How Syrian conflict is putting British terrorism law to the test

The war at home: Anti-Assad protestors in London. Lewis Whyld/PA

The arrests of people travelling to or returning from the Syrian conflict have been widely reported over recent weeks in the British media. Sir Peter Fahy, chief constable of Greater Manchester Police, who leads the Association of Chief Police Officer’s Prevent strategy on counter-terrorism, told the BBC that there was “huge concern” that Britons arriving back after fighting in Syria posed a threat to the UK, since they could have received terrorist training while abroad. In January, 16 people were arrested on suspicion of terrorism offences after travelling between Syria and the UK. The extent to which these people pose a danger upon their return has been a hotly debated problem – as evidenced by the legal wrangling over what to do with them.

Many press reports focus on young men and boys training with al-Qaeda-linked groups. Obviously if a young person from the UK arrived in Syria with no experience with guns (which would of course probably be the case) intending to fight with an opposition group, that group would be likely to train them, even if only minimally, since otherwise they would be of no value as fighters. (Such minimal training, which would put the recipient’s life at greater risk than their targets’, is not likely to be of domestic concern.)

However, posing young men with machine guns for photographs has propaganda value for the group in question, whether or not those depicted knew how to use their weapons. Social media such as Facebook or Tumblr have been widely exploited by opposition groups in Syria, as reported by Channel 4, but the photographs posted should not necessarily be taken at face value.

If prosecutions follow these reports, they will probably be premised on the offence of being present at a place used for training, as articulated by the Terrorism Act 2006 section 8. A new offence of “terrorist training”, carrying a maximum penalty of 10 years’ imprisonment, was introduced by that Act to be added to the existing offence under section 54 of the Terrorism Act 2000 (TA).

Under section 54, those who give or receive training in the making or use of weapons or explosives, or recruit persons for this purpose, are liable to ten years in prison. Section 8, by contrast, prohibits anyone from being at a place where weapons training is going on (whether in the UK or abroad), provided the person knew or believed that training was happening. Or if he did not know, he could still commit the offence if a reasonable person would have known. It must also be proved that the training was provided for purposes connected with “acts of terrorism”. This offence greatly broadens the area of liability in relation to training, in that it makes it an offence just to be in attendance at any place in the world where such instruction is taking place.

Section 6 of the 2006 Act, meanwhile, prohibits anyone from training others in terrorist activities, or from receiving training, and also carries a maximum penalty of 10 years’ imprisonment. So if a person received such training in Syria –- if that could be proved -– they would commit two separate offences. “Acts of terrorism” are acts covered by section 1 of the 2000 Act.

The law was expanded in this way in 2006 because it would obviously often be hard to prove, to the criminal standard of evidence, that the person in question had actually received training, or even that training was actually occurring. Physical presence at such training, or apparent training, still has to be demonstrated to that standard, but that places less of a burden on the prosecution.

So under section 8, if a person travelled to Syria and was at some point physically present at a place where a group whose actions fall within the definition of terrorism in section 1, he would have committed an offence whether or not he was personally trained, so long as he was aware (or should have been) that training was occurring. Liability could also arise if he believed that such training was occurring, even if in fact it was not –- or if it could not be proved that it was.

One man’s terrorist…

The many groups among the opposition to the Assad government are hugely varied. Islamic State in Iraq and the Levant (ISIS) is viewed as the most extreme and brutal, disowned even by al-Qaeda; most are more moderate, such as the Islamic Front. However, it is probable that the actions of most or all of them would fall under section 1 if they are prepared to use or threaten “serious” violence to further a political or religious cause, and if in doing so they seek to intimidate others.

The question of whether some of the groups could be viewed as “freedom fighters”, opposing a despotic dictatorship or another more extreme opposition group such as ISIS, is irrelevant under section 1. If people are identifiable in photographs from Syria posted on social media, that might aid in discharging the burden of proof, depending whether “training” was also apparent (for example, some type of organisation of fighters was indicated, and weapons were present).

The use of section 8 in this way against British travellers to Syria does not require a new interpretation of the section, but it is a novel application of the offence. Clearly, section 8 was introduced as an early intervention offence, intended to catch people who travelled to Afghanistan or Pakistan for terrorist training and then returned to the UK, possibly to engage in acts of terrorism facilitated by the training.

But section 8 is unconcerned with the intention of the person who attends a place of terrorist training. It would be irrelevant whether the person was at that place as an observer, or to offer medical aid to fighters, or with the intention of fighting for al-Qaeda outside the UK. The fact that a person intended to fight in Syria but not to engage in terrorist-related activity on return to the UK would be irrelevant to the application of section 8. But if there was little indication of an intention to engage in such activity in the UK, that could affect the decision to prosecute.

The novelty of the application of section 8 in this way lies in its use in relation to civil war in another country. The assumption behind s8 was that if a person travelled abroad for terrorist training, their intention could be assumed to be to deploy that training within the UK. The intention to participate in the Syrian conflict could disturb that assumption, although the intention of some to fight for al-Qaeda could not be disregarded by any reasonable security service upon their return.

Some of those currently caught, or about to be caught, within the legal net might pose no threat to the security of the UK; some may have supported the Syrian National Coalition, which is recognised by the UK government. Under the Prevent strategy, recognition of that support might mean some of those technically within section 8 are subjected to de-radicalisation programmes instead of prosecution.

We must be cautious in drawing an analogy between the position of such people – depending on their affiliation – and that of fighters returning from the Spanish Civil War, as some media commentators have done. Most of the left wing anti-fascist groups to which most UK fighters in Spain belonged were not committed to use of global terrorism, whereas there can be no doubt that some of the opposition groups in Syria closely affiliated to al-Qaeda are clearly pursuing it. For all that the legal situation of Britons returning from Syria remains fraught, this fact cannot be ignored.