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Thursday, February 14, 2008 

A victory for freedom of thought?

The decision by the court of appeal to clear Mohammed Irfan Raja and four others of their convictions under section 57 of the Terrorism Act 2000 is a complex one, but also one which underlines the difficulty of knowing when to intervene when there appears to be a potential crime about to be committed, of drawing up legalisation which has a potentially chilling effect on the free distribution of literature, extremist or otherwise, and also of relying on information exchanged on chat rooms, and especially of building criminal prosecutions around that supposed evidence.

The lawyers for the men have tried to claim that they were imprisoned for what was more or less a thought crime. There's a certain amount of truth in that argument, but there's quite reasonable doubt about what the men's intentions were, with the prosecution in the original case alleging, not only that the men were planning to travel to Pakistan to "train for terrorist purposes", but also that they were afterwards going to join the fighting in Afghanistan. This is what the first two parts of section 57 say:

(1) A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism.

(2) It is a defence for a person charged with an offence under this section to prove that his possession of the article was not for a purpose connected with the commission, preparation or instigation of an act of terrorism.

The position of the defendants was always that they had the material in question, with some of them claiming that it was for their studies, others simply for educational purposes, but certainly not to be used to prepare or instigate terrorism with. For the most part what they had appears to be the usual jihadist material, alongside nasheeds (Islamic acapellas, in this case the kind that usually soundtrack jihadist releases with praise for the mujahideen). According to reports from the Times and Telegraph, they also had

The material included a US military guide to terrorism that gave instructions on how to make explosive devices and a suicide-bombing manual.
Also found were extracts from an al-Qa'eda training manual, including a list of the most popular types of explosive and diagrams of triggering devices. Other documents discovered included a "military guide to terrorism in the 21st century".

The latter report is misleading in that it doesn't make clear that the military guide is a US army training document, freely available online from a number of places. As I've commented in the past, much of these so-called al-Qaida training manuals are nonsense, more likely to kill the person attempting to do anything described in them than anybody else. If they were only lists of explosives and diagrams of triggering devices, they hardly had even the building blocks of how to make any sort of bomb.

The BBC has helpfully mirrored the ruling (PDF) in full. This part, where the judges considered the evidence presented during the initial trial from conversations held on MSN, is especially illuminating:

37. Was there evidence before the jury that left it open to them to conclude that the appellants possessed the drives and discs for the purpose of instigating acts of terrorism? Without considering in detail the extremist literature and the evidence given in relation to it and the MSN communications we are unable to answer this question with certainty. Mr Edis took us through those communications at some length. While they lent support to the prosecution case that the appellants had formed a plan to go to Pakistan to train and then to Afghanistan to fight, there was nothing that evidenced expressly the use, or intention to use, the extremist literature to incite each other to do this. We think it doubtful whether there was a case of infringement of section 57, as we have interpreted it, that could properly have been left to the jury.

The judges' conclusion was that they only lent support towards the prosecution case, not that it proved it beyond reasonable doubt, which is the measure by which juries are asked to convict. It's impossible to reach a full conclusion without knowing exactly what the communications on MSN were, and as they was only really reporting of the case once it had concluded and the verdict reached, we simply don't know. This is what is alluded to nearer the beginning of the judges' ruling:

8. Subsequent police enquiries led them to arrest and search the other appellants, which revealed that they too were in possession of radical Islamic material and other material such as a USA military manual downloaded from the internet. Further MSN communications were found. These included an MSN discussion between all four of the Bradford appellants and a cousin of Malik, Imran, who lived in Pakistan, on 1 March 2006. It was the prosecution case that Imran was a foreign based terrorist. In the course of that discussion Butt asked about how to travel without raising suspicion.

Going by this, the evidence hardly looks overwhelming. There are plenty of reasons why you want to travel without raising suspicion, and not all of them point towards doing so because you intend to attend a terrorist training camp. That this Imran is a relative of Malik also doesn't help; if it was someone they had only met over the internet then it might be different. Much of the rest of the evidence against them is hearsay; that they had tried to take over a meeting of Bradford University's Islamic society and that one of them had scrawled "jihad" on chalk in a wall.

The other main piece of evidence, despite how some of the media have tried to portray it, is also far from conclusive: the youngest member of the group convicted, Irfan Raja, had left a letter for his parents (see image at top) after he had apparently ran away to join the four men in Bradford, especially when you consider that he was said to be depressed and upset at the time. There are no references to jihad or going to fight, let alone to Pakistan or Afghanistan, instead telling his parents he will meet them "in paradise, god willing", that they shouldn't be sad, although he also says he knows they will be upset, but also not to blame anyone, instead to pray to Allah. He also says that "just in case you think I am going to something in this country, you can rest easy that I am not." You can read into it what you like, but on the surface it's nothing more than an immature young person deciding to run away and presumably leave the country, then having second thoughts. Whether he intended for those who he ran away to getting caught up in this mess after his parents contacted the police, whether he had got the wrong end of the stick somewhere along the line or otherwise, he doesn't seem to have deserved to have been sentenced to two years' detention at the end of making such a mistake.

Paragraph 45 of the ruling deals with why the judges felt that the jury should not have been allowed to rule on whether there was a breach of section 57 in the first place, concluding that the prosecution had not made the case for the appealants' using the material to incite each other to travel to Afghanistan to fight, rather than simply to travel to Pakistan to train, while paragraph 47 asks a very good question: why they hadn't been charged under section 59 of the act, which deals with inciting terrorism overseas. The respondent first agreed, then reflected with this statement:

“The prosecution position is that there are a few utterances on the MSN which were arguably capable of falling within section 59 but they did not reflect the totality of the conduct of the defendants. Not every defendant had made such an utterance. These utterances also do not focus on the particular crimes mentioned in section 59 but are of a general nature. There is an inference that there must have been other such utterances on occasions in the past, and a further inference that there would be others in the future which would be more and more proximate to an act of terrorism as time passed if the plan succeeded. The prosecution case was that the material was possessed for future use in inciting and so instigating acts of terrorism. In these circumstances charges under section 57 were preferred. The prosecution considered that the totality of the conduct of the defendants could not have been caught within charges brought under section 59. Otherwise, such charges would have been brought.”

In other words, the prosecution felt it more likely that they would be found guilty under section 57 than they would under section 59, regardless of the fact that neither 57 or 59 really adequately cover what the MSN conversations suggested that the group intended to do.

The whole prosecution was then fraught with maybes, possibilities, inferences and suggestions. There isn't much doubt that all 5 of them had accessed extremist literature and propaganda, and were reasonably radical in their views, especially considering that they photoshopped their faces onto a poster of the 19 9/11 hijackers, and that their MSN names were nom de guerres of suicide bombers. The big question should be and should have been whether they really were going to go to Pakistan, let alone Afghanistan, or act on the material. That never seems to have been proved, and if the four were anything like Irfan Raja, they would have been prone to reconsidering exactly what it was they were doing, or even thinking of doing. The case in my view was rightly thrown out, although I'm not as certain as some that this is a blow for free speech or free thinking.

The other big question it raises, apart from how to tackle the ideology they were accessing, is when to intervene. Do we let those that want to go and fight in either Afghanistan or Iraq go and do so, knowing that eventually they might return here and put their training to horrific effect? Do we make certain that if we do, that we make damn sure they don't get back in? Or do we intervene early as in this case, under new, clearer legislation, and potentially imprison the innocent that were all mouth online and no trousers in reality? From my perspective, regularly downloading jihadist propaganda and releases so that I can comment more accurately on exactly what's going through the average jihadist's mind, what's happening in the jihadi online world and how we can more effectively fight back to win the battle of hearts and minds, and also chatting online where I have been known to make inchoate or sarcastic statements that I would never in reality follow through on, this kind of case slightly frightens me, as does the latter suggestion. As often seems to be the case, all the options on the table look like equally bad ones.

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Do we let those that want to go and fight in either Afghanistan or Iraq go and do so, knowing that eventually they might return here and put their training to horrific effect?

We already do, don't we?

Quite so. Worth keeping in mind just how many return so damaged that they end either killing themselves or other people.

I was being a little facetious but you are absolutely right, especially in the US, the toll from the aftermath of these wars over many years is horrific.

I did realise that ;)

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