You don’t need to be a terrorist to commit a terrorist offence

I am grateful to a reader for pointing out that I have committed an offence under S.58A of the Terrorism Act 2000.

This morning the Daily Mail published a story about various senior police officers who have apparently been very well paid. Foremost in the Mail’s sights was Stephen Kavanagh, Chief Constable of Essex.

According to the Mail, Mr Kavanagh:

… is one of the highest paid UK police bosses with a pay package of more than £200,000.

Yet the officer – whose force has been rated ‘inadequate’ at protecting the vulnerable – claimed £32,000 in ‘allowances’ on top of his salary last year.

Part of this was £17,600 for a ‘chief officer allowance’. The only reference to this payment was buried in a footnote in the force’s accounts.

When asked about it, a force spokesman clarified that the ‘chief officer allowance’ was for Mr Kavanagh’s home internet and phone bills, private medical insurance, and contributions to his lunches, coffees and snacks.

This money is provided without him needing to provide receipts or proof of expenditure.

Incredibly, this perk – also handed to members of his senior team – has not stopped Mr Kavanagh making extra ‘subsistence’ claims on his taxpayer-funded expenses.

These include dinner bills of up to £93 a time, and Tube tickets worth £4.50.”

The story continued in the same vein, observing that the Chief Constables of Kent, Durham and Humberside had similarly generous remuneration and, particularly, expenses packages.

Assuming it’s true, and I have no reason to doubt it – all this is of undeniable public interest. At a time of austerity, when, as the Mail pointed out, 571 Essex Police officers have lost their jobs since 2010, the public are fully entitled to know that Mr Kavanagh has an annual “pay package” of £237,000, which was increased by £26,000 this year. It’s £30,000 more than the basic salary of a Judge of the Court of Appeal and £15,000 more than the Master of the Rolls or the President of the Supreme Court, although not quite as much as the Lord Chief Justice, Britain’s best paid judge, who gets a whopping £249,583.00 (you’d have thought they could have just rounded it up to £250,000).

Had the Mail stopped at that, there would not have been a problem. Unfortunately it went a bit further and explained how Mr Kavanagh’s pay package was broken down.

His expenses also include a £6,900 taxpayer-funded ‘housing allowance’ towards his sprawling five-bedroom home in Essex, which is worth nearly £1million and has a kitchen crafted by top designer Nicholas Anthony.”

This point was illustrated with an aerial picture of what I assume was the “sprawling five-bedroom” house, although not of the Nicholas Anthony kitchen. (For copyright reasons I can’t actually show you a picture of such a kitchen, but I can tell you that their collection

offers a wide range of creative options, with room concepts integrating the functions of the kitchen with the architecture, perfectly and unobtrusively. The elegant minimalistic language of form of the furniture elements from the SieMatic Pure style collection places the focus on what really counts; the lasting values of the exquisite materials and the precision of their workmanship down to the smallest detail.”)

Along with 232 other people, I shared the Mail’s story on Twitter. Shortly afterwards there was a reply from a tweeter called @polybore.

Publishing Pic of this officer’s house an offence Terror act 2008?”

There isn’t actually a “Terror Act 2008” and I am slightly ashamed that at first I rather airily batted away the suggestion that a criminal offence had been committed. However, there is a Counter-Terrorism Act 2008, S.76 of which (as Polybore also reminded, oh alright told, me) appears to cover exactly what the Daily Mail had done in publishing a picture of a building purporting to be Mr Kavanagh’s “sprawling 5 bedroom,” designer-kitchened home.

In the rather confusing fashion of many modern statutes, S.76 of the Counter-Terrorism Act 2008 adds a S.58A to the Terrorism Act 2000, which reads as follows:

58A Eliciting, publishing or communicating information about members of armed forces etc

(1) A person commits an offence who—

(a) elicits or attempts to elicit information about an individual who is or has been—

(i) a member of Her Majesty’s forces,

(ii) a member of any of the intelligence services, or

(iii) a constable,

which is of a kind likely to be useful to a person committing or preparing an act of terrorism, or

(b) publishes or communicates any such information.

As my pupil-master taught me, I went through the elements of the offence systematically. Subsection (1) (a) might the Daily Mail: Mr Kavanagh is a “constable,” a Chief Constable. Presumably the Daily Mail had “elicited the information” from somewhere (unless it just dropped, unbidden, into their lap). Even more pertinently, subsection (1) (b) applies because they had “published” it – certainly in the online edition (and probably, although I haven’t checked) in the paper edition too. It is easy to see how a picture of Mr Kavanagh’s house could be of use to a person “preparing an act of terrorism.” Moreover, the section contains no mental element – in other words the offence is complete even without any intent to assist a terrorist.

And with dawning horror I realised that it was not just the Mail that had apparently committed this terrorism offence. By tweeting the story I had published the same picture, as had at least 232 other people, including (inadvertently) the sensible and alert @polybore. On the face of it, all of us have committed an offence under the Terrorism Act. It carries a maximum sentence of 10 years imprisonment and, although I haven’t dared check, probably a whole host of other nasties as well to make sure that we don’t step out of line once we are released.

The legislation allows for just one possible defence: that there was a “reasonable excuse” for publishing the information. Although the public interest was served by publishing the original story, it is much harder to see any such interest in publishing a picture of Mr Kavanagh’s home. There may be other reasonable excuses, but it was wrong to do so, and I was wrong to give it further publicity by tweeting the story with the picture attached.

For what it is worth, I have deleted the offending tweet, and I am glad to see that the Mail has now removed the photograph from its website, presumably for the same reason. Police officers of all ranks run risks on our behalf every day and whilst I have no qualms about questioning their behaviour when the need arises, I certainly have no wish to make their lives any more dangerous than they already are.

I hope that I won’t be prosecuted for tweeting a story in a main-stream newspaper, and I hope that the Daily Mail won’t be prosecuted either. Whatever one might think of the paper, it is not a terrorist organisation and whatever you may think of BarristerBlogger, nor am I.

There are quite a number of morals that can be drawn from this but the main one is that you don’t actually need to be a terrorist to get sent to Belmarsh Gaol: anyone from the head of a huge news organisation to a single tweeter needs to beware the huge reach of the criminal law.


Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

16 thoughts on “You don’t need to be a terrorist to commit a terrorist offence”

  1. Laughs ! Matthew, I think you should be safe so long as you don’t start throwing scon’s in the barrister’s tuck shop shouting “A loo a ack bar” at the barrista !

  2. Terribly sorry, old boy, but you are “Bang to rights” as the vernacular has it. Any last requests, before they send you down?

  3. I’ve just submitted a paper about this topic, although I overlooked the 2008 Act (it hasn’t been used in prosecutions to any great extent, unlike its 2000 and 2006 brethren). Counter-terrorism legislation since 2000 is such as to ‘catch’ a huge range of basically innocuous behaviours, given a prior determination that there are ‘terrorist’ purposes involved. In terms of the ideal of the rule of law – requiring that laws which govern conduct should be prospective, intelligible, publicly available etc – it doesn’t look too good.

    1. No, not having had much dealings with terrorists amongst the drug dealers and burglars of Swindon I can now see how this legislation can catch people for doing nothing very much. That said, I do think it was wrong to publish a picture of the CC’s house.

  4. Of course you don’t need to be a terrorist to commit a terrorist attack. Only last week a young chap in Russell Square knifed a woman to death and seriously injured nine other people and the media have re-assured us that he wasn’t a terrorist, just a mentally ill Muslim of Somali origin, in fact just a mentally ill Norwegian person.
    And when another Muslim tried to behead a man in the Leytonstone Tube station we were told he was mentally ill too. Just shouting Allahu Akbar! and decapitating a few odd bods doesn’t make you a real terrorist.
    I mean you need a degree in terrorism to be a real terrorist, don’t you?

  5. From the memory of the image, I suspect Google-earth might be in the dock alongside all of you. I must admit I did feel it rather bad form for a person’s house to be shown in this way, but then the courts appear to publish the addresses of paedophiles up before the Beak, so other folk can come and throw cabbages at them, so maybe we should adopt the spirit of Spartacus and all be crucified together.

    1. Indeed, and I think various disreputable organisations published pictures of Lord Bramall’s house when it was raided in the “Nick” investigations.

  6. What this suggests, as neither you nor anyone have been arrested, is the law is arbitrary. Mr McAlpine pursued thousands of people on Twitter for defamation. Yet, a tweet clearly in breach of anti-terrorism legislation receives no punishment.
    If the laws are not enforced equitably, then can we say we have justice? Or is justice when it serves the interest of the powerful?

  7. As it happens, the s.58A offence appears in novel “Closed Loop” by Tom Stuart, about a criminal defence barrister who is forced on the run. The police justify their hounding of him partly on the basis of the looseness of the word “likely”, which, they are legally advised, can mean something less than “probable”.

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