An Essay on Threat, Risk and Proportionality

An Essay on Threat, Risk and Proportionality

I’ve had quite a lot of feedback recently to the slide-deck I uploaded to LinkedIn regarding proportionality, and the Martyn’s Law update.??I thought it might be useful to apply some context to that.

Let’s start by acknowledging that we all get threat and risk mixed up.??The words have become so interchangeable over the years that even I find myself talking about risk when what I’m really talking about is threat. As I wrote this article, I found myself doing it!

Threat is a combination of what terrorists want to do alongside what they can do, in technical jargon Intent and Capability.??Important Point:??You can predict the likelihood of a threat materialising itself.

We know from environmental scanning what terrorists have done in the past, and where that has been successful, that is a good indicator for the future.??A case in hand is that by 2017, we knew that terrorists were driving vehicles into pedestrians. That was a highly-likely threat.??Following the response to the 2014 ‘call to arms’ by Daesh, we knew that people could, and intended to, attack people with knives.

The threat prediction for the UK is done for us by the Joint Terrorism Analysis Centre (JTAC), who set the national threat levels, currently at SUBSTANTIAL.??Occasionally, they will set sector-specific threat levels and it has not been uncommon for the threat levels to the military and the Jewish community to be higher than the national baseline.??The threat to these has been demonstrated by the?INTENT?of various terrorist entities to attack them.??They are not at greater risk; they are at greater threat.

I agree with some commentators who say we should be undertaking informal assessments of threats and establishing our own levels.??That is OK, providing that the level is not set below the baseline.??As an example, I will argue that the threat to the LGBT community is higher than the baseline, because of all the targets out there, terrorists have demonstrated an intent to attack this one.

BUT?beware of drawing comparisons?between threat likelihood and conventional risk likelihood. Likelihood in the context of terrorism threat seldom has a chronology or geography of when and where an attack will happen.??There is seldom a prediction of the type of method (the capability) that will be used and, if there is, it means that there is intelligence available, and the threat level will rise to critical (I’ll come back to this shortly).

Risk is the response to threat.?In common language, if any of those threats arrive at my location could they hurt it (or the people therein), and how badly, in technical jargon?vulnerability?and?consequence.??In other risk types, such as those covered by the 1974 Health and Safety Act, likelihood is included in the risk equation.??

As an example, we know that human beings are vulnerable to the effects of asbestos dust, and the consequence of inhaling it is potentially death.??However, the management of this threat is highly predictable.??We know what buildings contain asbestos, we know how to contain it and/or remove it, and each time we come across it, those are the actions we should take. That removes the vulnerability straight away as well as the consequence.

Now consider a nightclub that creates a substantial queue outside, every night it is in operation.??It is one of thousands of nightclubs in the UK, probably creating the same opportunity to a would-be terrorist in a car, about whom we have no information of when and where they want to attack. Even if we know that 5 people are likely to die in such an attack and 10’s are injured, what should we do about that threat?

Well, we should consider whether we can stop our queue from being hit by that car (i.e., reduce the?vulnerability).

Is it proportionate to install PAS rated bollards around those queues???I don’t believe it is, but that doesn’t stop you from doing so if you can, it is the gold-standard.

So, what else could we do, that is proportionate and won’t cost me ￡10,000’s???Here are a few ideas:

·??????Move the queue

·??????Park staff cars along the road to prevent others from mounting the pavement

·??????Place ‘clatter-boards’ out to provide early alerting if an attack does happen

·??????Use deterrence methods such as planters (note: these won’t stop, but they might deter)

·??????Install temporary barriers for special events which might carry more threat

(See CPNI website for a great range of options)

What if you can’t do any of those things?

You can still reduce the risk by managing what happens during and after such an attack e.g.??you can manage the?consequence?by having things like effective trauma first-aid provision, and Run Hide Tell plans.??Plans, save lives.

While proportionality has some legal definition from the HSA 1974, that proportionality is largely predicated on the predictability of a foreseeable threat coming to life.?

My sense with Martyn’s Law is that there will be an argument that for any given location, a specific terrorist threat is not foreseeable without the intelligence that would take us to critical, and herein lies an important lesson for us all.

If your plans to deal with risk, are not scalable when the threat changes, that is when the legal liabilities are likely to gather momentum.??If we are collectively told that an attack is now highly likely, rather than likely, and we are still not tackling our vulnerabilities, then our actions become questionable.

We are still some way off from seeing Martyn’s Law come to life, although I am confident that it will.??I am optimistic that most people will want to engage with it and do what they can to protect others.??I’m optimistic that education and raising standards will be at the heart of any enforcement mechanism.

However, I think we are going to be some years away from getting legal precedents that help us fully define those legal responsibilities beyond ambiguity.??We shouldn’t be disheartened by this; it is exactly how English law has been developed for centuries and results in good quality legislation.