Speech by Sue Hemming, CPS Head of Counter Terrorism, at the National Security Summit, London, 25 October 2017
Assistant Commissioner Rowley has spoken about the current threat and countering terrorism in all its guises. There is no area where it is more important for all agencies and departments to have a joined up approach and ensure that we have a consistent, coherent and effective system. Prosecution is an important part of the PURSUE element of the CONTEST strategy which aims to keep our country safe.
We work with our partners to help bring a whole system approach and there has never been a more crucial time to ensure we are doing so effectively.
I am going to say something today about how we work together, applying the legislation and the importance of criminal justice.
Prosecutors regard those who commit terrorist offences as criminals and we believe that it is important that we try them fairly and objectively through our mainstream criminal justice system; applying the same standards as we would to any other case, and using offences that properly reflect the conduct concerned. For that reason, all decisions to prosecute, however serious the offending, are made applying the Code for Crown Prosecutors. That is, that there is sufficient evidence to prosecute and it is in the public interest to do so. Our decisions are made independently, and decisions about who to prosecute and what for are for the CPS to make, except that we need the Attorney General's permission to prosecute where an offence concerns the affairs of another country.
We must recognise that specific counter terrorism powers are necessary, and acting early to safeguard public safety means that traditional investigative powers are not always sufficient. And prosecutors need offences available to prosecute those who rightly need to be brought to justice, where traditional criminal offences do not fit conduct that rightly calls for punishment. Unlike other criminal offending, we are usually dealing with the intent to cause fear or harm for a terrorist purpose, and punishing the conduct rather than the consequences. There is no conflict between having appropriate laws and powers to protect national security and acting in a way that safeguards human rights, provided we tackle all types of terrorism in the same way and punish the conduct appropriately regardless of which terrorist motivation is behind it.
The key to effective prosecution is to apply the law fairly, independently and objectively within proper protections and safeguards. It is this message that we need to get across when critics suggest that we are unfairly targeting one community over another; we prosecute criminal conduct and nowhere within our criminal justice approach do we differentiate between motivations or communities. Maybe more needs to be done to get that message across and increase trust across all communities.
Each case is considered on its own merits and, whilst we have policies to help us in our decision making, this does not mean automatic prosecution in every case. We review each one on its own facts, assess the strength of the credible, reliable and admissible evidence, and take into account the relevant public interest factors for each suspect. Where we decide to prosecute, we choose the most appropriate offences or offences for the conduct in question, allowing sufficient sentencing powers should he or she be convicted. CPS policies such as those for dealing with youths and mental health apply, and whilst not every terrorist allegation will need a prosecution, the seriousness will often make it more likely than not that prosecution will take place in a terrorism case.
We use offences such as murder, conspiracy to murder, explosive substances or incitement to hatred, but in many cases conduct needs to be prosecuted using the wide range of terrorism offences available to us. These include acts preparatory to terrorism, attending terrorist training, support for a proscribed organisation and distribution of terrorist material.
Confusion sometimes follows where we charge ordinary criminal offences following a terrorist incident. But where we charge using ordinary criminal offences, we do so as a 'terrorist connection' and we make that clear on first appearance when we take it to Westminster Magistrates' Court under the Terrorist Protocol. If a conviction follows, this enables the judge to impose enhanced sentences and make notification orders; and there are different parole terms that can be applied.
The clearest examples of the use of substantive criminal offences for terrorist attacks were in the prosecutions following the murders of Lee Rigby and Jo Cox MP. Each case had a different motivation but both came within the definition of being 'racially, religiously, politically or ideologically' motivated; they were prosecuted in the same way, as a murder with a terrorist connection.
Prosecutors work closely with partners to ensure that we are able to concentrate resources on the right cases and build strong prosecutions at an early stage. Cases emerging from the conflict in Syria and the emergence of Daesh, together with the more recent terrorist attacks, have resulted in a substantial increase in the number of prosecutors dealing with terrorism cases. We have doubled the size of our team and we are still growing; we have a recruitment campaign for more prosecutors being launched shortly to help us deal with further increases.
Our role includes providing early investigative advice where the investigation needs to develop before a charging decision can be made, and reactive advice where unplanned arrests are made to prevent an incident, or, as has tragically happened several times this year, when there are terrorist attacks. CPS prosecutors advised after the arrests following the Manchester Arena attacks by providing assistance on the fast moving investigation as the police sought to establish who else, if anyone was involved. Similarly, prosecutors were on hand to provide advice after the Westminster and London Bridge attacks, if and when required, and we charged, and are prosecuting, the cases arising from the terrorist attack at Finsbury Park Mosque and the serious attempt at Parsons Green tube station. We also advise the Counter Terrorism Internet Referral Unit on web content so that they can decide on appropriate action to address terrorist material on the internet.
There have been a number of factors which have made our work more challenging over the last few years. There has been a change in the type of case that we have been dealing with and we have had to ensure that our prosecutors have developed their skills to tackle the shifting threat and keep up with emerging technologies.
Since 2013, we have had a significant number of cases resulting from what have been termed Foreign Terrorist Fighters - people who have travelled to Syria and returned, or who were stopped trying to travel there. However more recently, the increase has been in activity at home. Travelling or attempting to travel to Syria is not a crime, but inviting support for Daesh, being a member of a proscribed organisation, or attending a training camp, here or abroad, is an offence. Much of the increase has been from Daesh or similarly inspired activity, but we have also seen an increase in extreme right wing activity from organisations like National Action who have been recently proscribed. This can be demonstrated in part by the increase in terrorism arrests for those who identify themselves as from 'white' ethnic groups.
The year ending March 2017 saw the highest number of terrorism-related arrests in any financial year since the data collection began in September 2001; at 304, there has been an increase of 18% compared with 258 arrests in the previous year. In the same year we prosecuted 79 trials, an increase of 55% from 51 the previous year and an overall conviction rate of 86%, which has held reasonably steady each year. Alongside these quite substantial increases, the last Home Office Statistical bulletin reports a gradual increase in sentences in the last financial year.
The most frequently charged offence for activity linked to Syria has been acts preparatory to terrorism and it has been used more recently for lone actors preparing acts of terrorism here. Between 2006 and 2016, there have been 90 adult offenders charged with this offence, 81 of whom have received immediate custodial sentences with a mean average of eight years and five months imprisonment; the maximum being life.
There has also been an increase in the number of individuals charged with proscription offences and offences such as encouraging terrorism or distributing terrorist material. These offences, and others such as possession of material likely to be of use to a terrorist, can lead to more serious offending and undoubtedly help or encourage others to carry out or support terrorist acts. From 2006 to 2016, there have been 28 adult offenders sentenced for encouragement and/or distribution with a mean average two years and 10 months imprisonment; the maximum sentence being seven years.
Most, if not all, cases involve substantial amounts of digital material and this has been growing significantly over the last few years. Many relatively minor criminal cases now involve examination of sophisticated mobile devices with large storage capacities and a significant amount of potentially relevant social media content. The average terrorist case has around four terabytes of material; the more significant ones have over 10 terabytes and the biggest ones, well in excess of 20. To give you some concept of quantity, you would need about 125 empty iPads with no apps or content to store four terabytes of material.
Our legislation permits us to prosecute most online, as well as off line, criminal activity and the Government has recently announced a modernisation to the possession of terrorism material offence to ensure that multiple streaming of terrorist material is adequately covered.
This sort of offence often requires us to apply for evidence from abroad. The ever increasing international nature of serious offending means that requests for mutual legal assistance from other countries are frequent. However, in many terrorist cases, this may not be possible if the country involved has no functioning criminal justice system, like Syria, or where evidence can only be collected from the battlefield during conflict; as a result we often need to rely on digital media to build a case.
You may be aware that there is currently a Sentencing Council consultation in relation to nine draft guidelines for terrorist offences. These seek to reflect a reduction in the level of sophistication being used for more serious offending since the Court of Appeal gave guidance in the case of Kaharlast year, and, to recognise growing concern about the increasing amount of extremist material available on the internet. The overall tenor of the consultative guidelines is to increase the tariff at the lower end of offending and bring a level of consistency. The Council says it 'believes that (the) proposals take account of the need to punish and incapacitate to a greater extent in the light of the emergence of greater threats to society'.
These developments and shifts in threat have not only affected us in the UK. We have seen an increase in terrorist attacks and Daesh inspired activity across Europe, and elsewhere, as individuals target security officials and iconic and busy sites or events. This may be as travel to Syria has become more difficult and the geographical spread of Daesh has diminished. It also appears that the growing threat of extreme right wing activity is also spreading.
We have continued to develop and strengthen our relationships with counterparts in Europe and further afield. Our legal systems may be different, but regular sharing of knowledge, experience, intelligence and evidence is important to put us in the strongest position to disrupt and prosecute those who seek to harm us, wherever they may be.
I will conclude on that note and reflect that now, more than ever, we need to work together to maximise our ability to tackle the threat. Terrorism is not new to this country but the current threat does not appear to be diminishing any time soon. Resources are scarce, but we will continue to do our best to protect people here and abroad, and ensure we have the right strategy and tools to do so.