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As police begin to arrest and prosecute those involved in the far-right, racist, Islamophobic riots that have shaken the UK, some are calling for them to face terrorism charges.
Essentially, terrorism is illegitimate political violence. And riots are, by definition, violent. It is also clear that these riots are politically motivated. So should they be prosecuted as terrorism? Doing so could send a strong message of condemnation about fascism, but prosecuting people for terrorism is complex. And it isn’t always the best option.
At the outset, it’s important to note there is no specific crime called “terrorism” in UK law. Instead, there are lots of different criminal offences that use the definition of terrorism as their basis.
The breadth of the 237-word definition inscribed in UK law goes far beyond what may immediately come to mind when we think of terrorism. Certainly, serious violence against people and serious damage to property is captured. But the definition also includes actions which can endanger a person’s life or create a serious risk to public safety, as well as actions designed to seriously interfere with an electronic system.
An important distinction between terrorism and other crimes is how motive comes into the calculation. Ordinarily, motive – the reason why a person committed the offence – is irrelevant in a criminal trial. It does not matter if you robbed a bank to enrich yourself or to give it all away to the poor; what matters is that you robbed the bank.
However, when it comes to terrorism, motive is key. Under the UK definition, a terrorist act or threat must be “designed to influence the government or an international governmental organisation, or to intimidate the public or a section of the public”, and be “made for the purpose of advancing a political, religious, racial or ideological cause”. It is this motive requirement that pushes an action into the “terrorist” category.
Motive can be difficult to prove, though. So, ordinary offences rather than specific terrorist offences may be preferred by the prosecution, simply for pragmatic reasons.
Indeed, when a terrorist attack causes harm, an individual will likely be charged with an “ordinary” offence. For example, the two killers of soldier Lee Rigby were convicted of murder, not a terrorism offence, even though they’d made statements to suggest the crime was politically motivated.
The “terrorist” nature of the offence may then be taken into account at the sentencing stage, leading to a longer prison term.
In relation to the far-right riots, it’s likely that ordinary offences will be used to prosecute the perpetrators of violence. The state has at its disposal a wide range of public order and other offences regarding criminal damage, which it could use here without reaching for terrorist offences.
Some terrorist offences seek to disrupt the actions of specific unlawful groups. However, for these offences to be relevant, the group must be declared unlawful by the home secretary. So, these offences are not helpful when the political violence is being caused by a loose network of individuals or a group that has not yet been proscribed – and it is unlikely they will be used to prosecute any of the rioters. That said, there is evidence that some of the riots in Northern Ireland have been orchestrated by loyalist paramilitaries.
Where terrorist offences may be relevant is in relation to halting the spread of far-right ideology online – for example, the offence of “encouragement of terrorism”. But again, the prosecutorial hurdles to cross for this offence are high. It may be easier for officials to use other public order offences such as stirring up racial hatred.
Symbolic power
These practical reasons are just one factor to be considered by police and the Crown Prosecution Service when deciding what charges to bring against the rioters. The term “terrorism” has a powerful delegitimising effect. It sends the signal that this particular type of political violence is to be condemned.
Nevertheless, those calling for the term terrorism to be used against the far-right rioters need to be careful. Terrorism is a particularly slippery concept that is difficult to control. Its use in one situation against a political cause or method the majority of people disagree with, could lead to it seeping into other areas of political life and being used against causes that they do agree with.
Nor does the definition of terrorism only apply to criminal offences. Many other police and surveillance powers are also dependent upon this definition, and these raise significant human rights concerns. Last year, for example, the counter-terrorist power to examine and detain people at ports and airports without reasonable suspicion was controversially used against a French publisher covering the French pension reform protests.
It’s also the case that politicians and the media will pick and choose the language they use to describe certain acts or groups, regardless of the legal definition of terrorism. And so after an attack, we will often have a debate over the correct terminology to use. For example, Democrats such as Barack Obama referred to the assassination attempt on Donald Trump as “political violence”, but many called for the attack on the Capitol on January 6 2021 to be treated as terrorism.
Relatedly, during the Syrian civil war, some groups fighting against the Assad regime and which the British government offered military support to were referred to as “pro-democracy” and hence legitimate; whereas others, such as Islamic State, were expressly labelled terrorists. In legal terms, however, all these groups satisfied the UK’s legal definition of terrorism.
It is precisely because of the inherent subjectivity of the idea of terrorism, and the breadth of discretion conferred on decision-makers by the UK’s definition of terrorism, that we should be careful when calling for its use. This is particularly so because many of the decision-makers making use of these counter-terrorist powers are unelected, making it difficult for the public to hold them accountable for their decisions.
So while in the short term, it may be cathartic to call for these individuals to be prosecuted or labelled as “terrorists”, this could set a precedent that could have unforeseen consequences in the future.
Alan Greene does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
