We are living through challenging times.
By Simon Gallant
Mishcon de Reya solicitors
Two weeks ago, it became clear that UK broadcasting regulator Ofcom could not take action against a London-based radio station, run by Saudi exile Muhammed al-Massari, accused of inciting violence against non-Muslims.
Dr al-Massari's radio station has called for attacks on UK troops
This came in the wake of the shooting of an innocent man at Stockwell Tube station.
It seems our liberal and authoritarian instincts each struggle for attention.
So in this fast-moving, emotionally-heightened environment, how does the law deal with those who incite others to commit acts of terrorism?
The Human Rights Act 1988 is the starting point for any discussion about free speech.
With the Human Rights Act, freedom of expression is not an absolute
The Act recognises that we live in a democratic society and that any interference with freedom of expression must be carefully monitored.
But, with the Human Rights Act, freedom of expression is not an absolute.
It will be subject to such restrictions that are necessary in the interests of national security or public safety or for the prevention of disorder or crime. These restrictions may change from time to time.
There are two possible prosecutions for incitement of terrorism. The first is incitement to commit terrorism in the UK.
It is an offence at common law to incite another person to commit a criminal offence, in this case the criminal offence of terrorism.
Proof of motive
Terrorism, as defined by the Terrorism Act 2000, includes: serious violence against a person, serious damage to property, endangering a person's life - not including endangering the life of the person committing the action - creating a serious risk to the health and safety of the public, and any action designed seriously to interfere with or disrupt an electronic system.
Inciting violence for violence's sake would not be incitement to terrorism
But for a successful prosecution for incitement to commit terrorism in the UK, a motive must be proved.
Terrorism is particularly concerned with the following motives:
The action must be designed to influence government or to intimidate the public or a section of the public.
The action must be made for the purpose of advancing a political, religious or ideological cause.
Inciting violence for violence's sake would not be incitement to terrorism.
The other possible prosecution for incitement of terrorism is incitement to commit an offence overseas.
It is immaterial whether the person incited is in the UK at the time of the incitement
The Terrorism Act creates a specific offence where a person incites another person to commit an act of terrorism wholly or partly outside the United Kingdom. The motives discussed above must also be present.
The action being incited would have to amount to one of the following offences if committed in England: murder, wounding with intent, poisoning, causing an explosion or endangering life by damaging property.
It is immaterial whether the person incited is in the UK at the time of the incitement.
There have been no more than a handful of prosecutions for incitement to commit terrorism.
The meaning behind a defendant's language - especially if in a foreign tongue - and determining the purpose behind their utterances raise considerable obstacles.
The government tried to overcome these problems in its Anti-Terrorism Crime and Security Act 2001 (ACTSA).
This included powers to detain foreign nationals suspected of involvement in terrorism but who could not be deported. An example of this would be where there was a risk of them being subjected to torture or inhuman or degrading treatment in their countries of origin.
Just before Christmas, the House of Lords ruled these detentions unlawful. They decided they were discriminatory in that they only applied to foreign nationals and were not proportionate to the terrorist threat.
The government had to think again.
List of grounds
From 22 February this year the detentions were replaced by control orders.
Such orders can impose conditions such as prohibitions on access to specific items or services, and restrictions on association with named individuals, and on movement or curfews. They would not include detention in prison.
Then last week, the home secretary announced a list of grounds for deporting or excluding people from the UK.
These grounds cover any non-UK citizen whether in the UK or abroad who uses any medium - including preaching or running a website - to express views which:
Foment, justify or glorify terrorist violence in furtherance of particular beliefs.
Seek to provoke others to terrorist acts.
Foment other serious criminal activity or seek to provoke others to serious criminal acts or
Foster hatred which might lead to inter-community violence in the UK.
It is, however, likely that these powers will be challenged under the Human Rights Act.