Treason Versus Outraging Public Decency: Over-Criminalisation and Terrorism Panics

DOI10.1177/0022018319879846
AuthorDennis J Baker
Publication Date01 February 2020
SubjectArticles
Article
Treason Versus Outraging Public
Decency: Over-Criminalisation
and Terrorism Panics
Dennis J Baker
De Montfort University, UK
Abstract
In this article, I shall try to outline some grounds for resisting enacting new treason-type
offences. It shall be argued that an offence of treason based on the wrongness of ‘betrayal’
would add nothing extra to the protection that is already provided for in a plethora of ter-
rorism offences that cover preparation, inchoate acts concerning terrorism as well as con-
summated terrorism attacks. I shall try to demonstrate that what supplies the normative case
for criminalisation in these sorts of cases is culpability plus harm, not betrayal in itself. Betrayal
is a minor aggravating feature that can be dealt with by sentencing judges. I also argue that there
is no evidence that the sentences available in our terrorism legislation are not ample to deal
with those who go abroad to fight in armed conflicts involving British forces. Finally, it is argued
that while the common law offence of outraging public decency might plug gaps where
returning Islamic State of Iraq and Syria brides make outrageous comments, it should be used
only as a last resort when the speech involves hate speech of a serous kind.
Keywords
Terrorism, treason, outraging public decency
Introduction
An issue that is currently being debated is what to do about returning Islamic State of Iraq and Syria
(ISIS) brides. These women travel to war zones such as Syria and voluntarily marry jihadist militants.
Many of the marriages are temporary marriages because of the high mortality rate among the fighters
they marry. It is said they serve to provide comfort and intimacy for the fighters. Their motivation for
providing this sort of comfort to the fighters is not too different from the motivation the jihadist militants
have for fighting.
1
Many of these women have not personally perpetrated any crimes or assisted or
Corresponding author:
Dennis J Baker, Leicester De Montfort Law School, De Montfort University, Hugh Aston Building, Leicester, LE1 9BH, UK.
E-mail: dennis.baker@dmu.ac.uk
1. M Loken and A Zelenz, ‘Explaining extremism: Western women in Daesh’ (2017) 3(1) European Journal of International
Security 45.
The Journal of Criminal Law
2020, Vol. 84(1) 19–36
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DOI: 10.1177/0022018319879846
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encouraged others to do so. In many cases, there is no evidence of them being involved in preparatory
crimes or conspiracies and thus they technically can return to Britain without any legal consequences.
This has led to a frenzied debated in the media about whether we need to enact a new treason offence.
The Home Secretary has grasped penal populism with alacrity, but what we need are nuanced and
reasoned arguments so we can decide what legal responses, if any, are appropriate. I shall start by trying
to demonstrate that the law of treason offers nothing in such cases. More generally, I shall argue that the
law of treason is not apt for tackling the modern problem of terrorism and therefore should not be
expanded. Thereafter, I shall refute the argument that we need a new offence of treason because our
current terrorism laws are not sufficiently extensive and the claim that our current law does not allow for
severe enough punishments. It will be argued if anything terrorism is over-criminalised and dispropor-
tionately punished. Finally, I shall argue that the common law offence of outraging public decency could
apply to some returning ISIS brides but that we should be thinking hard about the need for a criminal law
response when we are relying on these sorts of vague offences. The bare act of deserting Britain to marry
a militant has the potential to outrage public decency, but it is more likely the offence would be applied
when the returning bride makes hateful comments in the media.
I examine whether there are lacunae in th e law for cases wher e people have trav elled abroad and
married and/or associated with terrorists and war criminals. It will be argued that it is not a problem
of substantive law, but one of insufficient evidence to prosecute. Having said that, if we were to
criminalise the act of association
2
under a broad perfidy offence, it would catch cases where we are
unable to prove that the associate (wife, sister, friend and so on) assisted or encouraged terrorism or
war crimes. A recent report by Policy Exchange, authored by a shadow minister; a Tory MP—who is
a former soldier, a barrister/broadcaster and a leading academic,
3
argues that the law of terrorism is
inadequate in many cases and does not provide sufficient sentences for certain acts involving
betrayal. The makeup of the authorship of that report means it is likely to be influential.
4
Therefore,
Ishalltrytoaddresssomeoftheconcernsraisedby the authors of that report and put forward robust
counterarguments.
A new offence of treason would only plug the evidential gap by making the bare act of betrayal
itself criminal (the bare act of a British citizen associating in anyway with enemies of Britain) but that
act of betrayal in itself would hardly justify the sorts of sentences that the Policy Exchange report calls
for. The current problem is one of a lack of evidence. It might be assumed that some of the ISIS brides
took a more than passive role, but we cannot try people on a statistic guess. We need evidenceon what
the particular ISIS bride was intending and evidence about what actions she personally undertook.
5
We need evidence to support any allegations of active involvement in armed conflicts involving
Britain forces. There may well be evidence, but until it is discovered these ladies remain innocent
until proven guilty.
2. I do not intend to examine the sorts of crimes that might have been perpetrated by the associates of Shamima Begum. For an
examination of the core offences that might have been assisted or encouraged, see Antonio Cassese, Cassese’s International
Criminal Law (OUP, Oxford 2013); Terrorism Act 2000;Terrorism Act 2006.
3. R Ekins, P Hennessey, T Tugendhat and K Mahmood, Aiding the Enemy: How and Why to Restore the Law of Treason (Policy
Exchange, London 2018).
4. The Policy Exchange webpage claims: ‘The report’s recommendation for reform of the law of treason was taken up in the
House of Lords last year, leading to amendments being proposed to the Counter-Terrorism and Border Security Bill. Last
month, the report was raised again in both Houses of Parliament, with the Rt Hon Sajid Javid MP, the Home Secretary,
confirming that the Government is examining the idea closely’. See Policy Exchage’s comments under its advert for: ‘Cry
Treason!Does the UK need to restore the law of treason?’.
5. Research looking at them as a group does not give us evidence for prosecuting individuals. For some insights into the role of
women in ISIS, see L Sjoberg, ‘Jihadi Brides and Female Volunteers: Reading the Islamic State’s War to see Gender and
Agency in Conflict Dynamics’ (2017) 35(3) Conflict Management and Peace Science 296; D Chatterjee, ‘Gendering ISIS and
Mapping the Role of Women’ (2016) 3(2) Contemporary Review of the Middle East 201.
20 The Journal of Criminal Law 84(1)

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