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Section 58, Terrorism Act 2000 – MR, Defence and Art. 7 ECHR

Comment 5th July 2010

Section 58: Offence to, collect or make a record of information which is likely to be used in committing, or preparing to commit, an act of terrorism; or possesses information of that kind. 

Maximum Sentence: 10 years in prison.

Problems: 

No Mens Rea (MR) requirement. This makes this section, and indeed many other terrorist law, extremely broad. For example, following 7/7, does it make it offence to carry a Train Time Table? Furthermore, does owning a copy of the yellow pages (finding fertilizer to make homemade bombs) fall within the act?

The defence: 'reasonable excuse' which present the defence with an evidential burden. In R v K it was said:

"allow the defence to anyone who cannot be proved to have terrorist intent". 

This makes sensible reading.

In R v G, concerning a paranoid schizophrenic, the House of Lords (now Supreme Court) had an opportunity to impose limitations on s.58. The House of Lords (HL) outlined three principles for interpretation. The first and second of these clashed; as did the first and third.

The defence: reasonable excuse. For example, if someone, planning to rob a bank, has information on where to buy dynamite, can he depend on the excuse? The HL answer is: no, a bank robbery is not reasonable. This is true; however, it is also NOT terrorist. The defence is look at objectively and, as seen in R v G, there is no concession for mental illness. 

The reasoning in R v K should be followed i.e. Explanation: which shows that the possession of the information is unrelated with preparation for acts of terrorism. 

Moreover, in R v K, it was held that s.58 was, not only insufficiently certain at common law but also, incompatible with Art. 7. This argument was never considered in R v G. It needs to asked, why the Court did not use its power under s.4, HRA?

 

Options to address the problems:

1. Have an Actus Reus (AR) fit for purpose.

2. AR restricted to information which creates a genuine reason to believe that a person is preparing to commit an act of terrorism.

3. Essential that this link is shown by introducing an MR requirement or requiring the prosecution to prove the information is intended to be used for terrorist purposes. 

Why does this matter?

This section, and many others like it, need to be repealed on the basis that they are so very wide. Just like the popular s.44 power.

When drafting these laws, terrorism laws in particular, balance between security and liberty is paramount. The balance is a extremely complex issue and is not something which can easily be struck. However, these unnecessarily broad powers do not help matters. 

That is why repealing not just s.58 but all terrorism law is an important issue. Great Britain was a champion for liberty; this is slipping further and further away.

Mr Clegg, do not let this happen.

"Tis liberty alone that gives the flower of fleeting life its lustre and perfume; and we are weeds without it"


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