UN slams UK for Starmer’s war on pro-Gaza journalism and activism

Special Rapporteurs censure UK over abuse of anti-terror legislation to harass and criminalise journalists and peace activists

A group of UN Special Rapporteurs – independent human rights experts who advise the United Nations on human rights issues – have formally written to the government of Keir Starmer on behalf of the UN’s Commissioner for Human Rights to demand an explanation of its abuse of the Terrorism Act to raid, harass, intimidate and criminalise journalists and political activists who expose and resist Israel’s genocide in Gaza.

The government had sixty days to respond privately to the UN’s 4 December letter but has not bothered to do so, so the letter has now been made public. In it, the four experts tell the Starmer regime that those it is targeting ‘appear to have no credible connection to “terrorist” or “hostile” activity’ and that:

Powers under counter-terrorism legislation have been used on multiple occasions to examine, detain, and arrest journalists and activists, particularly at the UK border. It is alleged that journalists and activists who are critical of Western foreign policy in the context of the conflict in the Middle East and the Russia-Ukraine war are especially affected by the reported misuse of these powers.

In particular, schedule 7 of the Terrorism Act 2000, and schedule 3 of the Counter-Terrorism and Border Security Act 2019, have been used to examine and obtain data from journalists and activists, including Johanna Ross (Ganyukova), John Laughland, Kit Klarenberg, Craig Murray and Richard Medhurst in circumstances where they appear to have no credible connection to “terrorist” or “hostile” activity.

Furthermore, section 12 of the Terrorism Act 2000 has been used to charge journalists and activists, including Richard Barnard and Richard Medhurst, for allegedly expressing support
for a “proscribed organisation” in the course of activism and media reporting…

…we raise concern about an alleged pattern of over use, or other misuse, of counter-terrorism legislation to target legitimate freedom of expression and opinion, including public interest media reporting, and related freedoms of peaceful assembly and association, and political dissent or activism.

Rather than start to behave lawfully after receiving the letter, Starmer and co not only ignored it but decided to prosecute author Tony Greenstein and activist Natalie Strecker under the anti-terror legislation despite them clearly posing no threat of terrorism whatever. Journalist Richard Medhurst has also been charged under the Terrorism Act for doing his job and refusing to hand over passwords that would allow the state to rifle through contacts, sources and confidential communications.

The UN letter expresses the experts’ ‘concern’:

regarding the potential misapplication of counter-terrorism lawsagainst journalists and activists who were critical of the policies and practices of certain governments, which may unjustifiably interfere with the rights to freedom of expression and opinion and participation in public life, lead to self-censorship and have a serious chilling effect on the media, civil society and legitimate political and public discourse.

It also details some of their criticisms concerning the badly-written Terrorism Act 2000, which is (deliberately) so broad that it can be abused in the way that the Starmer regime is now doing:

We are particularly concerned by the broad scope of section 12(1A) and schedule 7 of the Terrorism Act 2000 and schedule 3 of the Counter-Terrorism and Border Security Act 2019.

Section 12(1A) of the Terrorism Act 2000

We are concerned at the vagueness and overbreadth of the offence in section 12(1A) of the Terrorism Act 2000, which criminalizes expressing an opinion or belief that is supportive of a proscribed organisation and being reckless as to whether it encouraged support for that organisation. We reiterate the many concerns about this offence identified by the UK Joint Parliamentary Committee on Human Rights in its report on the bill that introduced the offence.

It goes on to give detail of reasons why the law is unfit and open to abuse:

The term “support” is undefined in the Act and in our view is vague and overbroad and may unjustifiably criminalize legitimate expression. In R v Choudary and Rahman [2016] EWCA Crim 1436 at para. 46, the Court of Appeal affirmed (in relation to another section 12 offence also referring to the term “support”) that “[i]n its ordinary meaning, ‘support’ can encompass both practical or tangible assistance, and what has been referred to in submissions as intellectual support: that is to say, agreement with and approval, approbation or endorsement of, that which is supported”.

The Court of Appeal further indicated that it could include “encouragement, emotional help, mental comfort and the act of writing or speaking in favour of something”. The Court reasoned that “[the] organisation as a body, and the individual members or adherents of it, will derive encouragement from the fact that they have the support of others, even if it may not in every instance be active or tangible support”.

As the UK Joint Parliamentary Committee on Human Rights observed, however, in the context of section 12(1A) the meaning of expressing support for a proscribed organization is ambiguous and could capture speech that is neither necessary nor proportionate to criminalize, including legitimate debates about the de-proscription of an organization and disagreement with a government’s decision to proscribe. The Committee warned that the offence “potentially catches a vast spectrum of conduct”.

We note that there is no requirement that the expression of support relate to the commission of violent terrorist acts by the organization. As such, the offence may unjustifiably criminalize the expression of opinion or belief that is not rationally, proximately or causally related to actual terrorist violence or harms.

The offence further does not require any likelihood that the support will assist the organization in any way. It goes well beyond the accepted restrictions on freedom of expression under international law concerning the prohibition of incitement to violence or hate speech.

The suggestion by the Court of Appeal that any support will somehow encourage the organization is nebulous and tenuous, and over-extends liability to capture speech that
may have a very remote and speculative relationship to terrorist violence.

We note that some proscribed organizations are de facto authorities performing a diversity of civilian functions, including governance, humanitarian and medical activities, and provision of social services, public utilities and education.

Expressing support for any of these ordinary civilian activities by the organization could constitute expressing support for it, no matter how remote such expression is from support for any violent terrorist acts by the group.

We note further that an organization may be prescribed under section 3 of the Terrorism Act 2000, inter alia, when it merely promotes or encourages terrorism, including through unlawful glorification, even if the organization is not itself involved in committing, participating in, or preparing for violent terrorist acts. As such, it is an offence to express support for an organization that promotes/encourages but does not commit terrorism, seriously attenuating any meaningful causal link to the eventual commission of a violent terrorist act.

We note further that view of the United Nations Human Rights Committee that the predicate definition of terrorism in section 1 of the Terrorism Act 2000 is itself over-broad and “unduly restrictive of political expression”, and has been criticized also by the two Independent Reviewers of Terrorism Legislation and the UK Supreme Court in R v. Gul (2013)
(CCPR/C/GBR/CO/7, para. 14).

Further, the section 12(1A) offence does not require the person to intend to encourage others to support the organization. The lower mental element of “recklessness” is sufficient, namely where the person had some subjective foresight that their conduct will result in the proscribed outcome and nonetheless engages in it in circumstances where a reasonable person would not.

The UK Joint Parliamentary Committee on Human Rights has warned that a mental element of recklessness when applied to acts of speech alone is dangerous; and that this is aggravated by the lack of clarity as to what speech constitutes an expression of support.

The principle of legality under article 15(1) of the ICCPR requires that criminal laws are sufficiently precise so that it is clear what conduct constitutes an offence and the legal consequences of committing an offence. This principle seeks to prevent ill-defined and/or overly broad laws which are open to arbitrary application and abuse, including to target civil society on political or other unjustified grounds (A/70/371, para. 46(b)). We are concerned that section 12(1A) does not meet this standard because of its vagueness and overbreadth.

We are further concerned that the absence of legal certainty may have a chilling effect on the media, public debate, activism, and the activities of civil society, in a context where there is a heightened public interest in discussion of the conflict in the Middle East, including the conduct of the parties and the underlying conditions conducive to violence in the region. [Skwawkbox note: surely exactly what the Starmer regime intends.]

We are further concerned that a person could be prosecuted for isolated remarks or sentences that mischaracterize the overall position of the individual, or despite the individual’s intentions or continued and express disavowal of terrorist violence, given the subjectivity and contested meanings of certain expressions in relation to sensitive or controversial political conflicts.

The four then call on the UK government not just to stop abusing the awfully-written legislation, but to repeal it entirely or at the very least to amend the clear dangers and injustices out of it because it does not meet the international legal standards to which the UK is a signatory:

In sum, we are concerned that vagueness and overbreadth of section 12(1A) constitutes and unnecessary and disproportionate restriction of freedom of opinion and expression under article 19 of the ICCPR. We note that freedom of expression may only be restricted if the threshold established by article 19(3) of the ICCPR which refers, inter alia, to the protection of “national security”– is satisfied.

The Human Rights Committee has stipulated that these restrictions must be “the least intrusive instrument” among those which might achieve the desired result and must be “proportionate to the interest to be protected” (general comment No. 27, para. 14). In this respect we emphasize that the section 12(1A) offence is unnecessary since there is already an offence of “encouragement of terrorism” under section 1 of the Terrorism Act 2006, which is a more calibrated and proportionate offence targeting encouragement of terrorist crimes.

We encourage your Excellency’s Government to repeal section 12(1A), or otherwise to amend it to protect freedom of expression, and to develop prosecutorial guidelines for its appropriate use to avoid the unnecessary or disproportionate incrimination of political dissent.

The legal and human rights experts then turn their criticism toward Schedule 7 of the Terrorism Act 2000, pointing out its similar unfitness and scope for abuse and miscarriages of justice:

We are concerned that police powers at UK border areas and ports under schedule 7 may be unjustifiably used against journalists and activists who are critical of Western foreign policy. We note that the examination of each journalist named in this communication under schedule 7 was premeditated, and that the examination, confiscation of devices, and DNA prints were conducted despite the apparent absence of a credible “terrorist” connection.

We are concerned that such powers carry a risk of intimidating, deterring, and disrupting the ability of journalists to report on topics of public importance without self-censorship. Schedule 7, section 2 of the Act empowers an examining officer to stop, question, and detain a person for the “purpose of determining whether he appears to be a person falling within section 40(1)(b)”.

Section 40(1)(b) provides that “terrorist” means a person who “is or has been concerned in the commission, preparation or instigation of acts of terrorism”. Section 2 applies to a person if he is at a port or in the border area, and the examining officer believes that the person’s presence in that area is connected with his entering or leaving Great Britain or Northern Ireland.

Section 2(4) provides that an examining officer may exercise his powers to stop, question or detain whether or not he has grounds for suspecting that a person falls within section 40(1)(b).

A person examined under schedule 7 can be held without charge for one-hour under section 6A(2). Although the person examined is not considered to be “detained” under the Act, and does therefore not enjoy the right to silence or legal counsel, section 18 establishes an offence for the wilful failure to comply, obstruct, or frustrate a duty, search, or examination under schedule 7.

If the individual is formally detained, fingerprints, photographs, and non-intimate DNA samples can be taken pursuant to schedule 8 of the Terrorism Act 2000.

We are concerned that the distinction between “examination” and “detention” under the Act is artificial given the punitive sanctions for of non-compliance, and that this distinction may be inconsistent with the accepted meaning of “arrest” or “detention” under article 9 of the ICCPR.

We are further concerned that the extensive powers authorised under section 2 do not require any degree of suspicion that a person falls within the meaning of “terrorist” at section 40(1)(b).

The extreme breadth of such power enables unnecessary, disproportionate, arbitrary or discriminatory interference with an individual’s rights, including freedom from arbitrary detention, freedom of movement under article 12(1) of the ICCPR, and the rights to leave and
enter one’s own country under article 12(2) and (4) of the ICCPR.

There is no material on which to form a rational judgement as to whether the use of the powers
are necessary or proportionate in the individual case. Even a “hunch” or the “professional intuition” of the officer concerned could be the basis on which the powers will be exercised.

The arbitrary potential of the power is compounded by the low threshold of determining whether a person merely “appears” to fall within section 40(1)(b). The safeguards around the power, such as restrictions on the location, duration, type of questioning and search, and the supervision of the Independent Reviewer of terrorism legislation, are insufficient to prevent the misuse of the power and the potential harm caused to the rights of the individuals examined.

We are further concerned that the retention of electronic data under section 11A(3)(a) “for so long as is necessary for the purpose of determining whether a person falls within section 40(1)(b)” is disproportionate, particularly if it were used to justify retention indefinitely so as to provide a bank of data for future use in connection with subsequent investigations or the collection or receipt of additional information.

We consider that the retention of data for a long period should require an objectively established ground for the suspicion and be strictly necessary and proportionate to that law enforcement objective. In this regard, we refer your Excellency’s government to article 17 of the ICCPR which requires that “[n]o one shall be subjected to arbitrary or unlawful interference with [their] privacy, family, home or correspondence, nor to unlawful attacks on [their] honour and reputation”.

We note that several journalists detained under schedule 7 have had their electronic devices confiscated for a significant period of time and have not been updated on the use, retention or destruction of their data, or advised in relation to their personal data protection rights.

We urge your Excellency’s Government to consider the growing number of instances where schedule 7 may have been inappropriately directed towards journalists and activists, and to consider addressing this through amendments to the legislation, guidance for relevant officials, and training of border security officers. We further encourage your Excellency’s Government to address the judiciary’s concerns regarding the retention of electronic data.

The letter goes on to point out how the Counter-Terrorism and Border Security Act – which has also been abused by the Starmer regime – allows the state to categorise dissent and criticism as ‘hostile acts’ that can be targeted:

Schedule 3 of the Counter-Terrorism and Border Security Act 2019 largely mirrors schedule 7 of the Terrorism Act 2000. The primary difference is that an examining officer may question a person for the purpose of determining whether the person appears to be a person who is, or has been, engaged in “hostile activity” rather than falling within section 40(1)(b) of the Terrorist Act 2000.

The term “hostile act” is defined at section 1(6) as an act which: “(a) threatens national security; (b) threatens the economic well-being of the United Kingdom in a way relevant to the interests of national security; or (c) is an act of serious crime”.

We raise similar concerns regarding the vague and over-broad definition of “hostile activity”, which includes the sweeping terms “national security” and “economic well-being”. The ambiguity within these concepts reposes an extraordinary discretion in the police when exercising the relevant powers, increasing the risk of unnecessary, disproportionate or otherwise arbitrary interferences in the rights to liberty and privacy, and having a chilling effect on freedoms of thought, conscience, opinion and expression, including in relation to
journalists and activists.

It is signed by:

• Ben Saul, Special Rapporteur on the promotion and protectiSpecial Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism
• Irene Khan, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
• Gina Romero, Special Rapporteur on the rights to freedom of peaceful assembly and of association
• Ana Brian Nougrères, Special Rapporteur on the right to privacy

The letter – unsurprisingly, as a formal and legally-constructed United Nations communication – accuse the Starmer regime of the deliberate abuse of shoddy legislation to harass, intimidate, threaten and criminalise free speech on Palestine to protect Israel, because of Starmer’s absolute commitment to Zionism and the ‘right’ of Israel to slaughter and act as it wishes.

But it is nonetheless clear that this is exactly what Starmer and his handlers are doing – and exactly what the letter exposes.

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