Written by Professor Helen Fenwick, University of Durham
The recent tendency of a small number of young radicalised Muslims to travel to Syria or Iraq to fight with certain extremist groups, including ISIS (estimated at 500, see on BBC has led to a change in counter-terror law and policy). This piece considers the very wide range of terrorism offences currently available or planned to examine whether they are likely to have the capacity to prevent millennials going abroad to fight for ISIS (or IS or da’esh). Broadly speaking, there are now two groups of offences. Certain of the offences introduced between 2000-2006 are aimed at intervening and punishing persons at the very early stages of planning a terrorist attack, against the background of the problem posed by suicide-bombing. The second group of offences, introduced in 2015, and planned to be extended, are mainly (not exclusively) intended to reach even further back into the process that eventually leads a person to engage in terrorist acts, and to address the process of radicalisation itself. This second group of offences is clearly aimed mainly at those drawn in to go abroad to fight for ISIS, bearing in mind that they may return and may pose a danger in Britain.
A range of very broadly drawn terrorism offences was introduced in the Terrorism Act 2006 (TA), including a preparatory offence (s5) catching very early-stage preparation for terrorist acts (see Home Affairs Committee report here, p5) and an offence of glorifying terrorism (s1(3) TA 2006); the proscription-related offences in the Terrorism Act 2000, as amended, are very broad, and have a preventive aspect in that they catch membership of a proscribed organisation before any other terrorism related activity can occur (for discussion see eg this author, here). S1 of the Counter-terrorism and Security Act 2015 allows for the seizure of travel documents, including passports, aimed at preventing travel of radicalised persons to join ISIS.
The offence of being present at a place used for training under the Terrorism Act 2006 s8 is applicable to some British persons who have joined ISIS:. section 8 prohibits anyone from being at a place where weapons training is going on (whether in the UK or abroad), provided the person knew or believed that training was happening, or a reasonable person would have known. It must also be proved that the training was provided for purposes connected with ‘acts of terrorism’. S6 of the 2006 Act prohibits anyone from training others in terrorist activities, or from receiving training, and also carries a maximum penalty of 10 years’ imprisonment. There were a total of 69 arrests in the first half of 2014 (see National Policing Lead for counter terrorism, here) for a range of offences: fundraising for terrorist activity; the preparation and/or instigation of terrorism acts; travelling abroad for terrorist training. But obviously the burden of proof is on the Crown to prove the different elements of the offences, which presents grave difficulties given the civil war in Syria and the conflict in Iraq. Someone who has travelled back to the UK via Turkey may have also been to Iraq, been trained by ISIS or have fought with them, but obtaining proof of so doing to the criminal standard is highly problematic. Partly in order to combat the problem of proof, ‘Temporary exclusion orders’ (TEOs) are provided for under s2(1) of the Counter-terrorism and Security Act 2015. A TEO prevents the individual from returning to the UK (for up to two years and TEOs can be renewed) unless their return is in accordance with a ‘permit to return’ issued by the Secretary of State. It is an offence to return in breach of a restriction on return imposed in the TEO (s10). TPIMs (the replacement for control orders) can now impose relocation as well as other restrictions (including overnight house detention) on suspects, after amendment of the Terrorism Prevention and Investigation Act 2011 by the 2015 Act. Breach of a TPIM is a criminal offence.
The difficulty is that these offences are not directly aimed at the problem posed by the radicalisation of millennials who may then leave Britain to fight with ISIS. The offences could only be used either after a person returns or seeks to return (s8 TA 2006 or s2(1) of the 2015 Act) or just before they leave, if their plans became known (s5 TA 2006). But if the person in question manages to keep the planning stage secret and leaves without warning, deceiving their family or friends as to where they are going, the opportunity for intervention is lost. Obviously the offences may create deterrence, but if a person has become radicalised, they are not likely near to the point of departure, to imagine that they will want to return in future. Therefore the prospect of being charged with offences on return is unlikely to have much impact. Clearly, the deterrence value of the offences may have an impact on the families, but that can only occur if the family realises what the young person in question is planning (see eg BBC report on teenage boys recently apprehended in Turkey, here).
So while these offences may have some deterrent effect, the more important matter would be to prevent the radicalisation of these teenagers and young people in the first place. The persons who have left Britain to fight for ISIS or plan to arguably fall into two groups, although they may overlap. The first includes former petty criminals who are converts and are ‘attracted by the guns and the glamour of jihad’ (Spectator, here); the second includes those activated mainly by Salafi-Islamist convictions – although the idea of both violence and ISIS as glamorous may play a part. This latter group – which interventionist legislation is mainly aimed at – tend to share certain characteristics. They appear to have been radicalised in the sense that those Islamist convictions have been deepened (possibly far beyond the more ritualistic, traditional beliefs of their parents, see e.g. Hussain) and have become related to the idea of supporting ISIS violence.
The radicalisation process seems to have occurred due to various influences, although the precise combination of influences appears to differ somewhat from person to person, and requires further research. They are all young, and often teenagers; they appear in some instances to tend to come from quite conservative Sunni Muslim families, and possibly from mono-cultural communities; they may have imbibed the idea, from some of those around them, that ‘the West’ is the enemy of Islam and is associated with Israel (see Saltman & Winter, published by Quilliam here). They may have received an education at a private Muslim school or a state school that is predominantly Muslim. Schools of this nature obviously vary but that may have meant that they have not encountered a full range of non-Muslim or secular views during their childhood and early teenage years. That background, in which children and teenagers may sometimes tend growing up not to have non-Muslim friends with whom they can meet freely, and within which they may be partly segregated from non-Muslims in terms of a range of activities, may – but this notion is open to dispute – create greater susceptibility to radicalisation in general (eg Quilliam concept paper, here), and specifically to the blandishments of ISIS as an extremist Sunni organisation, even if (or because) their family opposes ISIS itself. Radicalisation may also occur partly online and via social media, including via postings from members of ISIS (eg as alleged in relation to Aqsa Mahmood, reported by the Independent here), but may also have been aided by the impact of radical Imams in mosques they have attended as children and teenagers, by radical clerics speaking at University or school, and in some cases via acquaintances who sympathise with some of the ideas underlying ISIS.
On the basis that attacking the initial causes of radicalisation is necessary, rather than merely seeking to punish a person who has already been drawn into supporting a terrorist group, a shift in counter-terror policy has occurred and a range of measures have just been put in place, or are planned, intended to address the problem of radicalisation. Ss26-34 of the Counter-terrorism and Security Act 2015 are intended to prevent persons from being drawn into terrorism by placing duties on certain authorities to disallow – in effect – the occasion of radicalisation or to provide information about that process on which the Home Secretary and police could act. The authorities include schools and Universities. So, for example, a University could come under a duty (via the giving of directions under s30) not to allow a radical speaker to come to speak at an event organised by the Islamic society and held on University premises. This is not the place to discuss either the existing free expression or equality duties of Universities that may relate to this duty, but it may be noted that s31 requires (redundantly since this duty already arises) that Universities ‘must have particular regard to the duty to ensure freedom of speech’.
S38 of the 2015 Act provides that local authorities must ensure that a panel is in place for its area for the purposes of assessing the extent to which individuals referred to the panel by the police (“identified individuals”, defined in subsection (2)) are vulnerable to being drawn into terrorism. Under s38 certain organisations are partners of panels and have a duty to co-operate with the panel, including by providing information. The partners include governors of prisons or young offender institutions or probation officers, sixth form colleges, schools, NHS Trusts. The police thus will be able to refer persons to such panels if they have been alerted in time to the fact that a process of radicalisation appears to be underway.
A number of measures aimed at combatting extremist groups are also expected to be in the 2015 Conservative manifesto. They include the introduction of banning orders to outlaw groups that incite hatred or cause fear. Extremism Disruption Orders (EXDOs) are planned to prevent ‘disruptive’ individuals from speaking in public or holding a position of authority. David Cameron said this week that measures aimed at radical groups (clearly referring to the Muslim Brotherhood and possibly Hizb Ut Tahrir) that do not appear to be engaging in terrorist acts but are extremist would be needed: “it is clear that further, more comprehensive measures will be required in the next parliament to tackle the threat from extremism in the UK, and to support communities to challenge those who oppose British values” (reported eg by Middle East Monitor, here).
The recent change of emphasis pinpointed here in counter-terror legislation is clearly more closely focused on disruption of the radicalisation rather than the planning stage, as the earlier legislation was. In that sense it has a greater chance of preventing some persons from travelling to support ISIS. But there is a ‘knowledge gap’ in relation to the indicia of radicalisation of those who have already left and those who may be planning to. There has been a tendency to essentialise the motivation of such persons, so that from a leftwing perspective the motivation may tend to be deemed to be based on marginalisation and anger at Western intervention in ‘Muslim lands’, and from the right the motivation may be deemed to relate to radical tendencies in the communities or families the persons in question come from. This polarisation affecting the debate is obscuring the real problems. Both ideas may as discussed have some relevance to different persons attracted to ISIS, but politically-charged simplification of such motivations fails to make a useful contribution to debate shaping future development of counter-terror legislation.