Is a WhatsApp group considered public for a section 1 terrorism offence?

23 August 2021

Not reviewed after the date of publication

Question:

A suspect has created a channel on Telegram which is clearly Extreme Right Wing in which he then encourages people to join a private chat group after a so called “vetting process”. Within the chat there are numerous clear examples of encouragement of terrorism contrary to Section 1 TACT 2006.

Please can you confirm whether the chat, which is not open to public still meet the elements of the section 1 offence?

Answer:

We understand the question is whether the WhatsApp group meets the ‘public’ element for the offence of encouragement of terrorism in section 1 of the Terrorism Act 2006.

The offence has three elements -

the defendant must publish a statement or cause another to publish a statement, section 1(2)(a).

the statement must be likely to be understood by a reasonable person to whom it is published as a direct/indirect encouragement to some or all members of the public to whom it is published to commit/prepare/instigate acts of terrorism/Convention offences, section 1(1).

the defendant must have the necessary state of mind when publishing the statement/causing it to be published, he must act intentionally or recklessly, section 1(2)(b).

The term public is to be construed in accordance with section 20(3).

20(3) In this Part (sections 1-20) references to the public -(a) are references to the public of any part of the United Kingdom or of a country or territory outside the United Kingdom, or any section of the public; and

(b) except in section 9(4)(definition of radioactive material), also include references to a meeting or other group of persons which is open to the public (whether unconditionally or on the making of a payment or the satisfaction of other conditions).

The offence was amended by the Counter-Terrorism and Border Security Act 2019 to include the part in question and we are of the opinion the WhatsApp group would be considered as ‘public’ for the offence. It is on the satisfaction of other conditions i.e. the vetting process mentioned that the group is open to members of the public.

Furthermore, we are aware of successful convictions for offences of encouragement of terrorism and dissemination of terrorist material which has taken place in WhatsApp groups. Unfortunately, we are unable to locate relevant case transcripts for such, however a media report of a recent judgement can be found below, for reference.

https://www.counterterrorism.police.uk/man-jailed-for-terrorism-offences/

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