WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
February 20 2024
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
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Counter-extremism: How can children access legal support when they have committed no crime?

Counter-extremism: How can children access legal support when they have committed no crime?

A recent report by the UN into children’s rights in the UK urges the government to ensure children have access to legal support and to ensure their due process rights – but is this even possible under the government’s controversial counter-extremism policy Prevent?

The government’s counter-extremism policy Prevent is one of the four component parts of the government’s counter-terrorism strategy – CONTEST – directed at preventing people from being drawn into terrorism. It has been justified under the notion that it prevents people from being drawn into terrorism, however this has been widely disputed.

Instead, human rights organisations have raised repeated concerns – most recently in a joint request to MPs to withdraw the recent review of Prevent by William Shawcross – that the policy is “ideologically shaped”, that it threatens civil liberties and the right to free speech, increases the threat of discrimination, and that it raises concerns for children in particular.

Prevent relies upon the assumption that certain ideas lead to violence, and as such it necessarily criminalises them. Prevent training identifies several behaviours as ‘signs of extremism’, displaying unwarranted anxiety around normative religious belief (specifically Islam), anti-capitalist ideologies, anti-corporatism, climate, and pro-Palestinian activism.

This means its most troubling aspect is its lack of legal resonance and regulation. Because of its pre-emptive nature, Prevent exists in and in a sense upholds and expands what has become known as the ‘pre-crime space’.

Although it is justified through arguments for preventative policing, it is distinctly different from it, and its inclination is necessarily towards profiling – racial, religious and ideological.

Distinguishing between preventative policing and pre-crime, the authors of the People’s Review of Prevent (p.39, paras 2 and 3), stated:

‘What is happening here is part of a wider process of the incorporation of (speculative) behavioural science into the criminal justice system. This is being done through what has been called, more generally, ‘preventive’ policing. This involves the dystopian fantasy that it might be possible to identify those with a propensity to criminal acts and to intervene before they happen. It takes the form of profiling with the attendant concerns about discrimination integral to it …

The difference between Prevent and other forms of preventive policing, however, is precisely that it takes place outside a direct police initiative, and police are brought into a process that is technically independent of them. Policing is subject to some legal oversight and requirements of formal monitoring and reporting, as well as opportunities to bring a complaint. For example, profiling for stop and search associated with preventing knife crime can be challenged within existing regulatory frameworks. However, this is not the case for Prevent.’

Crucial concerns about children’s rights to justice arise when one considers that when an individual is interviewed by a Prevent officer, they are in effect placed in an encounter with counter-terrorism police officers, while at the same time being unprotected by the law; they are technically not entitled to it since no actual crime is involved.

Over 50% of Prevent referrals are of children and young people under 18. This prompted organiatinoons like Prevent Watch, with the support of several other civil society groups, to submit their concerns to the United Nations.

A recent UN report into children’s rights in the UK acknowledged these concerns, such as the right to be free from discrimination and to express religious beliefs.

However, the UN seemed to miss the fact that Prevent’s pre-criminal nature renders two of their key recommendations with regards to children’s access to justice in the UK simply undoable under Prevent. In fact Prevent by its design, bypasses them.

The UN report into children’s rights in the UK raises concerns about the rights of children in the area of child justice (para. 54), and recommends that the State party ensure that “all children have access to legal support and representations and remedies, including by removing barriers faced by children in disadvantaged situations and expanding the types of support provided under the legal aid budget.”

When children are interviewed prior to a Prevent referral, they have not been charged or even suspected of a crime, yet they are questioned by counter-terrorism officers. This often happens at school, and there have been cases where it takes place without parents’ knowledge or consent.

There have even been cases where teachers have taken children to a separate room and left them alone with Prevent officers. In effect, these children have fewer rights than that of a child that is suspected of a crime, in a pre-criminal space in which they are ideologically viewed as suspicious.

This has not only broken the trust between student and teacher, but it is also arguably a failure by the teachers to act in the best interests of the child as a result of pressure to abide by the Prevent duty through Ofsted’s safeguarding requirements.

From this perspective, Prevent is fundamentally unjust and abusive of due process. Moreover, this situation is distillked in an age of mass data collection.

At the interview stage, a child’s data is taken. If a referral to Prevent takes place, this data is certainly shared with other agencies and bodies, whilst parents seeking information about their child’s referral will often receive very little, if any, information in return.

If no referral takes place, or the referral does not proceed to the counter-radicalisation programme, Channel, it is still very difficult for parents to have their child’s data removed from databases.

This lack of transparency and information sharing raises serious concerns about breaches of children’s data rights, especially given that their data is stored alongside criminals on an unknown number of databases, often emerging later in life to harm them, even when there has been no referral.

Given the pre-crime nature of Prevent, the UN’s recommendation that children have access to legal support would not apply, since – in effect – a Prevent interview is not a criminal intervention in the technical legal sense.

Since it is pre-crime, it also lies outside the remit of the Independent Reviewer of Terrorism legislation, who would have the remit to act in relation to these issues if Prevent was a part of his jurisdiction.

Although a Prevent interaction can and often does involve leading questions posed to a child by counter-terrorism officers, as well as the seizure, storage and sharing of data on police systems, lawyers cannot really step in unless the family decides to launch a judicial review, for which the threshold is high.

Although the Prevent duty itself is primary legislation, it would only present an opportunity for legal representation if the institutions implementing the duty acted in a manner that violates anti-discrimination laws or other legislation such as data privacy and rights.

What is more concerning is that at the interview stage, children and families are often not informed about the stated ‘voluntary’ nature of Prevent or their rights. As such, they may give uninformed, tacit consent to those implementing Prevent, without understanding the long-term repercussions and the legal no man’s land into which they are entering.

This is even more so when children may also not have even been informed that they have been referred by their school, as has been the case in some instances.

The UN Committee recommended that the state ‘promote a positive image of children as rights-holders’ and that the government should ‘ensure that all relevant professionals working with and for children systematically receive appropriate training on the right of the child to be heard and to have his or her opinions taken into account’.

The current training and implementation of Prevent has led to referrals being made either based on children’s views which are deemed ‘extreme’ based on a subjective, anti-religious and/or political understanding of ‘extremism’ or due to some behaviour or comment, without giving the child a chance to explain or clarify the context or intention behind the statement.

This means children, especially Muslim children and those of minority ethnicities, are viewed through the lens of terrorism simply by the legal duty to implement Prevent which has been wedged into safeguarding policy in schools. It is used with great weight to assess schools, despite its harms.

This means that not only are children simply not able to access legal support because there is no jurisdiction for it, but teachers and schools more broadly, cannot be seen to adopt a rights-based approach, since this would be seen to ‘disrupt’ Prevent.

The end result is that the education sector – from nursery to tertiary – is being policed through Prevent, rendering what should be legally protected safe spaces, unsafe for many young people.

The recent recommendations by William Shawcross will expand Prevent, going directly against recommendations by the UN for children’s rights in the UK.