From The Annals of Bad Lawmaking

Sometimes they can’t help themselves. Politicians latch on to a word or a concept that is (often rightly) repugnant to almost everyone, and then, with great fanfare, roll out a new law supposedly desired to prevent said thing, or at least to impose tougher penalties on those people who do the Bad Thing.

He's had another idea.
He’s had another idea.

The Bad Thing in this case is training to be a terrorist (or undertaking “terrorism training” as the Guardian reports), the penalty for which is due to increase from a current maximum sentence of 14 years to a life sentence under the new proposals.

The Telegraph, who broke the story, note:

The maximum sentence for a range of terrorist offences, including weapons training, will be increased, under plans being drawn up by security officials.

Current laws allow such offenders to be jailed for 14 years. The new regime will allow judges to impose life terms.

Significantly, that would also mean extremists would be subject to additional monitoring when they are eventually released.

And as with most tinkerings to existing laws in Britain, this one is so riddled with generalisations, non sequiturs and loopholes that there is more daylight than content in the proposals. As we have also come to expect, we see the additional empowering of the police and security services to monitor and meddle in a person’s life for evermore, long after they have completed their punishment and served their time. Here are a few of the more obvious flaws, off the top of my head:

1. In the marginal case, how do you tell the difference between someone who has gone to another country and undertaken weapons training of some kind with no real intent to cause carnage back home in Britain or elsewhere, and one who has attended a bona fide “terrorism training camp”? The last time I checked, there was no formal accreditation of terrorist training institutions against which MI6 can cross-check, or formal evidence of graduation given to successful students. Certainly, we can all picture in our minds the images of masked men with guns and suicide vests running through obstacle courses, but the reality is probably somewhat less clear-cut. Who will be the final arbiter of these too-close-to-call decisions?

2. How will anyone accused of this crime ever receive a fair trial? If it is alleged by the prosecution that they have attended a terrorist training camp, it is highly likely that the evidence required to convict them will be of a secret nature, which if made public would jeopardise the foreign intelligence that Britain is collecting. Scenarios such as these tend to lead to secret trials without juries, where the life and liberty of the accused is decided by a solitary judge behind closed doors, with no public scrutiny.

3. Someone who has acquired skills which could – and only could – be used to harm the general population has yet to really commit any offence against British society or soil. Yes, the fact that a person has gone to a “dangerous” country and spent time in the company of other people holding “extremist” views may greatly increase the probability that they plan to turn knowledge into action (and so, perhaps, warrant greater monitoring of their actions by the security services), but until they actually make concrete plans to do so, arresting and imprisoning them for any length of time sits far too squarely in the category of punishing thought-crime for my liking.

4. It is entirely possible (as has been proven multiple times) to inflict massive damage and loss of life in a terrorist act without ever actually having left Britain to receive training elsewhere. It may seem remarkable that British laws and public policy are still being drafted in 2014 which do not account for the reality of the internet, but here we have just such a case. What is the real difference between a person downloading instructions to make and place a bomb from a source on the internet, and going to another country to receive that same tuition face-to-face? Why does the government seek to punish one more than the other? And how do we distinguish between someone who idly (or accidentally) downloads instructions for making a bomb with no malicious intent, and one who intends to put the knowledge to immediate use?

Why, indeed, does the government seek to do any of the things that these new measures will allow it to do?

Very little of it truly has to do with improving public safety. That is done (rightly or wrongly) mostly behind the scenes, in terms of adequately funding the security services and giving them sufficient remit to do their work. What this is about is not protecting the public, but rather being seen to be doing something. Chris Grayling, the Justice Secretary, is able to look busy and important, and taking firm action at just the time when many of what the Telegraph describes as “radicals jailed after the September 11, 2001, attacks” are approaching the end of their custodial sentences.

That is not to dismiss the real problem facing the government, which the Telegraph rightly lays out:

Security sources estimate that more than 100 British nationals have fought in Syria, backing rebel groups linked to al-Qaeda.

British nationals are also said to be involved in extremist activity in countries including Somalia and Yemen.

These are thorny problems with grave implications if they are not properly met. And in some cases, changes to the laws and sentencing guidelines may well be valid. But the current package being put forward by the government, as outlined so far in the press, appears to be fundamentally unserious. Why is the focus on criminalising the acquisition of the knowledge of terrorism rather than its practice, as manifested either by helping terrorist groups in other countries or conspiring to commit terrorism at home in Britain? These offences would not only be much easier to recognise and prove in court, but also take us away from the path toward thought-crime down which legislation such as that proposed inevitably leads us.

Last-minute lawmaking on the fly. Draconian new powers that are justified using unassailably valid examples, but which could equally be applied to much less clear-cut cases. Government desperate to be seen to be taking bold, decisive action rather than calmly contemplating the best course of action.

This is becoming very familiar.

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