Treason Versus Outraging Public Decency: Over-Criminalisation and Terrorism Panics

Introduction

An issue that is currently being debated is what to do about returning Islamic State of Iraq and Syria (ISIS) brides. These women travel to war zones such as Syria and voluntarily marry jihadist militants. Many of the marriages are temporary marriages because of the high mortality rate among the fighters they marry. It is said they serve to provide comfort and intimacy for the fighters. Their motivation for providing this sort of comfort to the fighters is not too different from the motivation the jihadist militants have for fighting. ¹ Many of these women have not personally perpetrated any crimes or assisted or encouraged others to do so. In many cases, there is no evidence of them being involved in preparatory crimes or conspiracies and thus they technically can return to Britain without any legal consequences.

This has led to a frenzied debated in the media about whether we need to enact a new treason offence. The Home Secretary has grasped penal populism with alacrity, but what we need are nuanced and reasoned arguments so we can decide what legal responses, if any, are appropriate. I shall start by trying to demonstrate that the law of treason offers nothing in such cases. More generally, I shall argue that the law of treason is not apt for tackling the modern problem of terrorism and therefore should not be expanded. Thereafter, I shall refute the argument that we need a new offence of treason because our current terrorism laws are not sufficiently extensive and the claim that our current law does not allow for severe enough punishments. It will be argued if anything terrorism is over-criminalised and disproportionately punished. Finally, I shall argue that the common law offence of outraging public decency could apply to some returning ISIS brides but that we should be thinking hard about the need for a criminal law response when we are relying on these sorts of vague offences. The bare act of deserting Britain to marry a militant has the potential to outrage public decency, but it is more likely the offence would be applied when the returning bride makes hateful comments in the media.

I examine whether there are lacunae in the law for cases where people have travelled abroad and married and/or associated with terrorists and war criminals. It will be argued that it is not a problem of substantive law, but one of insufficient evidence to prosecute. Having said that, if we were to criminalise the act of association ² under a broad perfidy offence, it would catch cases where we are unable to prove that the associate (wife, sister, friend and so on) assisted or encouraged terrorism or war crimes. A recent report by Policy Exchange, authored by a shadow minister; a Tory MP—who is a former soldier, a barrister/broadcaster and a leading academic, ³ argues that the law of terrorism is inadequate in many cases and does not provide sufficient sentences for certain acts involving betrayal. The makeup of the authorship of that report means it is likely to be influential. ⁴ Therefore, I shall try to address some of the concerns raised by the authors of that report and put forward robust counterarguments.

A new offence of treason would only plug the evidential gap by making the bare act of betrayal itself criminal (the bare act of a British citizen associating in anyway with enemies of Britain) but that act of betrayal in itself would hardly justify the sorts of sentences that the Policy Exchange report calls for. The current problem is one of a lack of evidence. It might be assumed that some of the ISIS brides took a more than passive role, but we cannot try people on a statistic guess. We need evidence on what the particular ISIS bride was intending and evidence about what actions she personally undertook. ⁵ We need evidence to support any allegations of active involvement in armed conflicts involving Britain forces. There may well be evidence, but until it is discovered these ladies remain innocent until proven guilty.

The ISIS bride might not have been voiceless or passive, ⁶ but without evidence to the contrary, a court of law following due process cannot do much. Individuals are not tried as collectives of people based on an empirical average. Inferences might be made about what they might have done, given what we know about what others within the group were doing, but that is irrelevant for proving guilt in a criminal trial. ISIS might have carried out terrorist attacks in Britain, but that is different from it being in a war with Britain. ⁷ ISIS ended up in an armed conflict against international forces serving as a united force, not in a battle against Britain as a nation. There are many complexities involved for ascertaining disloyalty to Britain in a strong sense. Many terrorist acts do not necessarily involve an intention to betray Britain. ⁸ They often are an attack on universal values shared by many advanced nations. There was no legal basis for Western powers taking action against ISIS in Syria, even if ex post facto one has been created. ⁹ This adds further complexity to retroactively applying betrayal to the situation.

In this essay, I shall pay particular attention to the issue of the returning ISIS bride, since they seem to fall outside the current plethora of terrorism offences. I will use that exemplar to examine the issues of proportionate punishment, fair labelling and the case for abandoning treason as a response to terrorism. ¹⁰ At the moment, the only offence that might cover Shamima Begum and similar returning brides would be outraging public decency. While amendments to s 12 of the Terrorism Act 2000 as amended by s 1 of the Counter-Terrorism and Border Security Act 2019 might catch her reckless comments made in media interviews, laws ought not be applied retroactively. The new offence seems to be a form of inchoate complicity by recklessness, it is enough that she realised she might encourage—she need not in fact encourage. What’s more, s 11(2)(b) of the Terrorism Act 2000 provides that it is a defence to the offence of having membership of ‘a proscribed organization’, if D can demonstrate: ‘(b) that he has not taken part in the activities of the organisation at any time while it was proscribed’. There are a host of offences listed in s 17 of the Terrorism Act 2006 that apply to people who have perpetrated crimes in countries other than Britain. The idea is that they could be charged with those terrorist offences as soon as they are back on British soil. A woman fleeing Britain today to marry a militant or war criminal or member of some other proscribed organisation would be caught by the offence of ‘entering or remaining’ in an area that has been ‘designated’ as a no go zone. ¹¹ Jane Fonda famously visited North Vietnam in the early 1970s while it was in an armed conflict with US forces and many labelled her conduct treason. ¹² A proscribed zone offence would catch activists as well as terrorists and also mere associates who are not actively involved in any criminality whatsoever.

With no evidence that a returning associate of a terrorist or war criminal assisted or encouraged the perpetrator to perpetrate particular crimes, I cannot see any offence that might apply other than outraging public decency. It would be remiss to assume that public decency is only about proscribing indecent conduct of a sexual nature. ¹³ Outraging public decency is a common law offence that is punishable by unlimited imprisonment and/or an unlimited fine. ¹⁴ I shall try to show below it could catch the conduct of Shamima Begum. Hate speech is inherently indecent, but as a general rule should be dealt with through narrowly tailored hate crimes. We tread on very dangerous ground when we start enacting offences with long sentences for what are not much more than association crimes, because association without assistance or encouragement ought not carry a life sentence. It is better to have a narrowly tailored crime that labels the wrong fairly, but the current problem is one of evidence, not one of substantive law. It would be unjust to cover for a lack of evidence by criminalising betrayal per se.

It Is Time to Abandon the Feudal Concept of Treason

The offence of treason has been with us since the time of the Anglo-Saxons. ¹⁵ This ancient offence is vague and almost useless as an offence in the 21st century. It was never used on the Irish Republican Army (IRA) and was last used in 1946. ¹⁶ The IRA was generally caught by other run-of-the-mill criminal law offences, ¹⁷ because the Prevention of Terrorism Acts in force between 1974 and 1989 were not as comprehensive as those that followed. More recently, a plethora of terrorism laws have been enacted to deal with attacks against Britain and its people. ¹⁸

Section 2 of the Treason Act 1351 provides:

…When a Man doth 2 compass or imagine the Death of our Lord the King, or of our Lady his Queen or of their eldest Son and Heir; or if a Man do violate the King’s Companion, or the King’s eldest Daughter unmarried, or the Wife the King’s eldest Son and Heir; or if a Man do levy War against our Lord the King in his Realm, or be adherent to the King’s Enemies in his Realm, giving to them Aid and Comfort in the Realm, or else-where, and thereof be probably attainted of open Deed by the People of their Condition…

Section 3 of the Treason Felony Act 1848 and s 2 of Treason Act 1842 focus on the monarchy as much as it does on attacks against Britain as a nation. The old Treason Acts were wholly inadequate for tackling the modern problem of terrorism. The only ingredient of the old offences that had any relevance to protecting Britain as a nation was the interdiction against ‘levying war’. Politicians, royals and other leaders come and go without having any real impact on Britain as a nation, but a war against Britain would have a big impact. A modern interpretation of these old laws would be that a person is not to (unjustifiably) levy war against Britain or help or incite others to do so or prepare to do so. Nonetheless, this harm is better covered for in the plethora of enactments proscribing terrorism.

I find the arguments put forward in the Policy Exchange report for restoring treason as an offence less than convincing. ²¹ The old law of treason was aimed at not only punishing those who violated trust but also those who challenged authority and the existing class-based social structure. The common law offence was codified in the Treason Act 1351. Under that Act, there was high treason and petit treason. Petit treason provides a good example for conceptualising the special feature of ‘trust’. Petit treason was an aggravated form of murder. It consisted of

a wife killing her husband; ²²

Lambarde wrote:

We come now to manslaughter upon premeditated malice, whether it be executed upon others, or upon the partly self. That which is generally committed upon any other, between whom and the fear, there is no special elegance (or sovereignty) is now called murder, and the other petit treason. ²⁵

Ekins et al. (in their Policy Exchange report) argue that betrayal of trust or allegiance in itself is a grave wrong that should carry great punishment. They even propose an offence of aiding and helping and recommend a life sentence. ²⁸ I shall try to demonstrate below that existing offences are better structured to allow for fair labelling. Ekins et al. seem to be oblivious to inchoate offences such as those found in the Serious Crime Act 2007. The bare act of betrayal without any consummated attacks or attempted attacks or complicity in the attacks of others hardly warrants restoring treason-type offences. Is mere betrayal of one’s nation by marrying militants and war criminals worth a life sentence? ²⁹ Advocates of criminalising betrayal in itself have not thus far provided a normative account of its wrongness or how punishment might be calibrated in betrayal cases. I do not have space here to do all the normative heavy lifting for them, but I will try to do enough to demonstrate the limits of betrayal as a normative justification for long jail sentences.

Betrayal is a thick concept that incorporates both evaluation and description and thus is ‘action-guiding’ simpliciter, because it provides reasons for action. ³⁰ In this sense, betray as a concept has a greater normative dimension than thin concepts like good, wrong and ought. Thin evaluative concepts are not substantially descriptive. Arguably, betrayal being a thick concept would in itself give a virtuous person guiding reasons for not betraying others. ³¹ The virtuous person would use betrayal to evaluate negatively acts that normally describe it. The virtuous person’s reason for not betraying is that betrayal is wrongful and is at least harmful to the extent it could cause psychological distress to the victim.

Suppose Betty is Jane’s best friend and while visiting Betty’s house she steals her pearl necklace. That ϕing is wrong is sufficient reason to justify her not ϕing. If Betty has a reason not to ϕ, then she has a pro-tanto reason to refrain. ³² There may be a reason for Betty ϕing. Suppose Betty is a doctor who prescribes the conceptive pill to her best friend’s 16-year-old daughter. Suppose also that she knows her best friend would not approve and would want to know that her daughter is having an intimate relationship, because Jane wants her daughter to stay away from men and study for her A-Levels. Betty has a pro-tanto reason for ϕing (patient confidentiality) but also has a reason against ϕing. Betty has a pro-tanto reason to reveal what she knows (since she also knows her best friend does not want her daughter having intimate relations) and a different pro-tanto reason not to reveal it (patient confidentiality). If it is pro-tanto wrong to ϕ, then it is also wrong to try to ϕ. However, is it also pro-tanto wrong to prepare for ϕ? Preparation with an intention to harm or facilitate harm-doing without justification (the absence of a justification is a pro-tanto reason against ϕing) means it is wrong to prepare to ϕ.

Suppose Billy (who does not know Jane) burglarises Jane’s house and takes the pearl necklace. Is Billy’s trespass and violation of Jane’s private and secure place less wrong than Betty stealing as a non-trespasser, but as someone who had gained access through trust? Many people have been left frightened after a burglary and have been forced to take preventative steps to prevent future burglaries. There may be a pro-tanto reason for Billy ϕing. The fact that Billy is stranded in the mountains and needs to break into a cabin to avoid hypothermia might be a reason for ϕing. There is no pro-tanto reason for Billy to steal the necklace, he cannot eat it or shelter in it to prevent him from suffering hypothermia. Normative reasons for ϕing are justifying reasons, but Billy had no justifying reason to ϕ. If Billy’ pro-tanto reason for ϕing is undefeated, it would be right ceteris paribus for Billy to ϕ. In the previous example, patient confidentiality would defeat the moral obligation to be frank with a close friend.

Suppose Betty and Billy pickpocket Jane while she is in a public place. In this case, we only have a violation of trust—there is no trespass into Jane’s private dwelling. While context would matter, generally a trust violation plus theft is less harmful than trespass into a private dwelling plus theft. A trespass into a private house is harmful whether the burglar finds anything to steal or not. The trust violation does add some dimension, but not enough to make theft a more serious crime than burglary. If the police were called, her friend would merely be charged with theft. Per contra, trespass into a private dwelling does make it a more serious crime as it is not only property that is lost, but a sense of security in one’s own home. ³³ The reader will see harm and culpability creeping more and more into the normative reason for not ϕing. What work is left for betrayal, if it is betrayal + harm + culpability that achieves the good-making value of criminalising the conduct?

Jane might also be harmed by the loss of a friend when she discovers the betrayal, but she has not lost a real friend so her distress should be ephemeral. ³⁴ Not all betrayals can be the business of the criminal law, since we need a certain harm threshold to prevent all moral wrongs being criminalised. Betrayal comes in so many degrees as do many thick concepts. ³⁵ The brain drain has caused greater harm in many countries in the past than a few lone citizens being led astray by a terrorist organisation. ³⁶ If you are trained up as a doctor at a great cost to your struggling country, surely it is a betrayal to leave to make a personal gain in a rich country—without repaying the cost of your education. ³⁷

Betrayal gradates depending on the closeness of the relationship and the gravity of the betrayal. There is certainly a normative reason not to betray: the normative reason is that it achieves the good-making value of not betraying. ³⁸ A person might feel very betrayed should her best friend have an affair with her boyfriend, but less betrayed if a colleague (who she knew well, but was not close friends with) had the affair with her boyfriend and, even less betrayed if it was a neighbour who she had only met twice before. The core wrong is her boyfriend’s betrayal, not the betrayal from those who he cheated with. A problem in some of these terrorism cases is that many of the suspects are not regarded as equal citizens (since their citizenship is revocable at the minister’s discretion) and thus that has to weigh on the quality of the normative relationship they have with Britain as a nation. ³⁹ Is your betrayal as grave if you do not have an inalienable right to citizenship?

However, the normative distinction between trivial and serious betrayal is determined by the wrongful harm criteria. ⁴⁰ Criminalisation and a long prison sentence like those given for terrorism offences requires harm to others rather than betrayal simpliciter. What provides the normative case for criminalisation is wrongful harm. Betrayal might be a wrong, but it does not carry much normative weight for it does not help us to determine how to punish an act of terrorism. Suppose Citizen T1 activates a small bomb in the British museum causing actual bodily harm to 2 people. Now suppose non-citizen, T2 from the USA (while studying on a student visa at a UK university) activates a bomb in the Natural History Museum causing actual bodily harm to two people. In both cases, assume that the bombers were motivated by some recognised terrorist cause. While both are likely to receive life sentences, should T2 be eligible for parole (early release) after a shorter fixed period than T1 simply because T1 is a British citizen? TI and T2 actions’ wrong-making features are that they wantonly harmed their fellow humans. The blameworthiness is not determined by the harmfulness of the action, but from T1 and T2 understanding themselves to be doing wrong in performing their action. The action they understood themselves to be doing was one that risked harm to others and had the potential to even cause a loss of life. Punishment has to be guided by the consequences or potential consequence of what they were intending. I can see no normative justification for any sentence discount or crime labelling distinction between T1’s conduct and T2’s. T2 has caused and equal amount of harm and acted with almost identical culpability. It is true that the fact that T1 acted against her own country means she betrayed it, but is not the wrongness of this sort of unjustified attack a betrayal of humanity simpliciter? London is an international city and Britain now has around 40 million visitors per year. An attack on Britain is an attack on the sort of liberal values it promotes and not necessarily against it as a nation.

Betrayal is vacuous if not measured by the closeness of the relation of trust and the potential harmfulness of the betrayal. It is harm and culpability that provides the normative justification for labelling this wrong as a crime and for determining how to punish it. Betrayal of trust has to be more than a thought ⁴¹ or some act of association, it has to risk harmful consequences. Mere betrayal as a moral wrong is not a criminal wrong; it has to pass a wrongful harm constraint. ⁴² It also has to be subject to a proportionate punishment constraint. ⁴³ It is doubtful that stringent normative reasons can be given for claiming that permanent residence and citizenship gives rise to any special duties, ⁴⁴ even if it could be established, failing to honour duties of good citizenship should result in criminalisation when it causes or risks causing wrongful harm to the state.

A visitor to London has the same moral duty as a citizen not to wrongfully harm her fellow human beings. Fletcher ⁴⁵ rightly points out that citizenship was a vexed question in Joyce v DPP, ⁴⁶ the last treason case to be tried in Britain. Joyce’s parents were Irish and Joyce himself having been born in America was an American citizen. Joyce’s mother had been born in England, but his social ties to Britain were tenuous. We live in a plural society where loyalties are far more fluid than they were in the early part of the 20th century, but everyone has an equal obligation to obey the law and not to harm their fellow humans. That obligation does not vary depending on a person’s citizenship.

A dual national is likely to feel equal loyalty to more than one country even if the two different countries do not have similar social values. Even where there is dual citizenship, it simply means the dual citizen owes the same duty to each country, unless they end up in a situation where those countries are at war with each other. If that occurred, then the dual citizen could remain neutral until the war passed, or she could choose to renounce one of her citizenships. Ekins et al. argue the problem is one of betrayal. ⁴⁷ They argue that the wrongness of aiding attacks on British troops serving in armed conflicts is that it betrays the loyalty those aiders owe to Britain. ⁴⁸ Substantially, Ekins et al.’s argument that citizenship makes a moral difference, even under the Universal Declaration of Human Rights, and because betrayal of national allegiance is a violation of the trust between citizens upon which many social goods depend is with merit. However, British political and moral values are global values that are not unique to Britain. For an example of an organisation that promotes a political philosophy that has no connection to national loyalties, we only need look at the mission statement of the Office of the United Nations High Commissioner for Human Rights, which ‘is to work for the protection of all human rights for all people; to help empower people to realize their rights; and to assist those responsible for upholding such rights in ensuring that they are implemented’.

The point here is that the values that we are trying to protect are universal values that are held by most advanced countries with sufficient wealth and organisation to promote such values. These values are equally shared by most citizens and non-citizens communally situated in Britain at any given time. The political values and social norms that are prevalent in Britain are prevalent in most countries in the EU and are intersubjectively endorsed by the populations of every EU member state. What is being betrayed is not allegiance to Britain, but allegiance to those universal values promoted by the United Nations, among other players, that we expect our fellow humans to adhere. There is merit in Ekins et al.’s argument that betrayal of national allegiance is a violation of the trust between citizens upon which many social goods depend, but betrayal on its own is vacuous. This trust between citizens and the value of national allegiance points are important, but not sufficiently measurable to match the tangible harm caused by acts of terrorism. It is a scalar variable. Harm and culpability are the yardsticks for measuring the gravity of the wrong. Harm is hardly a discrete variable, but consequences can provide a level of fixity. ⁴⁹ Revenge pornography involves betrayal and can have harmful consequences for the victim. A British citizen bombing a public house and killing 20 fellow citizens involves betrayal and has consequences for the victims, but the consequences are much more harmful than those caused by revenge pornography. We can use the harm to label the crimes differently and to determine a proportionate punishment for each.

The statistics from 11 September 2001 to 31 March 2016 show there were 54 deaths as a result of terrorism in England, ⁵⁰ but there was not a single case that was treated as treason. The last treason conviction was in 1946. Advanced nations do not need treason offences to protect their political community and common social bond. Vague treason offences could chill free speech, freedom of movement and be misused. Fletcher expounds:

[T]he surge of patriotism in the United States has expressed itself in the apparent decline of multiculturalism.…. Nations secure in their identity tend to abandon the use of the feudal crime of treason. The new post-Communist states of Eastern Europe readily invoke treason charges…. Insecure states are more likely to sense betrayal and to invoke criminal sanctions as a way of demonstrating their supremacy over threats from within. More secure states, such as the United States, might find that they can live quite well without the crime of treason.…. Further, as the Lindh case illustrated, the government has a whole array of other offenses at its disposal, all of which are easier to prove in court than is treason. ⁵¹

The concept of betrayal cannot do the normative work that Ekins et al. have in mind and this is perhaps why they revert back to the wrongful harm criteria every time they mention betrayal justifying lengthy prison sentences and warranting a new treason offence. When they call for hefty sentences for terrorism offences, they point to the harmfulness of the given offence rather than to betrayal simpliciter. Ekins et al. write ⁵⁴

Making war on one’s country or aiding others in attacking it is a grave breach of this duty of allegiance.

The duty of non-betrayal is a narrow one and is breached only by aiding the enemies of our country or by attempting violent overthrow of the Government.…The duty of non-betrayal is breached by acting to aid our enemies…(Emphasis added)

We have to keep in mind that there is a very wide range of preparatory acts as well as consummated acts that are now covered by terrorist offences including membership of proscribed organisations, ⁵⁸ supporting terrorism, ⁵⁹ wearing the uniform of a terrorist organisation, ⁶⁰ encouraging terrorism, ⁶¹ disseminating terrorist publications, ⁶² providing weapons training, ⁶³ attendance at a place used for terrorist training, ⁶⁴ making and possessing devices or materials ‘with the intention of using the device or material in the course of or in connection with the commission or preparation of an act of terrorism’, ⁶⁵ misusing of devices or materials and misusing and damaging of facilities ‘in connection with the commission of an act of terrorism or for the purposes of terrorism’, ⁶⁶ and making terrorists threats. ⁶⁷ Thankfully, there have been very few consummated terrorist attacks on British soil in the last 20 years.

The gravamen of acts of war or terrorism and assistance or encouragement of such acts is not betrayal. Likewise, when a person conspires to do such crimes or does acts preparatory to such crimes, the wrong is the unjustified harm she intends to facilitate or bring about. Non-citizens doing such acts are no less culpable and no less harmful. Betrayal is a minor aggravating feature that should be left to the sentencing judge. Historically, treason never played a significant role in maintaining the bonds of citizenship. It was primarily used to maintain the feudal order in a time that was very different to our own. Fletcher’s argument that a robust liberal democracy does not need to police varying acts of betrayal is very persuasive. When the betrayal crosses the harm threshold including risk of harm to others, there are a plethora of terrorism offences to tackle it.

Proportionate Punishment, Fair Labelling and Remote Harms

I would like to just start by noting that I am not going to deal with the punitive effect of measures that are not to do with sentences imposed by a court for criminal conduct. For example, it would be disproportionate punishment to remove the citizenship of returning ISIS brides. The view taken in this article is that a person should never lose citizenship once it has been granted. A person should not lose their citizenship simply for associating with terrorists. It would be racist to allow those with a long family tree to murder and rape in Britain without loss of citizenship as a form of punishment. Murder is more serious than being an ISIS bride, so why not deport every murderer including those whose ancestry goes back centuries in this country. Trying to find some technicality for denying her citizenship to cater to the moral panic about terrorism is a compromise of the very values and rights we are upset about ISIS bride shunning.

Putting that view aside, even those who deem citizenship removal fair, would surely agree that it should not be done without due process. Even supporters of s 40 of the British Nationality Act 1981 would surely agree that a person should at least be convicted of a serious crime before arbitrarily being deprived of her citizenship. They might also agree that a Home Secretary should not be allowed to deny a person citizenship on a political whim. Such as decision should be a legal decision for the courts with all the normal checks and balances applying. We have to adhere to separation of powers. We need proper checks and balances, because such powers can be misused against others in less emotive cases.

While the loss of citizenship is punitive regardless of the motives for it, that is not my concern here. I want to try to answer the claim that we need a new treason offence because the existing terrorism offences do not allow for sufficient punishment. Ekins et al. passionately argue that Choudry should have been given a life sentence for the remote act, not of inciting terrorism, but merely inciting support for a group he believed would engage terrorism. Ekins’ report states: ⁶⁸

The sentence of five and a half years imposed on Anjem Choudary for this crime was manifestly inadequate; even a sentence of 10 years’ imprisonment, which is the statutory maximum, would have been inadequate. Choudary betrayed his country, aiding its enemies by encouraging others to take up arms with them and thereby undermining the trust that ought to hold amongst citizens.…Choudary was a mature, calculating offender—his crime deserved a life sentence.

The problem for the proponents of proportionate punishment is resolving what is proportionate. Deterrence can only be achieved in proportion with the punishment that is deserved. Incapacitation is different; because a particularly dangerous and mentally ill offender might be so dangerous that the proportionate punishment constraint is overridden by the incapacitation justification. However, the incapacitation justification for a disproportionate sentence should not be invoked in standard terrorism cases. It should be reserved for cases where it is clear that the offender is mentally ill, ⁷¹ unpredictable and extremely dangerous. Whole life orders are rare and primarily have been issued for serial killers ⁷² and for consummated acts of terrorism involving mass murder. ⁷³ A more complex moral puzzle that is the subject of continuing socialistic debate is how to measure harm for harm. How is a life sentence proportionate to the harm in murder? How is an 8-year sentence proportionate to the harm in rape? These normative questions are beyond the scope of this article. What we do have are rough proxies of what is a proportionate response to various harms and I will try to work from those.

Future dangerousness is a real concern, but it is near impossible to prognosticate how dangerous an offender will be in the future. ⁷⁴ Punishing people for what they might do is unjust: it cannot be supported with stringent normative justifications. In R v Khan, ⁷⁵ Hughes, L.J. (as he then was) upholding a life sentence for a terrorist, said:

It is enough to say that this case did satisfy the well-known test for the imposition of a life sentence,…This defendant had committed very grave offences and he represented a risk of very grave harm for a period which could not reliably be determined.

Mere acts of preparing for and planning for terrorism have attracted life sentences. In a recent case, a man was given a life sentence for preparing to perpetrate a terrorist attack. He had obtained books on bomb-making, had purchased the relevant chemicals and had mapped out and visited a potential location for an attack on more than three occasions. ⁷⁸ This was not a case of merely conspiring or plotting; ⁷⁹ he had taken substantial preparatory steps. However, he had not attempted any act of terrorism. How do we deter attempts and consummated terrorism if we use a life sentence for mere preparation? There is some evidence that rehabilitation ⁸⁰ can work, and it is reasonable to postulate that it would be most effective on very young people especially those who played a more passive role. ⁸¹ Restorative justice might also help where there are victims, but it involves a host of challenges. ⁸² Those accepting rehabilitation and restorative justice should obtain substantial sentence discounts when there is strong evidence suggesting that it is having a positive effect.

There are many terrorism offences of preparation that reach such remote wrongs one wonders if some of the life sentences are appropriate. The operation of the law is pushed back in the realm of what (from the point of view of the ultimate criminal intent and ultimate harmful action) is not much more than an overt manifestation of a ‘thought crime’. Criminalising attempts with proportionate punishment for the harm attempted is normatively justifiable, ⁸³ but one has to question life sentences with minimum terms of 20– 40 years for preparation that falls well short of an actual attempt. ⁸⁴ The normative line between inchoate offences and mere preparation is blurred, since they seem to be labelled equally serious. One is more harmful than the other since a complete attempt shows that the offender did not change his or her mind. In such a case, the resolution to perpetrate terrorism has been put in action and its failure rests on the offender being caught before he or she could consummate what she or he was attempting. It is only chance that prevents him or her from consummating what he or she was intending to perpetrate. Some take the view that the consequences do not matter, since the degree of culpability is no different than if the offender had succeeded. ⁸⁵ That might apply if a person was intending to perpetrate the act him or herself but has less weight where he or she limits his or her role to assisting or encouraging another to merely prepare for an act of terrorism.

If we are to punish preparation, conspiracy ⁸⁶ and attempts as harsh as consummated acts of terrorism, we are leaving little incentive for wrongdoers to rethink their plans and not take them past the talk stage. Nonetheless, the courts have tried to calibrate sentences with culpability, harmfulness and remoteness. In R v Kahar, Lord Thomas, C.J., said: ⁸⁷

In accordance with the principles that we have identified, the levels which we set out are differentiated by two principal factors: (i) the culpability of the offender principally by reference to proximity to carrying out the intended act(s) measured by reference to a wide range of circumstances including commitment to carry out the intended act(s), and (ii) the harm which might have been caused measured in terms of the impact of the intended act (or series of acts) or the intended number of acts, including not only the direct impact intended on the immediate victims, but also the wider intended impact on the public in general if the act had been successful.

The Evidential Gap: The Outraging Public Decency Plug

The reason I introduce the offence of outraging public decency into the discussion is twofold. (1) It highlights that there may be a gap in the law. (2) It raises the question whether the gap is serious enough to plug when we have to resort to offences like outraging public decency. Resorting to such an offence should be a warning in itself about the necessity for criminalisation. Nonetheless, there may be a need for some sort of crime like this to catch those who outrage the British public by associating with terrorists who are in armed conflicts with the British military. Merely causing outrage ought not result in too much prison time. A chap called Smith was given a sentence of 18 months’ imprisonment for two offences of outraging public decency by masturbating in public places. ⁹² In another case, a man was given a sentence of 4 months’ imprisonment for one offence of exposing himself in the back of his car and simulating acts of self-abuse. This took place in circumstances where only a couple of witnesses seemed to see it. Nonetheless, the trial judge said: ‘It was very serious and deeply unsettling’. ⁹³ If a member or a few members of the public find that deeply unsettling, then I suspect we could say the same of the conduct of leaving a liberal democracy to become an ISIS bride. Her offensive and disgusting comments in the media might also be caught. ⁹⁴

Only a few people saw Smith, whereas Shamima Begum conduct of running away to live with a terrorist ⁹⁵ and her subsequent media comments saying beheadings were okay and that the Manchester terrorist attack was justified outraged a nation. ⁹⁶ People also fear that she might be a danger upon returning but that can hardly justify criminalisation since there is no evidence of any crime from her other than some hate speech and the bare act of marrying an ISIS member. Shamima Begum was well aware of the fact that there was no evidence of her having participated in any criminality. When interviewed by the media she said: ‘They don’t have any evidence against me doing anything dangerous. When I went to Syria I was just a housewife for four years, I just stayed at home, took care of my husband, took care of my kids’. ⁹⁷ The bare act of going to marry an ISIS solider would not count as hate speech or conduct that would activate the Public Order Act 1986. If Shamima Begum had used electronic communications to spread hatred, then that could have been dealt with as a hate crime.

Let me briefly outline the offence of outraging public decency. Some of the older cases focus more on lewdness, but the offence has a much wider reach than lewdness. ⁹⁸ ‘Indecency is not confined to sexual indecency: indeed it is difficult to find any limit short of saying that it includes anything which an ordinary decent man or woman would find to be shocking, disgusting and revolting’. ⁹⁹ It has been applied to a range of outrageous and offensive conduct including hate speech, ¹⁰⁰ inciting terrorism to further a political cause, ¹⁰¹ urinating on a dying person, ¹⁰² displaying photos of a person with sores ¹⁰³ and displaying earrings made from human foetuses in art gallery. ¹⁰⁴ It covers indecent conduct and speech of any kind as long as it is potentially viewable by two members of the public. ¹⁰⁵ It does not matter if the outrageous conduct is done in a private or public place, but it must be able to be seen or heard by members of the public. ¹⁰⁶ Hate speech from a private radio station is transmitted into the public arena. A couple copulating on a balcony in public view reach members of the public with their amorous display. ¹⁰⁷

The public nature of the act will rarely raise any controversy, but the second prong of the offence concerning the nature of the act will. ¹⁰⁸ The test is to show that the conduct is such that it has the potential ¹⁰⁹ to be deemed as outrageously indecent by ordinary members of society communally situated in contemporary Britain. It should be so indecent that it can be said, when objectively judged, to have the potential to cause outrage amongst tolerant, robust members of society. We are in a plural society where people place and extremely high value on freedom of expression and on the notion that the criminal law and the courts should be used as a last resort to constrain non-harmful conduct, even if it has some potential to lead others to make harmful decisions. In this sense, the ‘outraging’ prong has a limiting effect on the scope of the offence. While it is a question of fact for a jury to decide whether the conduct was of ‘such a character that it outrages minimum standards of public decency as judged by the jury in contemporary society’, ¹¹⁰ a judge could remove the matter from the jury if the supporting evidence was such that no reasonable jury could draw such an inference.

The mental element of the offence is made out as long as the defendant intentionally did the act which outrages public decency. Automatism and duress would apply as defences. It is unnecessary to prove that the defendant acted with the ulterior aim of outraging public decency. There is no need even to prove that she was reckless as to such a consequence. ¹¹¹ In the case of Shamima Begum no issue as to mens rea is at issue because her actions of running away to marry an ISIS militant and more recently making comments in a public interview such that the Manchester terrorist attack was justified and that she had no problem with beheadings were intentional. Are her comments indecent to the extent that they have the potential to cause public outrage? Judging from the media reports they have caused public outrage. Arguably, the comments are of such a character that they would outrage people communally situated in contemporary Britain. It is also arguable that a jury could infer as much when measuring such conduct against ‘minimum standards of public decency…in contemporary society’. ¹¹²

Outraging public decency seems to encapsulate what she actually did. Her act caused outrage but did not lead to any tangible harm. We cannot prove that she engaged in terrorism or war crimes. Furthermore, there is no evidence that she assisted or encouraged her husband or her other associates or that she engaged in preparatory crimes supporting terrorism or attempted to engage in terrorism or war crimes or attempted to assist or encourages others to do so. ¹¹³ An important caveat against invoking outraging public decency to police speech that is not otherwise caught by narrowly tailored hate speech crimes surely is the Hong Kong case where fanciful comments about wishing someone to attack the government offices were criminalised under this all-embracing offence. ¹¹⁴ These sorts of offences surely are a litmus test for prosecutors, since any prosecutor relying on them should consider carefully whether it is in the public interest to pursue such a charge. In the Hong Kong case, ¹¹⁵ Chan Yau Hei’s comments were terse and fanciful so it is hardly surprising he was not changed with an incitement offence. He ought not have been convicted of outraging public decency either—the facts simply were not strong enough.

Conclusion

In this essay, I have attempted to demonstrate (1) betrayal simpliciter provides insufficient normative justifications for creating a criminal offence of treason. (2) Normative justifications for criminalising terrorism and terrorism-related activity rest on wrongful harm to others. (3) The current law covering terrorism and terrorism-related activity and its sentencing regime leaves no gap for a treason-type offence. (4) Sentences for terrorism are not inadequate, if anything, they are too severe. (5) The problem of returning ISIS brides is one that does not require a criminal law response, but in extreme cases, the offence of outraging public decency might apply.

Moreover, I have tried to demonstrate that a populist panic about terrorism risks taking liberal states closer to being police states where passports are stripped from people on a guess about what they might do. ¹¹⁶ Citizenship is revocable for a class of citizens who are deemed not equal British citizens because they lack a sufficiently long family tree to avoid technically having another potential citizenship right imputed to them. Dozens of British citizens have had their citizenship revoked and some have never been convicted of an offence. Many more have had their passports cancelled to stop them from travelling, not based on their past wrongdoing but on a guess about what they might do.

The law is reaching back further and further and is imposing very long sentences for mere preparation and plotting; preparation and plotting that might be more fanciful than real. If our cardinal principles of justice were abandoned for all other crimes, then there would be a public outcry. However, when it comes to terrorism, we are happy to do away with due process and proportionate punishment. I might conclude by making the observation that terrorism is a relatively rare crime, but it has received more of Parliament’s time and efforts than many other areas of the criminal law that are in desperate need of reform. A disproportionate amount of resources have been focused on an area that has been well covered since the enactments of the Terrorism Act 2000 and Terrorism Act 2006. Adding more and more to these very expansive pieces of legislation is overkill. More than half of all crime is perpetrated through cyber-means and yet this area of the law is lagging behind while the media keeps Parliament’s attention on terrorism.