Humanitarian, Development and Peacebuilding Work Overseas

• Introduction
• Terrorism
• Counter-Terrorism Legislation
• Proscription Offences
• Terrorist Financing Offences
• Humanitarian, Development and Peacebuilding work overseas
• CPS Prosecutions
• Conclusion

Introduction

The Crown Prosecution Service (CPS) is the public authority responsible for prosecuting people in England and Wales who have been charged by the police with a criminal offence. The CPS is independent, and we make our decisions independently of the police and government. In undertaking our role, we:

• Advise the police on cases for possible prosecution.
• Review cases submitted by the police for prosecution in accordance with the principles in the Code for Crown Prosecutors.
• Consider the alternatives to prosecution in appropriate circumstances.
• Where the decision is to prosecute, determine the charge in all but minor cases.
• Prepare cases for court.
• Present those cases at court.

Prosecutors must be fair, objective, and independent, and all decisions to prosecute are taken in accordance with the Code for Crown Prosecutors. This means that to charge someone with a criminal offence, prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction, and that a prosecution is in the public interest. This is known as the Full Code Test.

Terrorism

The CPS works closely with the police and partners to help deliver the UK Government’s counter terrorism strategy (CONTEST) to ensure that we have the best possible response to the threat from all forms of terrorism. CPS prosecutors regard those who commit terrorist offences as criminals and believe that it is important that they are tried fairly and objectively through the mainstream criminal justice system, applying the same standards as to any other case, and using offences that properly reflect the conduct concerned.

For some specific terrorism offences, including where an offence concerns the affairs of another country, Parliament has made a statutory provision for the Attorney General’s consent to be legally required before a prosecution is brought. The circumstances of any particular case are taken into consideration and the Attorney General will scrutinise the sufficiency of evidence and the public interest factors in each individual case when deciding whether to grant permission.

In accordance with wider Government policy, the CPS is committed to ensuring that counter-terrorism legislation is applied in a clear and effective manner that is proportionate to risk, and without compromising other UK Government priorities or unnecessarily impeding humanitarian, development or peacebuilding activities overseas.

This guidance provides information on proscription offences and terrorist financing offences; it does not cover sanction regulations or any related criminal offences. It explains how the public interest stage of the Full Code Test may be applied in cases involving humanitarian, development or peacebuilding work overseas. Other published guidance is also available that will assist such organisations:

• The Home Office ‘For Information Note: Operating within counter-terrorism legislation, counter-terrorism sanctions and export control’.
• The Charity Commission for England and Wales - ‘Charities and Terrorism’ - to increase awareness of how charities might be at risk of abuse for terrorist purposes as well as help them to develop their own risk measures and procedures.
• Separate CPS guidance - Terrorism: Guidance in relation to the prosecution of individuals involved in terrorism overseas, and Corporate Prosecutions which provides some general principles on individual and corporate liability.

Counter-Terrorism Legislation

The Home Office is responsible for most counter-terrorism legislation and policy, including the overall policy for countering terrorist finance and management of the proscription regime for the UK. Counter-terrorism legislation is not intended to prevent or to hinder humanitarian, development and peace building organisations from operating overseas. This commitment is reflected in United Nations Resolution 2462 (2019) which reaffirms that: ‘Member States must ensure that any measures taken to counter terrorism comply with all their obligations under international law, in particular international human rights law, international refugee law, and international humanitarian law’.

The fundamental principle that underpins most terrorism prosecutions is the definition of terrorism at section 1 of the Terrorism Act 2000. This provides the legal definitions, as agreed by Parliament, that the CPS must apply to decision making in terrorism cases, and in accordance with the Code for Crown Prosecutors.

The Terrorism Act 2000 defines terrorism, both in and outside of the UK, as the use or threat of one or more of the actions listed below, and where they are designed to influence the Government, or an international governmental organisation or to intimidate the public, or a section of the public. The use or threat must also be for the purpose of advancing a political, religious, racial or ideological cause. The specific actions included are:

• serious violence against a person,
• serious damage to property,
• endangering a person's life (other than that of the person committing the action),
• creating a serious risk to the health or safety of the public or a section of the public,
• action designed to seriously interfere with or seriously to disrupt an electronic system.

The use or threat of action falling within one of the categories specified above, which involves the use of firearms or explosives is terrorism whether or not it is designed to influence the Government, or an international governmental organisation or to intimidate the public or a section thereof.

Section 1(5) of the Terrorism Act 2000 also confirms that ‘a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation’.

Proscription Offences

Proscription is the banning of an organisation based upon a reasonable belief that it commits or participates in, prepares for, promotes or encourages, or is otherwise concerned in terrorism. The Home Secretary, in consultation with other parts of Government, is responsible for proscription policy and implementation. A list of terrorist organisations banned under UK law, and details of the criteria used when deciding whether or not to proscribe an organisation, is available at the gov.uk website - Proscribed terrorist groups or organisations.

Part 2 of the Terrorism Act 2000 includes proscription offences:

• Section 11 - Membership
• Section 12 - Support
• Section 13 – Uniform and publication of images

All these sections provide the court with extra-territorial jurisdiction.

The Act provides a defence at section 12(4):

• Where a person is charged with an offence under subsection (2)(c) in respect of a private meeting, it is a defence for him to prove that he had no reasonable cause to believe that the address mentioned in subsection (2)(c) would support a proscribed organisation or further its activities.
• Subsection 2(c) confirms that a person commits an offence if he arranges, manages or assists in arranging or managing a meeting which he knows is ‘to be addressed by a person who belongs or professes to belong to a proscribed organisation’.

As noted in other guidance, the explanatory notes for the Terrorism Act 2000 explain that the defence in section 12(4) is intended to permit the arrangement of ‘genuinely benign’ meetings. While these notes do not have direct legal effect, they are helpful in clarifying the intended effect of the legislation and can be taken into account when considering whether a prosecution is in the public interest, and by the courts in interpreting Parliament’s intention when bringing the legislation into force.

For full details of these offences please refer directly to the legislation and explanatory notes.

Terrorist Financing Offences

Part 3 of the Terrorism Act 2000 criminalises terrorist financing. The related criminal offences are:

• Section 15 – Fund-raising.
• Section 16 – Use and possession.
• Section 17 – Funding arrangements.
• Section 17A - Insurance against payments made in response to terrorist demands.
• Section 18 – Money laundering.

All these sections provide the court with extra-territorial jurisdiction.

Section 21ZA of the Terrorism Act 2000, sets out that a person does not commit an offence under sections 15-18 by involvement in a transaction or arrangement relating to money or other property when arrangements with prior consent are in place.

Section 21ZB of the Terrorism Act 2000, sets out that a person does not commit an offence under sections 15-18 by involvement in a transaction or arrangement relating to money or other property if appropriate disclosure is made after entering into arrangements, and there is a reasonable excuse for not making such disclosure prior to the arrangement, and the disclosure has been made of their own initiative and as soon as reasonably practicable.

Further information on how to make such a request to the National Crime Agency UK Financial Intelligence Unit (UKFIU) in relation to s21ZA and s21ZB is available via the NCA - Requesting a defence from
the NCA under POCA and TACT.

For full details of these offences please refer directly to the legislation and explanatory notes.

Humanitarian, Development and Peacebuilding work overseas

Humanitarian, development and peacebuilding work delivered overseas does not normally engage terrorism offences, and it is recognised that such work can greatly assist in combating the rise of terrorist activity. In particular, humanitarian, development and peacebuilding efforts and functioning rule of law structures can help reduce and prevent violent conflict and terrorism. Civil society organisations are an important part of combatting the causes of terrorism.

Humanitarian, development and peacebuilding work overseas often takes place in the context of conflict, instability and fluid governance arrangements, including in countries/regions where proscribed organisations are active, or form part of a government or control access to communities in need. Such work may involve contact with proscribed organisations and their members, ordinary and incidental financial transactions within the local economy, travelling or maintaining a presence in volatile environments to safely deliver aid to those most in need, or work to support dialogue and peacebuilding efforts. Organisations will need to manage and mitigate the risks in line with international laws and standards, and in compliance with UK law, while ensuring that wherever possible humanitarian, development and peacebuilding work is not unnecessarily disrupted, delayed or discouraged.

As of the date of this publication, no individual from an International NGO or body corporate has been prosecuted by the CPS for terrorism offences relating to humanitarian, development or peacebuilding work.

CPS Prosecutions

The CPS does not make the law or decide what is a criminal offence, nor can we provide external legal advice. It is also not the function of the CPS to decide whether a person is guilty of a criminal offence, but to make assessments about whether it is appropriate to present charges for the criminal court to consider. Our independence is central to the criminal justice system of our democratic society, and our decision making is taken in accordance with the Code for Crown Prosecutors.

A finding that there is a realistic prospect of conviction is based on the prosecutor’s objective assessment of the evidence, including the impact of any defence and any other information that the suspect has put forward or on which they might rely. For example, in cases relating to humanitarian, development and peacebuilding organisations, consideration of what due diligence measures were put in place to actively comply with UK law may be relevant when applying the evidential stage of the Full Code Test.

The CPS recognises the important work undertaken to provide humanitarian, development assistance and peacebuilding efforts internationally. As highlighted above, counter-terrorism legislation is not intended to hinder humanitarian, development or peacebuilding work, and where it is alleged an organisation has committed an offence, careful consideration of whether it is in the public interest to bring a prosecution will be required.

As in all cases, the public interest stage of the full code test provides a degree of discretion that enables prosecutors to take a proportionate approach when applying terrorism legislation. While not an exhaustive list, the Code provides some generic questions which may be applied in any given case when considering whether a prosecution is in the public interest:

1. How serious is the offence committed?
2. What is the level of culpability of the suspect?
3. What are the circumstances of and the harm caused to the victim?
4. What was the suspect’s age and maturity at the time of the offence?
5. What is the impact on the community?
6. Is prosecution a proportionate response?
7. Do sources of information require protecting?

Full detail about these questions is available in the Code for Crown Prosecutors.

In addition, when considering the public interest in specific cases involving humanitarian, development or peacebuilding organisations, CPS prosecutors may consider:

1. The nature of the operational challenge that may be facing those delivering humanitarian, development or peacebuilding work. For example, if a proscribed organisation forms part of the actual or de facto government of a country or region where that work is necessary.
2. The extent to which appropriate systems and controls to minimise the risk of terrorism offences being committed have been put in place.
3. Whether interaction with any proscribed organisation is genuinely benign, in that terrorist activities are not promoted.
4. Whether the suspect is seeking to abuse their position when delivering humanitarian, development or peacebuilding work.
5. Whether a prosecution is proportionate having regard to possible action by other regulators.

These factors are not exhaustive and may not all be relevant in every case. The weight attached to each will also vary according to the facts and merits of each case. Where relevant, sections 21ZA, s21ZB and s12(4) of the Terrorism Act 2000, may also feature.

Finally, as flagged above, for terrorism related offences committed overseas any CPS decision to prosecute will require review by the Attorney General and their consent to prosecute. The Attorney General will scrutinise the public interest factor in each individual case when deciding whether to consent to a prosecution.

Conclusion

The CPS cannot provide a binding commitment that it is never in the public interest to prosecute an individual from an organisation conducting humanitarian, development, or peacebuilding work. Our ability to apply prosecutorial discretion must be handled with care, respecting its boundaries and the legislative functions and intentions of Parliament.

As far as possible, we will carefully consider case specific factors that are relevant when deciding whether a prosecution is in the public interest. We would repeat that to date, no individual from an International NGO or body corporate has been prosecuted by the CPS for terrorism offences relating to humanitarian, development or peacebuilding work. However, as should be expected, all allegations or offences will be investigated where appropriate, and as determined by the police.

Our independence is at the forefront of all that we do, and it remains the responsibility of organisations working overseas to ensure that their activity complies with UK law (and the law of the country they are operating in) and to take all reasonable steps to reduce the risk of non-compliance. If in any doubt, relevant guidance should be consulted, and/or independent legal advice sought.