Intentional and Performative Persuasion: The Linguistic Basis for Criminalizing the (Direct and Indirect) Encouragement of Terrorism

Abstract

Article 5 of the Council of Europe Convention on the Prevention of Terrorism requires member states to criminalise ‘public provocation to commit a terrorist offence’. In the U.K., the realisation of this obligation is found in the ‘Encouragement of terrorism’ offence contained in section 1 of the Terrorism Act 2006. As well as fulfilling the U.K.’s treaty obligation, this offence was intended to stop the spread of violent extremist ideology. Although the compatibility of this offence with the right to freedom of expression enshrined in Article 10 of the European Convention on Human Rights has been queried, both the domestic courts and the European Court of Human Rights have held that it complies with Article 10’s demands. So, instead of taking Article 10 as its starting point, this article draws instead on work from the field of linguistics: namely, speech act theory (SAT). By using insights from SAT, and by examining some of the linguistic strategies that may be used to encourage acts of terrorism, the article seeks to advance the legal understanding of the concept of encouragement. In particular, the article draws out two features of encouragement that have important implications for the appropriate boundaries of the encouragement of terrorism offence -encouragement is intentional and it is performative - and argues that, as currently drafted, the offence does not reflect the nature of encouragement as an intentional activity. The article concludes by drawing out from its analysis a series of proposed amendments that together address the rights-based concerns about the offence whilst maintaining its effectiveness as a counterterrorism tool.