor the institutions’ activities.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”Universities” use_theme_fonts=”yes”][vc_column_text]Universities have the difficult task of balancing their duties to ensure freedom of speech against their duty to prevent people from being drawn into terrorism. They are unique in the Prevent context in that they are under a statutory duty to “ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers”, under the Education Act 1986. Additionally, the Counter-Terrorism and Border Security Act 2019 specifies that higher-education providers “must have particular regard to the duty to ensure freedom of speech” when fulfilling their Prevent duty.

The potential conflict of these duties can be seen most vividly in the context of external speakers on campus. The 2015 Home Office guidance for higher-education providers says that universities must put in place policies and procedures for managing events held on its premises.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column el_class=”text_white” css=”.vc_custom_1579182870167{padding-top: 0px !important;background-color: #f26e62 !important;}”][vc_custom_heading text=”Case study: Salman Butt” font_container=”tag:h4|text_align:left” use_theme_fonts=”yes”][vc_column_text]Dr Salman Butt, the editor-in-chief of Islam21C, a website describing itself as “articulating Islam in the 21st century”, brought a case challenging the Home Office’s Prevent guidance. Butt had been a speaker at many schools and universities but in 2015 he was labelled in a press release issued by the Prime Minister’s office as a hate speaker. The press release also stated that he was an example of the kind of person that universities should not permit to speak at events on campuses in order to comply with their Prevent duty. Butt denied that his views were extremist, and said he did not oppose fundamental British values or support the activities of any terrorist or extremist groups. He argued he had suffered as a result of the press release and the Prevent guidance. He received far fewer speaking invitations than previous trends suggested he should, and he turned down speaking opportunities to save institutions the trouble of being associated with a “hate speaker”.

Butt argued that the general Prevent guidance, and the higher-education guidance in particular, contravened the Home Secretary’s duty to ensure free speech in universities and other higher-education institutions. In particular he said that Paragraph 11 of the guidance went too far and skewed the balance too much in favour of the Prevent duty rather than free speech. Paragraph 11 reads:

[When] deciding whether or not to host a particular speaker, [universities] should consider carefully whether the views being expressed or likely to be expressed, constitute extremist views that risk drawing people into terrorism or are shared by terrorist groups. In the circumstances the event should not be allowed to proceed except where [universities] are entirely convinced that such a risk can be fully mitigated without cancellation of the event. This includes ensuring that where any event is being allowed to proceed, speakers with extremist views that could draw people into terrorism are challenged with opposing views as part of the same event, rather than in a separate forum. Where [universities] are in any doubt that the risk cannot be fully mitigated they should exercise caution and not allow the event to proceed.

The court agreed with Butt. It found Paragraph 11 insufficiently balanced and accurate so as to inform decision-makers of their competing duties to help them come to a proper conclusion. The court did not attempt to redraft Paragraph 11 but said a redraft accurately reflecting the balancing of duties would be achievable for the government.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_empty_space][/vc_column][/vc_row][vc_row][vc_column el_class=”text_white” css=”.vc_custom_1579182879293{padding-top: 0px !important;background-color: #f26e62 !important;}”][vc_custom_heading text=”Case study: Students not suspects” font_container=”tag:h4|text_align:left” use_theme_fonts=”yes”][vc_column_text]Students Not Suspects, which is part of the National Union of Students, argues that Prevent discriminates against students who come from black and minority ethnic backgrounds. The group believes that young Muslims who are subjected to Islamophobic abuse on campus are further alienated as the Prevent duty results in the manifestation of their beliefs (i.e. dress, religious practice etc.) being inappropriately reported to the police (Prevent has a referral process called Channel).

In April 2018, 30 students from the University of Westminster Students Not Suspects group marched from the university’s Marylebone Campus to the Regent Street Campus, in protest at the way that Prevent was being implemented. They occupied the Regent Street building’s lobby and refused to leave until their demands were met.

Among their complaints were that CCTV had been installed in prayer rooms; events organised by Islamic and Palestinian societies were often postponed at the last minute; and the external speaker policy was too restrictive. In response to a Freedom of Information request, the university stated that “cameras were installed in most interfaith rooms across all campuses in 2015…Senior management made the decision to install these cameras in response to a number of mostly minor incidents occurring in or near the rooms”. The university listed the protection of staff, students and visitors and the detection of crime as the reasons for the installation.

The university has been the subject of heavy media scrutiny on the fulfilment of its Prevent duties since it transpired that the Isis militant known as Jihadi John completed a computing degree there in 2009. A 2015 report by the Henry Jackson Society, a think-tank seeking to combat extremism, listed Westminster as the university holding the highest number of on-campus events featuring extremist or intolerant speeches between 2012 and 2014. As a result, the university’s external speaker policy became more stringent, and students complained it was unclear. For example, it was not obvious which decisions could be taken by the student union and which could be taken by university staff. The opaqueness of the policy led students to become suspicious and suspect it was clamping down unfairly on free-expression rights and discriminating against certain student groups.

After the action by Students Not Suspects, the university sought to clarify and simplify its external speaker policy, which is now primarily run by the student union. Its external events booking process requires societies wishing to book an external speaker for an on-campus event to make a request 14 days in advance. The union will classify speakers as low risk or mid-to-high risk. While low-risk speakers can be approved by the student union, mid-to-high-risk speakers are referred to a “speaker approval committee”, which comprises student union representatives and university staff. In recent years, Westminster reportedly has not invited any extreme speakers on to campus, meaning that no event has had to be put forward to the Prevent co-ordinator (a Home Office employee who works with universities to enforce Prevent).[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”Schools” use_theme_fonts=”yes”][vc_column_text]The Prevent guidance for schools states that early-years providers should focus on children’s “personal, social, and emotional development” through ensuring “children learn right from wrong, mix and share with other children and value other’s views, know about similarities and differences between themselves and others, and challenge negative attitudes and stereotypes”. It also states that the Prevent duty extends to working to stop children being drawn into “non-violent extremism, which can create an atmosphere conducive to terrorism and can popularise views terrorists seek to exploit”.

It adds: Schools should be safe spaces in which children and young people can understand and discuss sensitive topics, including terrorism and the extremist ideas that are part of terrorist ideology, and learn how to challenge these ideas. The Prevent duty is not intended to limit discussion of these issues. Schools should, however, be mindful of their existing duties to forbid political indoctrination and secure a balanced representation of political issues.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”ct6″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”6. Powers of police in relation to terrorism” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]While the police have a range of general powers to stop, search and arrest individuals to investigate crimes, they also have a raft of specific powers under terrorism legislation. There are a large number of these, and the most pertinent are set out here.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”Terrorism Specific Police Powers” font_container=”tag:h3|text_align:left” use_theme_fonts=”yes”][vc_column_text]

Terrorism Act 2000	Powers
Section 41	A police officer may arrest without a warrant any person he reasonably suspects to be a terrorist. That is, anyone who is or has been concerned in the commission, preparation or instigation of acts of terrorism.
Section 43(2)	A police officer may search a person arrested under Section 41 above to discover whether that person has in their possession anything which may constitute evidence they are a terrorist.
Section 42	A magistrate may issue a warrant authorising a police officer to enter and search premises if they consider the police officer has reasonable grounds for suspecting a terrorist will be found there. The search is for the purpose of arrest.
Section 43(1)	The police have the power to stop and search a person reasonably suspected to be a terrorist to discover whether that person has in their possession anything which may constitute evidence they are a terrorist.
Section 43(4)	The police can seize and retain anything they discover from a Section 43(1) or 43(2) search if they reasonably suspect it constitutes evidence of the suspect being a terrorist.
Section 43A	The police have the power to stop and search a vehicle which is reasonably suspected of being used for terrorism, for evidence it is being used for such purposes. They may seize anything discovered in the search that they reasonably suspect constitutes evidence the vehicle is concerned in terrorism.
Section 47A	A police officer can stop and search a person or a vehicle (or anyone in the vehicle) if they reasonably suspect that an act of terrorism will take place and the stop or search is necessary to prevent the act. This power that can only be used in limited circumstances since it does not require reasonable suspicion that a person is or has been engaged in a crime.
Section 28	A judge may issue a warrant authorising the police to enter and search premises and seize any articles that are likely to be covered by the Section 2 Terrorism Act 2006 dissemination offence. Those are publications likely to be understood as encouraging terrorism or useful for those preparing acts of terrorism.
Schedule 7	An examining officer (including police, immigration officers and customs officers) can question a person at a port or in a border area to determine whether that person is or has been concerned in the commission, preparation or instigation of acts of terrorism. The officer does not need to suspect that the person has been concerned in acts of terrorism to exercise their powers. The person being questioned under Schedule 7 must hand over any information requested by the officer and declare to the officer whether or not he has such information in his possession. The officer may also search the person and any items on his person.

[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”ct7″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”7. Questions & answers” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_custom_heading text=”In the Miranda case, the Court of Appeal found that “publishing” material could amount to a terrorist act. What kind of articles might be considered “terrorist acts”?” use_theme_fonts=”yes”][vc_column_text]For a publication to be a terrorist act, the court said it would have to endanger the life of someone other than the person publishing the material, or create a serious risk to the health or safety of the public, and the publisher would have to intend it to have that effect (or be reckless as to whether it did or not). It would also have to be designed to influence the government or intimidate the public, and be published to advance a political, religious, racial or ideological cause.

In theory, this could capture a wide range of publications, including a blog about the merits of anti-vaxxing, designed to influence government policy or to intimidate the public about vaccinations.[/vc_column_text][vc_custom_heading text=”What happens if something is defined as “terrorism”?” use_theme_fonts=”yes”][vc_column_text]Because many offences under the terrorism legislation are defined by reference to the legal definition of terrorism, if something is defined as “terrorism” then so are many associated acts. Taking the example of the anti-vaxxing blog, if it were deemed to be “terrorist” in nature, the following would be criminal offences under the terrorism legislation:

Possessing any article in connection with the blog or any document likely to be useful to people publishing material of that kind – for example, research on the anti-vaxx movement. This is punishable by up to 15 years in prison.
Encouraging the writing of similar articles or sharing the article with others with a view to encouraging them to write anti-vaxx articles. This is punishable by up to seven years in prison.
Undertaking any act preparatory to publication – such as researching, writing and discussing the article. This is punishable by life imprisonment.

Bringing the activities of journalists and bloggers within the ambit of “terrorism” has been criticised by, amongst others, former Independent Reviewer of Terrorism Legislation Lord Anderson QC as encouraging the “chilling effect” that can deter legitimate enquiry in fields related to the publication. Lord Anderson also said that making people whom no sensible person would think of as terrorists subject to terrorism laws risked destroying the trust these special powers depended on for acceptance by the public.[/vc_column_text][vc_custom_heading text=”What general powers do the police have to stop, search and arrest?” use_theme_fonts=”yes”][vc_custom_heading text=”Stop, search, seizure” font_container=”tag:h3|text_align:left” use_theme_fonts=”yes”][vc_column_text]Under the Police and Criminal Evidence (Pace) Act 1984, the police have a wide range of powers to stop, search and arrest someone in connection with the investigation of a criminal offence. They also have specific powers they can use in relation to the investigation of particular crimes, such as under the Terrorism Act 2000 and the Obscene Publications Act 1959.[/vc_column_text][vc_custom_heading text=”Stop and search before arrest” font_container=”tag:h3|text_align:left” use_theme_fonts=”yes”][vc_column_text]Under Section 1 of Pace, a police officer can stop and search individuals and vehicles before arrest if they have “reasonable grounds” for suspecting they will find stolen or prohibited articles, including weapons, certain drugs and items used for committing crimes (such as a crowbar for a burglary). The police guidance on this power (known as Code A) requires that stop and search powers are used “fairly, responsibly, with respect for those being searched and without unlawful discrimination”. “Reasonable suspicion” means a police officer must have both actual suspicion the person is in possession of a stolen or prohibited article (the subjective test) and reasonable grounds for so believing (the objective test). The powers under Section 1 cannot be used inside a person’s home or in any other dwelling without that person’s consent. It can take place only in a “public place or a place to which the public has access” or in a garden or yard attached to a house if the officer reasonably believes the suspect does not live there and does not have permission to be on the land. A police officer can also stop and search a person if they consider it necessary to stop an incident of serious violence from occurring under Section 60 of the Criminal Justice and Public Order Act 1994.

If the police conduct an unlawful stop and search, that is not in itself a crime or a civil wrong. However, it may lead to disciplinary proceedings, and it may make any evidence obtained as a result inadmissible in a criminal trial (since it may have an “adverse effect on the fairness of the proceedings” under Section 78 of Pace).[/vc_column_text][vc_custom_heading text=”Arrest” font_container=”tag:h3|text_align:left” use_theme_fonts=”yes”][vc_column_text]An arrest usually occurs in the course of a criminal investigation when the police have legal and factual grounds to justify depriving the suspect of their liberty. The police have both common law (judge-made law) and statutory (law made by Parliament) powers of arrest. For example, under common law the police can arrest a suspect for breach of the peace. They can also arrest someone by executing an arrest warrant issued by a magistrate. Under Section 24 of Pace, the police can arrest someone without a warrant if they are about to commit an offence or the police have reasonable grounds to suspect they are about to commit an offence. Reasonable force can be used when making an arrest or when preventing a criminal offence, under Section 3(1) of the Criminal Law Act 1967.[/vc_column_text][vc_custom_heading text=”Unlawful Arrests” font_container=”tag:h3|text_align:left” use_theme_fonts=”yes”][vc_column_text]Failure to comply with the correct procedure renders an arrest unlawful. This could lead to a claim against the police for unlawful arrest or disciplinary proceedings. The admissibility of the evidence obtained as a result of the unlawful arrest may be challenged under Section 78 of Pace.[/vc_column_text][vc_custom_heading text=”The Power to Enter and Search” font_container=”tag:h3|text_align:left” use_theme_fonts=”yes”][vc_column_text]Under Section 8 of Pace, a magistrate may issue a warrant to search premises if a serious (indictable) offence has been committed and evidence relating to the crime is likely to be found in the premises. Under Section 19 of the act, police may seize anything that is on the premises if he/she has reasonable grounds for believing that it has been obtained in consequence of, or is evidence of an offence, and it is necessary to seize it to prevent it being concealed, lost, altered or destroyed. If an officer considers information stored in any electronic form and accessible in the premises could be used in evidence, they may require the information to be produced in a form which can be taken away and in which it is visible and legible. The following types of material cannot be seized – items subject to legal professional privilege (that is, confidential communications between the accused and their lawyer), personal records such as medical records, and material acquired by a person in the course of their trade, business or profession, held under an undertaking to keep it confidential.

Under Section 17 of Pace, a police officer may also enter and search any premises for the purposes of executing a warrant of arrest, arresting a person for an indictable offence, arresting a person for certain non-indictable offences, recapturing anyone who is unlawfully at large, and saving life or limb or preventing serious damage to property (amongst others).[/vc_column_text][vc_custom_heading text=”What do I do if I am arrested for an offence?” use_theme_fonts=”yes”][vc_column_text]After being arrested, a person will normally be taken to a police station for questioning. The suspect must be told of their right to have someone informed of their arrest, the right to consult privately with a solicitor and that free independent legal advice is available (regardless of individual financial circumstances), and their right to consult the police’s Codes of Practice. A written notice setting out these rights must be given to the suspect, which details certain other rights. Police officers should not say anything that could dissuade the suspect from obtaining legal advice. The suspect is entitled to consult with the duty solicitor. Duty solicitors are on call 24 hours a day at police stations up and down the country. They are there to provide legal advice to people who do not have access to another solicitor and ensure the rights of people held by the police are observed.

If you find yourself in this situation, it is a good idea to consult in private with a solicitor. They can advise you on what next steps to take. The Law Society of England and Wales’ website has a search facility where you can find criminal defence solicitors located near your postcode. See their website here: https://solicitors.lawsociety.org.uk/. The Criminal Law Solicitors’ Association has a similar search option. It is a good sign that the solicitor you use is a member of the Law Society’s Criminal Litigation Accreditation Scheme as this means they have and maintain a high level of skill and experience in the area of criminal litigation, as determined by the Law Society. See who is a member here: https://www.lawsociety.org.uk/support-services/accreditation/criminal-litigation/.[/vc_column_text][vc_custom_heading text=”I have a legitimate reason for what I’m doing, but I’m worried I could be prosecuted for it. What should I do?” use_theme_fonts=”yes”][vc_column_text]If you think your conduct could fall under a criminal offence, but you have a legitimate reason for doing it, it is a good idea to document your reasons for doing it. For example, if you are a journalist who needs to access materials relating to bomb-making for research (which could be an offence under Section 58 of the Terrorism Act 2000), it would be a good idea to take contemporaneous notes of your reasons for accessing the materials. This could be by emailing yourself your decision to access the materials or writing your reasons in a journal or Word document. Emails are helpful as they are time-stamped and it is a good idea to date any entry you make in a journal or document. The reason for making notes like this is to build up evidence in favour of your defence, in case the police or a prosecutor ever decided to pursue the case.[/vc_column_text][vc_custom_heading text=”Where can I find out more information about counter-terrorism law?” use_theme_fonts=”yes”][vc_column_text]

Students Not Suspects: www.nusconnect.org.uk/campaigns/preventing-prevent-we-are-students-not-suspects.

Liberty has a section on its website dedicated to the UK’s counter-terrorism laws: www.libertyhumanrights.org.uk/human-rights/countering-terrorism/overview-terrorism-legislation.

It also has a briefing on the Counter-Terrorism and Border Security Bill: https://tinyurl.com/ryoqshj

The ECtHR has produced a factsheet called Terrorism and the European Court of Human Rights.

[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”Ackowledgements” use_theme_fonts=”yes”][vc_column_text]This guide was produced by Index on Censorship, in partnership with Clifford Chance.[/vc_column_text][/vc_column][/vc_row]

Free Speech and the Law

16 Jan 20

[vc_row full_width=”stretch_row_content_no_spaces” css=”.vc_custom_1579193202991{padding-top: 55px !important;padding-bottom: 155px !important;background-image: url(https://www.indexoncensorship.org/wp-content/uploads/2020/01/free-speech2-scaled.jpg?id=111853) !important;background-position: center !important;background-repeat: no-repeat !important;background-size: cover !important;}” el_class=”text_white”][vc_column][vc_custom_heading text=”FREE SPEECH AND THE LAW” font_container=”tag:h1|text_align:center” use_theme_fonts=”yes” css=”.vc_custom_1579194284544{background-color: #000000 !important;background-position: center !important;background-repeat: no-repeat !important;background-size: contain !important;}”][vc_raw_html]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[/vc_raw_html][/vc_column][/vc_row][vc_row][vc_column][vc_empty_space][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]Please note we have a separate section on guides to the law on free expression and the arts in England and Wales.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][campaigns_casestudy category_id=”38952″][/vc_column][/vc_row]

« Older Entries

Next Entries »