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New Media, Free Expression, and the Offences Against the State Acts
Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2020 New Media, Free Expression, and the Offences Against the State Acts Laura K. Donohue Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/2248 https://ssrn.com/abstract=3825722 Laura K. Donohue, New Media, Free Expression, and the Offences Against the State Acts, in The Offences Against the State Act 1939 at 80: A Model Counter-Terrorism Act? 163 (Mark Coen ed., Oxford: Hart Publishing 2021). This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Comparative and Foreign Law Commons, Constitutional Law Commons, European Law Commons, Human Rights Law Commons, International Law Commons, Internet Law Commons, Legislation Commons, and the National Security Law Commons New Media, Free Expression, and the Offences Against the State Acts Laura K. Donohue1 Introduction Social media has become an integral part of modern human interaction: as of October 2019, Facebook reported 2.414 billion active users worldwide.2 YouTube, WhatsApp, and Instagram were not far behind, with 2 billion, 1.6 billion, and 1 billion users respectively.3 In Ireland, 3.2 million people (66% of the population) use social media for an average of nearly two hours per day.4 By 2022, the number of domestic Facebook users is expected to reach 2.92 million.5 Forty-one percent of the population uses Instagram (65% daily); 30% uses Twitter (40% daily), and another 30% uses LinkedIn.6 With social media most prevalent amongst the younger generations, these numbers will only rise. -
Terrorist Speech and the Future of Free Expression
TERRORIST SPEECH AND THE FUTURE OF FREE EXPRESSION Laura K. Donohue* Introduction.......................................................................................... 234 I. State as Sovereign in Relation to Terrorist Speech ...................... 239 A. Persuasive Speech ............................................................ 239 1. Sedition and Incitement in the American Context ..... 239 a. Life Before Brandenburg................................. 240 b. Brandenburg and Beyond................................ 248 2. United Kingdom: Offences Against the State and Public Order ....................................................................... 250 a. Treason............................................................. 251 b. Unlawful Assembly ......................................... 254 c. Sedition ............................................................ 262 d. Monuments and Flags...................................... 268 B. Knowledge-Based Speech ................................................ 271 1. Prior Restraint in the American Context .................... 272 a. Invention Secrecy Act...................................... 274 b. Atomic Energy Act .......................................... 279 c. Information Relating to Explosives and Weapons of Mass Destruction............................................ 280 2. Strictures in the United Kingdom............................... 287 a. Informal Restrictions........................................ 287 b. Formal Strictures: The Export Control Act ..... 292 II. State in -
What If the Founders Had Not Constitutionalized the Privilege of the Writ of Habeas Corpus?
THE COUNTERFACTUAL THAT CAME TO PASS: WHAT IF THE FOUNDERS HAD NOT CONSTITUTIONALIZED THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS? AMANDA L. TYLER* INTRODUCTION Unlike the other participants in this Symposium, my contribution explores a constitutional counterfactual that has actually come to pass. Or so I will argue it has. What if, this Essay asks, the Founding generation had not constitutionalized the privilege of the writ of habeas corpus? As is explored below, in many respects, the legal framework within which we are detaining suspected terrorists in this country today—particularly suspected terrorists who are citizens1—suggests that our current legal regime stands no differently than the English legal framework from which it sprang some two-hundred-plus years ago. That framework, by contrast to our own, does not enshrine the privilege of the writ of habeas corpus as a right enjoyed by reason of a binding and supreme constitution. Instead, English law views the privilege as a right that exists at the pleasure of Parliament and is, accordingly, subject to legislative override. As is also shown below, a comparative inquiry into the existing state of detention law in this country and in the United Kingdom reveals a notable contrast—namely, notwithstanding their lack of a constitutionally- based right to the privilege, British citizens detained in the United Kingdom without formal charges on suspicion of terrorist activities enjoy the benefit of far more legal protections than their counterparts in this country. The Essay proceeds as follows: Part I offers an overview of key aspects of the development of the privilege and the concept of suspension, both in England and the American Colonies, in the period leading up to ratification of the Suspension Clause as part of the United States Constitution. -
Crime and Disorder Act 1998 Page 1
Crime and Disorder Act 1998 Page 1 Crime and Disorder Act 1998 1998 CHAPTER 37 Sweet & Maxwell Ltd. UK Statutes Crown Copyright. Reproduced by permission of the Controller of Her Majesty©s Stationery Office. An Act to make provision for preventing crime and disorder; to create certain racially-aggravated offences; to abolish the rebuttable presumption that a child is doli incapax and to make provision as to the effect of a child©s failure to give evidence at his trial; to abolish the death penalty for treason and piracy; to make changes to the criminal justice system; to make further provision for dealing with offenders; to make further provision with respect to remands and committals for trial and the release and recall of prisoners; to amend Chapter I of Part II of the Crime (Sentences) Act 1997 and to repeal Chapter I of Part III of the Crime and Punishment (Scotland) Act 1997; to make amendments designed to facilitate, or otherwise desirable in connection with, the consolidation of certain enactments; and for connected purposes. [31st July 1998] BE IT ENACTED by the Queen©s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:Ð PART I Prevention of crime and disorder CHAPTER I England and Wales Crime and disorder: general 1.Ð Anti-social behaviour orders. (1) An application for an order under this section may be made by a relevant authority if it appears to the authority that the following conditions are fulfilled with respect to any person aged 10 or over, namelyÐ (a) that the person has acted, since the commencement date, in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and (b) that such an order is necessary to protect relevant persons from further anti-social acts by him. -
268KB***The Law on Treasonable Offences in Singapore
Published on e-First 14 April 2021 THE LAW ON TREASONABLE OFFENCES IN SINGAPORE This article aims to provide an extensive and detailed analysis of the law on treasonable offences in Singapore. It traces the historical development of the treason law in Singapore from the colonial period under British rule up until the present day, before proceeding to lay down the applicable legal principles that ought to govern these treasonable offences, drawing on authorities in the UK, India as well as other Commonwealth jurisdictions. With a more long-term view towards the reform and consolidation of the treason law in mind, this article also proposes several tentative suggestions for reform, complete with a draft bill devised by the author setting out these proposed changes. Benjamin LOW1 LLB (Hons) (National University of Singapore). “Treason doth never prosper: what’s the reason? Why, if it prosper, none dare call it treason.”2 I. Introduction 1 The law on treasonable offences, more commonly referred to as treason,3 in Singapore remains shrouded in a great deal of uncertainty and ambiguity despite having existed as part of the legal fabric of Singapore since its early days as a British colony. A student who picks up any major textbook on Singapore criminal law will find copious references to various other kinds of substantive offences, general principles of criminal liability as well as discussion of law reform even, but very little mention is made of the relevant law on treason.4 Academic commentary on this 1 The author is grateful to Julia Emma D’Cruz, the staff of the C J Koh Law Library, the Lee Kong Chian Reference Library and the ISEAS Library for their able assistance in the author’s research for this article. -
Criminal Law Act 1967
Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are currently no known outstanding effects for the Criminal Law Act 1967. (See end of Document for details) Criminal Law Act 1967 1967 CHAPTER 58 An Act to amend the law of England and Wales by abolishing the division of crimes into felonies and misdemeanours and to amend and simplify the law in respect of matters arising from or related to that division or the abolition of it; to do away (within or without England and Wales) with certain obsolete crimes together with the torts of maintenance and champerty; and for purposes connected therewith. [21st July 1967] PART I FELONY AND MISDEMEANOUR Annotations: Extent Information E1 Subject to s. 11(2)-(4) this Part shall not extend to Scotland or Northern Ireland see s. 11(1) 1 Abolition of distinction between felony and misdemeanour. (1) All distinctions between felony and misdemeanour are hereby abolished. (2) Subject to the provisions of this Act, on all matters on which a distinction has previously been made between felony and misdemeanour, including mode of trial, the law and practice in relation to all offences cognisable under the law of England and Wales (including piracy) shall be the law and practice applicable at the commencement of this Act in relation to misdemeanour. [F12 Arrest without warrant. (1) The powers of summary arrest conferred by the following subsections shall apply to offences for which the sentence is fixed by law or for which a person (not previously convicted) may under or by virtue of any enactment be sentenced to imprisonment for a term of five years [F2(or might be so sentenced but for the restrictions imposed by 2 Criminal Law Act 1967 (c. -
Treason Felony Act 1848
Status: This is the original version (as it was originally enacted). Treason Felony Act 1847 1848 CHAPTER 12 An Act for the better Security of the Crown and Government of the United Kingdom. [22d April 1848] WHEREAS by an Act of the Parliament of Great Britain passed in the Thirty-sixth Year of the Reign of His late Majesty King George the Third, intituled An Act for the Safety and Preservation of His Majesty s Person and Government against treasonable and seditious Practices and Attempts, it was among other things enacted, that if any Person or Persons whatsoever, after the Day of the passing of that Act, during the natural Life of His said Majesty, and until the End of the next Session of Parliament after the Demise of the Crown, should, within the Realm or without, compass, imagine, invent, devise, or intend Death or Destruction, or any bodily Harm tending to Death or Destruction, Maim or Wounding, Imprisonment or Restraint of the Person of His said Majesty, His Heirs or Successors, or to deprive or depose Him or Them from the Style, Honour, or Kingly Name of the Imperial Crown of this Realm or of any other of His said Majesty's Dominions or Countries, or to levy War against His said Majesty, His Heirs and Successors, within this Realm, in order, by Force or Constraint, to compel Him or Them to change His or Their Measures or Counsels, or in order to put any Force or Constraint upon or to intimidate or overawe both Houses or either House of Parliament, or to move or stir any Foreigner or Stranger with Force to invade this Realm or -
Submission No. 187 COMMENTS on BEHALF of the BAR OF
Submission No. 187 COMMENTS ON BEHALF OF THE BAR OF ENGLAND AND WALES PROSCRIPTION Coverage 1. This paper sets out some comments, from the perspective of the Bar of England and Wales, on those provisions of the National Security (Miscellaneous Provisions) Bill 2003 (the “Bill”) which amend the Societies Ordinance to provide for the proscription of organisations. It also summarises the appeal procedures created in the UK under immigration and terrorism legislation. Introductory comments 2. In approaching the proposed provisions we consider that it is fundamental to recognise the importance of the right of an individual to freedom of expression, to freedom of association and to freedom of thought, conscience and religion. 3. Only where absolutely necessary should these freedoms be restricted on the grounds of national security. Any such restriction should be necessary and proportionate. 4. Any legislation providing the basis for restriction of these rights should be absolutely clear and should protect the rule of law. Comments on Section 8A(2)(a) and (b) 5. There is inevitably a problem in defining with sufficient precision the minimum conditions which must be met before an order for proscription may be made. One solution to the problem is to seek 1 to define the types of activity which may lead to proscription of an organization which commits, promotes, encourages or is otherwise concerned with such acts. This broadly speaking is the approach adopted in England by the Terrorism Act 2000 (“TA 2000”) in Sections 1 and 3. 6. This statutory scheme and its implementation are very controversial in the UK. -
La Criminalisation De La Manifestation, Une Affaire De Police : Généalogie De L’Infraction D’Attroupement Illégal
La criminalisation de la manifestation, une affaire de police : généalogie de l’infraction d’attroupement illégal Par Francis Villeneuve Ménard Thèse soumise à la Faculté des études supérieures et postdoctorales dans le cadre des exigences du programme de maîtrise en droit Sous la direction de la professeure Marie-Eve Sylvestre Section de droit civil Faculté de droit Université d'Ottawa © Francis Villeneuve Ménard, Ottawa, Canada, 2016 ii Nevertheless, a government, no less than an individual, must possess rights and powers for self-protection, and the permanent well- being of the community, which will be dormant until the necessity of circumstances call them into active life, and they must then be enforced with prudence and firmness, but yet without sowing the seeds of still greater evils, by too forcible conquest, or too revengeful punishment. Such thoughts are naturally suggested by the consideration of the provisions of our law as to unlawful assemblies. (Edward Wise, The Law Relating to Riots and Unlawful Assemblies, 2e éd, Londres, Shaw & Sons, 1848 à la p 85). iii Résumé : Dans un contexte où les tactiques policières, judiciaires et législatives de contrôle des espaces publics se multiplient, plusieurs n’hésitent pas à parler de criminalisation de la protestation sociale. Au Canada, le spectre du droit criminel se fait notamment sentir par le biais de l’infraction d’avoir participé à un attroupement illégal, qui criminalise le fait d’avoir pris part à un rassemblement qui fait «!craindre!» des troubles à la paix publique. Cette infraction n’est pas sans soulever certaines interrogations quant à son adéquation aux principes censés être au cœur du droit criminel moderne et du pouvoir de punir de l’État. -
Modernising the Law of Murder and Manslaughter: Part 1
Journal of Politics and Law; Vol. 8, No. 4; 2015 ISSN 1913-9047 E-ISSN 1913-9055 Published by Canadian Center of Science and Education Modernising the Law of Murder and Manslaughter: Part 1 Graham McBain1,2 1 Peterhouse, Cambridge, UK 2 Harvard Law School, USA Correspondence: Graham McBain, 21 Millmead Terrace, Guildford, Surrey GU2 4AT, UK. E-mail: [email protected] Received: October 17, 2015 Accepted: November 2, 2015 Online Published: November 19, 2015 doi:10.5539/jpl.v8n4p9 URL: http://dx.doi.org/10.5539/jpl.v8n4p9 Index 1. Introduction 31. Hawkins (1716-21) 2. Source Material 32. Blackstone (1765-9) 3. Legal Issues not Considered 33. Summary: Law to 1769 4. Meaning of Words 34. Foster (1776) 5. Benefit of Hindsight 35. East (1803) 6. Babylonian Code 36. Russell (1819) 7. Old Testament law 37. From 1819-1843 8. Roman law 38. Royal Commissions (1843-78) 9. Anglo-Saxon law 39. Stephen (1883) 10. Laws of Henry I (c.1113) 40. Kenny (1902) 11. Glanvill (c.1189) 41. Summary: Law to 1902 12. Summary: Law to 1189 42. Turner (1945) 13. Bracton (c.1240) 43. Royal Commission (1953) & Homicide Act 1957 14. Statute of Marlborough 1267 44. Smith & Hogan (1965) 15. Statute of Gloucester 1278 45. Criminal Law Revision Committee (1980) 16. Britton, Fleta & Mirror of Justices (c.1290) 46. Williams (1983) 17. Statute of Trespassers in Parks 1293 47. Law Commission Criminal Code (1989) 18. Edward III (1327-1377) 48. Carter & Harrison (1991) 19. Act of 1389 on Pardons 49. Justifiable Killing by 1998 20. From 1389-1551 50. -
Treason in Law, Treason Is the Crime That
Treason A 19th century illustration of Guy Fawkes by George Cruikshank. Guy Fawkes tried to assassinate James I of England. He failed and was convicted of treason and sentenced to be hanged, drawn and quartered. In law, treason is the crime that covers some of the more extreme acts against one's sovereign or nation. Historically, treason also covered the murder of specific social superiors, such as the murder of a husband by his wife. Treason against the king was known as high treason and treason against a lesser superior was petty treason. A person who commits treason is known in law as a traitor. Oran's Dictionary of the Law (1983) defines treason as "...[a]...citizen's actions to help a foreign government overthrow, make war against, or seriously injure the [parent nation]." In many nations, it is also often considered treason to attempt or conspire to overthrow the government, even if no foreign country is aided or involved by such an endeavour. Outside legal spheres, the word "traitor" may also be used to describe a person who betrays (or is accused of betraying) their own political party, nation, family, friends, ethnic group, team, religion, social class, or other group to which they may belong. Often, such accusations are controversial and disputed, as the person may not identify with the group of which they are a member, or may otherwise disagree with the group leaders making the charge. See, for example, race traitor. At times, the term "traitor" has been levelled as a political epithet, regardless of any verifiable treasonable action. -
Aiding the Enemy
Aiding the Enemy How and why to restore the law of treason Richard Ekins, Patrick Hennessey, Khalid Mahmood MP and Tom Tugendhat MP Foreword by Rt Hon Lord Judge Aiding the Enemy How and why to restore the law of treason Richard Ekins, Patrick Hennessey, Khalid Mahmood MP and Tom Tugendhat MP Foreword by Rt Hon Lord Judge Policy Exchange is the UK’s leading think tank. We are an independent, non-partisan educational charity whose mission is to develop and promote new policy ideas that will deliver better public services, a stronger society and a more dynamic economy. Policy Exchange is committed to an evidence-based approach to policy development and retains copyright and full editorial control over all its written research. We work in partnership with academics and other experts and commission major studies involving thorough empirical research of alternative policy outcomes. We believe that the policy experience of other countries offers important lessons for government in the UK. We also believe that government has much to learn from business and the voluntary sector. Registered charity no: 1096300. Trustees Diana Berry, Alexander Downer, Andrew Feldman, Candida Gertler, Greta Jones, Edward Lee, Charlotte Metcalf, Roger Orf, Andrew Roberts, George Robinson, Robert Rosenkranz, Peter Wall, Nigel Wright. About the Author About the Authors Professor Richard Ekins is Head of Policy Exchange’s Judicial Power Project. He is an Associate Professor in the University of Oxford, and a Fellow of St John’s College. He is a barrister and solicitor of the High Court of New Zealand (non-practising), where he has also served as a judge’s clerk.