Terror watchdog says refusing police access to encrypted devices should be a crime

Jonathan Hall QC warns ministers that jailing terrorists is not ‘job done’

Lizzie Dearden
Security Correspondent
Wednesday 22 January 2020 19:30 GMT
Encryption can be used to protect entire computer disks from intruders, or provide similar protection to messages as in the case of WhatsApp, which uses so-called end-to-end encryption
Encryption can be used to protect entire computer disks from intruders, or provide similar protection to messages as in the case of WhatsApp, which uses so-called end-to-end encryption (PA)

New laws forcing potential terrorists to let police access encrypted communications should be brought in to stop investigations being “defeated”, a watchdog has suggested.

Jonathan Hall QC, the Independent Reviewer of Terrorism Legislation, said that, despite periodic calls for end-to-end encryption to be banned, the technology was “here to stay”.

Speaking in Westminster on Wednesday, he added: “Although advances in decryption are constantly being made, it is quite possible in the near future that terrorism investigations will be defeated by suspects withholding passwords, meaning that police cannot obtain access to electronic evidence of attack planning or terrorist publications.”

Mr Hall highlighted gaps in current laws that compel suspects to surrender to searches, and said parliament could consider making “a refusal to hand over encryption keys during a terrorist investigation” a criminal offence.

His speech, at a Henry Jackson Society event in the Houses of Parliament, came days after the government announced a new package of counterterrorism measures, including longer sentences for some crimes.

Mr Hall has been tasked with carrying out a review of multi-agency public protection arrangements, which are used for terrorists and other serious offenders leaving prison.

Last year, the Counter-Terrorism and Border Security Act brought in a series of new terror offences, such as entering a “designated area” abroad and viewing material online that could be useful for terror attacks.

However, Mr Hall suggested that the law could go further to criminalise other “violent extremist material”, including videos of executions and torture, in a similar way to the ban on some types of pornography.

“I think there remains a question of whether what is needed is an offence which widens the sort of material that cannot be distributed, or an offence which can be committed merely by possession,” he added, saying that journalists and human rights groups would need to be exempt.

The reviewer also sounded a warning over government plans to make terrorists spend longer in prison by increasing minimum sentences and changing release practices.

Mr Hall said that most jailed terrorism offenders are convicted of low-level offences, such as the possession or distribution of propaganda, and that sentences will “continue to be modest”.

“Discussion of making terrorists serve their full sentences should not overlook the reality that many terrorists will be released sooner or later even if they do serve their full sentence,” he added.

“Prison does not affect all individuals equally and it may well be that for some individuals imprisonment often increases their status in the network and prolongs their activism.

“It may also provide a perfectly receptive and captive audience for recruitment.”

Earlier this week, The Independent revealed that up to 800 flagged extremists are currently in British prisons – almost four times the number of terror offenders.

Government announces new counter-terrorism measures

Prison officers have warned that Islamist radicalisation is rife, and recent cases have shown that known terrorists are able to network with each other on the inside.

A man jailed over a terror plot allegedly launched a new attack with a fellow inmate at HMP Whitemoor earlier this month.

The previous day, a court heard how a man who slashed police officers with a sword outside Buckingham Palace met the Parsons Green bomber inside HMP Belmarsh and was given tips by “like-minded brothers” on avoiding conviction.

Last year, a man jailed for a violent offence had his sentence extended for distributing Isis propaganda from inside a young offenders’ institution.

Mr Hall said: “That doesn’t mean that prison is not the right remedy, but its consequences must be addressed, including, as the HMP Whitemoor attacks show, recognising that terrorism offending does not stop at the prison door and there is no automatic ‘job done’ when a terrorist is behind bars.”

The watchdog, who assesses the effectiveness and scope of terror offences in Britain, said authorities must guard against attacks by “known knowns”, such as the London Bridge attacker Usman Khan, who have previously been convicted of terror offences and are being monitored.

Mr Hall said the rate of reoffending by convicted terrorists was low, but that the figures did not account for extremist activity that is not prosecuted.

He called for authorities to check the impact of any prosecutions or interventions, especially where people suspected of plotting attacks have been charged with lower-level offences because of a lack of evidence.

“What makes an individual progress from terrorism in its broadest sense to acts of violence is poorly understood,” Mr Hall said.

“It is more palatable for an unknown to slip through the net, than for a known terrorist to return to terrorist violence – the desire to insulate from this risk all the greater.”

He also warned against the “crude categorisation” of British members of Isis who are currently being held in Syria as either male foreign fighters or female “jihadi brides”, saying that such over-simplification can result in threats being missed.

Mr Hall urged the government to treat children either born in Isis territories or taken there by their parents as victims, “whatever risk they also present”.

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