Audrey Young: When terrorism goes from the hypothetical to the real thing

Scenes at Lynn Mall shortly after the terrorist knife attack on September 3. Photo / Alex Burton

OPINION:

The Justice officials helping MPs work on the counter-terrorism bill were asked to do something they don't like doing – to come up with a hypothetical example of how the new law about it might work.

They rejected a suggestion from some submitters that they should provide an illustrative example in the legislation itself, saying it would not be helpful "because of the plethora of permutations of conduct, facts, circumstances and evidence" that could play a part in deciding whether a prosecution would proceed.

It could lead to an assumption, they said, that if any of the conduct referred to in the example existed, that a prosecution would proceed and a conviction would result, they said in the departmental report on the bill which was due to be passed in Parliament on Thursday morning.

But in the end, they came up with a scenario in their report, which serves to counter barmy views from some submitters (and the odd MP) that even thinking about planning a terrorist act might become a criminal offence.

"The person planning the terrorist attack is acting alone," the scenario outlined in the report goes.

"They have not shared the plan with anyone else. Therefore, the law of conspiracy does not apply.

"Further, the planning has not advanced to the stage of attempt (which requires the conduct to be immediately or proximately connected to the offence).

"In this case the following actions of the person may constitute the planning or other preparations offence.

"The person referred to above makes enquiries as to the purchase of firearms, purchases firearms and ammunition, buys a drone, scopes out the location where a gathering of interest to the person is to occur in two weeks' time, and accesses material online about road closures in the area for the day of the gathering.

"That conduct could collectively constitute the actus reus (the physical element) of the offence.

"Evidence of joining and supporting hate groups, posting extremist material online, circulating propaganda and engaging in chats relating to harming a specific ethnic group may be sufficient to satisfy the mens rea (mental element) of the offence.

"But, as we have noted elsewhere in this report, each case is fact and circumstance specific and the decision to prosecute will be determined by the evidential strength of case as ultimately assessed by the Attorney-General (whose consent will be need to proceed with any prosecution for this offence)."

Prosecutions under the Suppression of Terrorism Act have always required the consent of the Attorney-General and still do. Photo / Mark Mitchell

The request to Justice officials for hypothetical scenarios was made before September 3, 2021.

That was the date of the terrorist knife attack on shoppers at Lynn Mall by a self-appointed member of Isis, who had downloading copious amounts of material on how to kill.

So what difference did the real-life scenario make to the actual bill? Very little because it was already well advanced. But perceptions did.

Suddenly the power of the academic arguments - including those of legal advocates – opposing a bill criminalising preparation of a terrorist attack looked like armchair chin-strokers, rather than people using their expertise to deal with the reality of dangerous ideologues with murderous intent.

The Bar Association, for example, called it "unprecedented, unwarranted and misconceived" and said it was "not convinced" that planning an act of terrorism should be treated any differently to other offending such as planning for drug offending.

After the police shot and killed the terrorist, it was revealed police had attempted to get the offender, Ahmed Aathill Mohamed Samsudeen, charged with planning and preparing a terrorist attack last year.

The law deemed planning and preparation to be a terrorist act under Section 25 ("A terrorist act is carried out if any one or more of the following occurs: planning and preparation to carry out the act, whether it is actually carried out or not…") but the judge, Justice Mathew Downs, was not convinced Parliament intended it to be.

The Crown's bid to charge the offender with preparation of a terrorist act was signed off by the Attorney-General, as required under the old and amended law.

In the year of 2002, soon after 9/11, Parliament almost certainly did intend to equate planning a terrorist act with committing a terrorist act although it was almost certainly thinking about the Al Qaeda cells in the caves of Tora Bora, rather than a lone wolf fanatic with a hunting knife in West Auckland.

If the Lynn Mall offender had been convicted of planning a terrorist act under the old law, instead of on lesser charges, he would likely still be in prison (with a sentence anywhere up to life).

On release from prison, he could have been subject to expanded Control Orders allowed for under the bill.

The question is whether the same attempt by the Crown to stop the offender but under the new law would have made any difference – the answer is possibly, but not definitely.

The law would no longer be an issue – it is now crystal clear that Parliament wants planning and preparation of a terrorist act to be an offence (with a maximum of seven year's jail instead of life being the maximum).

But a major factor in the judge's decision to reject terrorism planning would remain unchanged.

Despite all the evidence on offer including the purchase of knives and the Isis instruction manuals on murder, there was no hard evidence about the intended knife attack; it was circumstantial.

The judge last year presciently thought that an attack in broad daylight in a busy shopping centre while the defendant yelled support for Islamic State would meet the test but a silent attack in the dead of night might not.

But essentially, he was not prepared to exercise conjecture.

In the absence of an act of terrorism being committed, the requirement by judges to indulge in some conjecture over preparation will not change, no matter how much the law has changed to assist such prosecutions.