U.K. Prosecutors Lose a Legal Option in Preventing Terrorism

On January 29, 2010 an appellate court in Scotland declared it was quashing a terrorism charge against 24-year old Mohammed Atif Siddique, the first person to be convicted on charges related to Islamist terrorism in Scotland. [1] Initially convicted on charges of disorderly conduct, setting up websites to disseminate extremist material, disseminating extremist material, and possessing items related to terrorism, the appeals court concluded that the conviction on the last of these charges was unsound, resulting in a “miscarriage of justice.” Siddique has at this point already served four years which the Crown Prosecution Service considered sufficient to cover the other charges and he was released on February 9 (BBC, February 10).

Reporting on the case naturally centered around the “miscarriage of justice,” though reports also pointed out that the convictions still stood on the other two terrorism-related charges and the disorderly conduct charge (Times, January 29; BBC, February 10; UK Press Association, February 9). In a series of interviews after his release, Siddique was unable to provide much explanation for the actions which led to his initial convictions, beyond that he was a “numpty” (a Scottish pejorative for a foolish person), and that he was bored and trying to find out “the other side of the story” (BBC Radio 5 Live, February 10; Scotsman, February 11). His justification for providing links to extremist material was that it was all “freely available” on the internet (he claimed to have obtained some of his material from the Israeli-based e-prism.org website run by Reuven Paz, former head of the Mossad research department) and that anyway, it was all in Arabic, a language he didn’t understand (BBC, February 10). He further dismissed statements he had made that he was planning to become a suicide bomber, by pointing out that he had also claimed to have met with Osama bin Laden – painting himself as a naïf eager to impress others (BBC, February 10). Siddique suggested he was a victim of racism and bad timing. “Had a white person downloaded this stuff, there would have been no prosecution… My trial came at a time when there was a lot of hostility – the Glasgow Airport attacks had just happened, my trial finished on the anniversary of 9/11" (The Scotsman, February 11).  

The reason for the decision to quash the conviction was based around a failure by the trial judge to instruct the jury that it had to be sure that the items Siddique possessed were intended for use in a terrorist act, according to section 57 of the Terrorism Act 2000:

"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]"

According to section 57, the jury must be sure that the intended possession of terrorism-related material is under “circumstances which give rise to a reasonable suspicion” that they were part of a terrorist plot.  By failing to indicate this crucial point, the judge “misdirected” the jury, rendering their conclusion unsound. [3]

The case is not, however, without precedent. Siddique was part of an online sub-culture of individuals involved in At-Tibyan publications and their related websites. Individuals involved in this network, including Aabid Khan and Younis Tsouli are currently incarcerated on terrorism charges, while a separate group, mostly from Bradford, was released under circumstances similar to Siddique’s in February 2008. [4] In that case, the appeals judge concluded that the jury had been equally misdirected about the specific nature of the charges connected to Section 57 and that it was unclear whether the materials the suspects possessed were linked to planned terrorist acts. [5] The men were allegedly planning to join the mujahideen in fighting NATO forces in Afghanistan; Siddique was initially stopped after he attempted to board a flight going to Pakistan, claiming he was going to visit an uncle’s farm.

Later in 2008, Samina Malik, the self-described “Lyrical Terrorist” was cleared of a conviction under section 58 of the Terrorism Act 2000 (which states that “a person commits an offense if: they “collect” or “possess” “information of a kind likely to be useful to a person committing or preparing an act of terrorism”). The conviction was overturned after the appeals judge concluded that it was too intertwined with the Section 57 charge of which she had already been cleared. [6]

The key prosecution charge in all of the aforementioned cases came under Section 57; the individuals involved possessed substantial volumes of radical material they had obtained online and were using in furtherance of terrorist plots. While all (aside from Samina Malik) were initially convicted on this charge, the government’s case was undermined on appeal by nature of the wording used in court around the charge, something which highlights the difficulty in bringing a conviction based on possession of extremist material as the main charge. The point is that the individuals were not caught in possession of weaponry or other clearly bellicose accoutrements, but rather online tracts and handbooks which, when taken in conjunction with other evidence, amounted  to, in the prosecution’s view, tangible evidence that a terrorist conspiracy was afoot. The defense instead painted these materials as merely evidence of youthful curiosity.

In all of the cases, other factors would appear to support the accusation that something suspicious was occurring: Mohammed Atif Siddique was initially interdicted as he attempted to board a plane to Pakistan, something he may have been inspired to do after online conversations with Aabid Khan (BBC, August 18, 2008). The Bradford group gathered with the alleged intention of going abroad to fight, and Samina Malik was passing information on Heathrow security to Sohail Qureishi, a dental technician who was arrested before ever reaching Afghanistan, where he had intended to fight. But in all three cases, the wording of the legislation resulted in a successful appeal mounted by the defense against the initial conviction.

Mohammed Atif Siddique is now likely to return to life as a young man in Scotland; but the implications of his release are hard to gauge. The government has faced criticism in the past over the heavy burden placed upon defendants to prove they are innocent under section 57 and has tried to soften this with later amendments to legislation. But more specifically, the problem of proving whether extremist material that is often widely available is going to be used in pursuit of a terrorist action is something that presents an ongoing problem for British authorities. In one recent case, an individual was picked up after gathering materials during the course of post-graduate research, and was later released with no charges against him. This was a public relations disaster, with the student’s professor declaring that he was no longer going to teach terrorism courses for fear that his students may be detained (Guardian, February 5). In another case, two individuals pled guilty to charges of possessing and disseminating terrorist material, though it was unclear whether they were involved in any direct plotting of attacks (Halifax Courier [UK], December 18, 2007).

With the threat of terrorism and radicalization in the U.K. remaining very real, the government continues to seek ways to intercept individuals before they move too far down the road to action. It increasingly appears that conviction on the basis of possession of extremist material is no longer an available measure.

Notes:

1. The complete court judgment can be found at: https://www.scotscourts.gov.uk/opinions/2010HCJAC7.html
2. The complete Act can be found at: https://www.opsi.gov.uk/acts/acts2000/ukpga_20000011_en_1.
3. https://www.scotscourts.gov.uk/opinions/2010HCJAC7.html.
4. For more on the Khan/Tsouli network, please see Raffaello Pantucci “Operation Praline: The Realization of Al Suri’s Nizam, la tanzim?,” Perspectives on Terrorism, vol.2, no.12, November , 2008; and Evan Kohlmann, “Anatomy of a Modern Homegrown Terror Cell: Aabid Khan et al. (Operation Praline),” September 2008, https://www.nefafoundation.org/miscellaneous/nefaaabidkhan0908.pdf  – others from this network have also been incarcerated elsewhere around the globe.
5. Regina vs. Zafar & Ors, before Supreme Court of Judicature, Court of Appeal, handed down February 13, 2008.
6. Regina vs. Samina Hussain Malik, before Court of Appeal, handed down June 17, 2008.