Yes, the noble and learned Lord is quite right. Many of them would be caught, particularly in an online context, expressing an opinion quite poisonous in nature and intended to cause harm.
As a result of the gap, it has not been possible for the police to act against prolific and high-profile preachers of hate—as the noble and learned Lord has just pointed out—who have made highly inflammatory public speeches that are very clear about the speaker’s support for a terrorist organisation and that are, on any reasonable assessment, likely to cause the audience to be influenced to support the organisation. Prosecution has not been possible in these cases because the statements made cannot be proven to amount to an “invitation”—a deliberate act of encouragement—to support the group. The gap that the law needs to address concerns individuals who are reckless as to whether they will cause harm to arise.
Under Amendments 3 and 4, however, in the names of the noble Baronesses, Lady Hamwee and Lady Jones, this gap would not be addressed. They would remove the recklessness test and replace it with one that effectively repeats the existing position, so it would still be necessary to prove the same deliberate act of encouragement. To be clear, Amendments 3 and 4, both of which would have the same effect, would effectively nullify the utility of this clause and, as such, if they are made we might as well strike the whole clause from the Bill—and I know that some noble Lords want to do that.
Reckless activity such as I have described can have a powerful and harmful effect in initiating or moving along the process of radicalisation. We have seen time and again that engagement with radicalisers, hate preachers and organisations such as that headed by Anjem Choudary has been a prominent feature in the backgrounds of those convicted of planning or carrying out terrorist attacks.
In giving evidence to the Bill Committee in the House of Commons, Assistant Commissioner Neil Basu provided two powerful examples—Mohammed Shamsudin and Omar Brooks—to illustrate the type of case where this gap arises. I urge noble Lords to consider carefully that evidence. Both examples are senior figures within al-Muhajiroun, both have an extensive history of involvement in radicalisation and the spreading of extremist propaganda, and one has previous terrorism convictions. Both individuals gave public speeches that were clear about the speakers’ own support for Daesh, its ideology and its actions—including, for example, throwing gay people off buildings—and both voiced their approval of past terrorist attacks, including the murder of Lee Rigby and the 2015 Sousse attack in which 30 Britons and eight others were killed.
I do not need to explain to noble Lords how such speeches can cause great harm, spreading hatred and poison and radicalising vulnerable individuals, potentially to the point of carrying out attacks. But Assistant Commissioner Basu reported that, despite this, it was not possible to prosecute either individual in relation to the public speeches he had described. This is because, on the specific facts, neither could be proved to have invited their listeners to support the proscribed organisation they were speaking so vehemently in support of. This surely is not the right answer.
It cannot be right that we do not give the police and the courts the power to take action in the face of such poisonous rhetoric and such unmasked and virulent support for terrorism, in circumstances where there is, on any objective assessment, a real risk that individuals to whom it is directed will be influenced by it. Clause 1 does just that and would close this gap. Specifically, it amends Section 12 of the Terrorism Act 2000 so that it will be an offence for an individual to express support for a proscribed terrorist organisation when that individual is reckless as to whether another person will be encouraged to support the organisation. The crux of the amended offence will be the introduction of the recklessness test, which Amendments 3 and 4 would remove.
I recognise that the test has caused concern and I would like to take this opportunity to explain to noble Lords what it means and how it will work in practice. The term “reckless” is a well-established, well-understood concept in criminal law. It is one with which the courts are familiar, particularly as a result of the clear case law established by the then Appellate Committee of this House in 2003 in the case of R v G and another. It therefore does not to be defined or further explained in the Bill, as some have suggested.
Under the terms of that judgment, a person acts recklessly where he or she is aware that, in the circumstances, there is a risk that their conduct will result in the proscribed outcome and they none the less engage in the conduct in circumstances where a reasonable person would not. In this context, a person might act recklessly if, in the course of addressing an audience consisting primarily of individuals whom he believes are of an Islamist extremist mind set, he speaks of his own support for Daesh, believing that he has a degree of influence over the audience and being aware of the risk that members of the audience will be influenced by him to support Daesh. It is uncontroversial to say that a reasonable person would not and should not proceed to make that speech in those circumstances. Clause 1 will ensure that the person who none the less recklessly does so can be held to account by the courts. Given the harm that can arise as a direct result of this type of radicalisation, the Government consider this proportionate.
The noble Baroness, Lady Hamwee, asked for a definition of “directed” in the context of the person to whom the defendant “expresses an opinion or belief”. “Directed” means conveyed to or aimed at that person or persons, who may not need to be known to the defendant. If such an expression of a belief is tweeted or otherwise uploaded on to a social media platform, it is directed to those who would see such an expression—that is, those following the defendant’s twitter feed.