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UK: Broadening the definition of terrorism: criminalising the Mandelas as well as the bin-Ladens, by Nick Moss

01 January 2010

The terrorism Acts of 2000 and 2006 have drastically broadened the definition of what constitutes a terrorist offence. This has led to the criminalisation of resistance movements and those who express support or solidarity.

According to Guardian columnist, Simon Jenkins: “A central tenet of liberalism is a distinction between disagreement and banishment, between distaste for another's point of view and its statutory elimination.” [1] Indeed, the right to freedom of expression is proclaimed as one of the cultural touchstones of liberal democracy: Article 19 of the UN Universal Declaration of Human Rights and Article 10 of the European Convention on Human Rights includes the right to hold opinions and to receive and impart information and ideas. John Milton, in his Areopagitica of 1644 declared:

And though all the winds of doctrine were let loose to play on the earth, so Truth be in the field, we do injuriously by licensing and prohibiting misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?

This commitment to the battle of ideas in the public sphere has always been a shibboleth of all who have proclaimed the virtues of liberal democracy as the best possible state of affairs available to us. If, then, the state abandons its commitment to such “free and open encounter” does it cease to be a liberal democracy in any meaningful sense, or is liberal democracy a paper which will take anything that is written upon it?

The Terrorism Act 2000

The question arises most obviously in relation to the battery of “anti-terrorism” legislation produced since 2000 on the pretext of countering the rise of “Islamic extremism.” The Labour Party upon entering government immediately produced a new anti-terrorist law which was not only permanent but also broader in its scope and application than previous “emergency” and “temporary” legislation. The Terrorism Act 2000 received royal assent on 20 July 2000. The Labour government seized upon the opportunity presented by the Inquiry into Legislation Against Terrorism, chaired by Lord Lloyd of Berwick, set up by the outgoing Conservative administration and tasked to consider the need for counter-terrorist powers in the wake of the emerging Irish peace process and the likely decline in activity by the armed groups. The previous Labour government’s intention was to modernise counter-terrorist powers, to make them permanent and to "maximise the appropriateness and effectiveness of the UK's response to all forms of terrorism" including "new forms of terrorism which may develop in the future". Section 1 of the Act elaborates the meaning of "terrorism" over five subsections. "Terrorism" can mean the threat of, as well as the use of, an action. Section 1(4) makes it clear that this "action" can occur anywhere within or outside the UK. Similarly, the persons, property or government affected by the threat or action itself can be anywhere in the world. The purpose of the action or threat is important for the definition of terrorism. The purpose must be to influence government "or to intimidate the public or a section of the public" for any "political, religious or ideological cause" (S1(1)b and c). The types of action are defined in Section 1 (2) and include "serious violence against a person", "serious damage to property", endangering a person's life, creating a "serious risk to the health and safety of the public", and "seriously" interfering or disrupting an electronic system. "Terrorism" is also defined by the weaponry involved, whether or not it is designed to be used to influence government or the public. Firearms and explosives deployed in any of the actions in S1(2) means that "terrorism" is involved. All of this is a considerable leap from the old definition of terrorism in the Prevention of Terrorism Act (PTA): "the use of violence for political ends" and "any use of violence for the purpose of putting the public, or any section of the public in fear".

Following the definition of "terrorism" the Act goes on to describe the procedures for proscription, which now include appeals and applying for de-proscription. Sections 11 to 23 describe a range of offences including membership of and support for a proscribed organisation. Under 12 (2), it is an offence to arrange a meeting at which a member of a proscribed group speaks, or which supports a proscribed organisation or furthers its activities. The wearing of uniforms or an item of clothing which indicates support for a proscribed organisation is covered by Section 13. Other offences include fund-raising, the use of property for terrorist purposes, money laundering and failure to disclose information about a terrorist offence. Sections 24 to 31 cover the "seizure of terrorist cash" where an officer has a reasonable suspicion that the cash is being used for terrorist purposes. Among the more controversial sections are those concerned with "directing terrorism", collecting information and the possession or any article, such as a coffee jar, which might be of use to terrorism, specifically, section 57 wherein:

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”

and S58 wherein “A person commits an offence if: (a) he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, or (b) he possesses a document or record containing information of that kind.” The onus is on the suspect to prove that items are for another purpose. [2] Thus, the 2000 Act, on the back of the diminished threat from armed groups brought about by the peace process, expanded the definition of “terrorism”, and made permanent the previously temporary legislative armoury. All of this, it is often forgotten, preceded the 11 September events we are now routinely told “changed everything.”

The Terrorism Act 2006

The 2006 Terrorism Act takes all this much further. If the 2000 Act began the process of criminalisation of dissenting ideas by widening the definition of terrorism and extending the process of criminalisation to possession of information, then the 2006 Act makes the outlawing of particular forms of thought explicit. Section 1 states:

1 Encouragement of terrorism

(1) A person commits an offence if—

(a) he publishes a statement or causes another to publish a statement on his behalf; and

(b) at the time he does so—

(i) he knows or believes, or

(ii) he has reasonable grounds for believing,
that members of the public to whom the statement is or is to be published are likely to understand it as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism or Convention offences.

Thus, what is criminalised is not the deed but, expressly, the word. There need not be a deed as such:

4) It is irrelevant for the purposes of subsections

(1) and (2)—

(a) whether the statement relates to the commission, preparation or
instigation of one or more particular acts of terrorism or Convention
offences, of acts of terrorism or Convention offences of a particular
description or of acts of terrorism or Convention offences generally; and

(b) whether any person is in fact encouraged or induced by the statement to commit, prepare or instigate any such act or offence.

It is the discussion of the legitimacy of resistance, in effect, which is criminalised - not simply the act of resistance but the affirmation of such through argument.

Section 2 takes things yet further:

2 Dissemination of terrorist publications

(1) A person commits an offence if he—

(a) distributes or circulates a terrorist publication;

(b) gives, sells or lends such a publication;

(c) offers such a publication for sale or loan;

(d) provides a service to others that enables them to obtain, read, listen to or look at such a publication, or to acquire it by means of a gift, sale or loan;

(e) transmits the contents of such a publication electronically; or

(f) has such a publication in his possession with a view to its becoming the subject of conduct falling within any of paragraphs (a) to (e).

(2) For the purposes of this section a publication is a terrorist publication, in relation to conduct falling within subsection (1)(a) to (f) if matter contained in it constitutes, in the context of that conduct—

(a) a direct or indirect encouragement or other inducement to the
commission, preparation or instigation of acts of terrorism; or

(b) information of assistance in the commission or preparation of such acts.

The criminalisation of solidarity

Thus, the act of facilitating, “read(ing), listen(ing) to or look(ing) at...a publication” itself becomes an act of terror. What flows from this is not only criminalisation through prosecution under the Act, but a wider delegitimisation of dissenting opinion. In the course of the “21/7” trial at Woolwich Crown Court of Muktar Ibrahim, Yassin Omar, Ramzi Mohammed, Hussain Osman, Manfo Kwaku Asiedu, and Adel Yahya, counsel for Asiedu, Stephen Kamlish QC, launched an extraordinary attack on the lawyer acting for several other defendants, the renowned Muslim lawyer, Muddassar Arani Kamlish raised the issue of Eid cards sent by Arani and Co to Asiedu. The cards bear the greeting “May Allah make all the difficult and hard times easy for you and may you all succeed in the trail which awaits you. Lots of love, Muddassar Arani.” A second card bears a quotation “Oh Allah, there is nothing easy except what you make easy and you make the difficult easy if it be your will.” According to Kamlish, this was “rather sinister...I am going to ask you to interpret the circumstances of why she was sending it as meaning “you can either do this the easy or the hard way.” Kamlish also asserted that the quote comes from a “terror manual” written by Dhiren Barot, another of Muddassar Arani’s clients. None of this is borne out by Asiedu’s evidence. Asiedu states that he takes the expression “lots of love” as not improper, but simply an expression of “motherly love.” He states that the quotation Kamlish believes to be “sinister” in fact comes from the Fortress of the Muslim a “small book that’s been issued by the prison...and you can find this outside too, like when you are in difficulty they are some of the things that normally Muslims send to you just to tell you to bear patience and have hope.” (The Fortress of the Muslim is a widely-available book of invocations from the Qu’ran and the Sunnah).

So far from being sinister, Arani and co., as far as Asiedu is concerned, have simply been demonstrating solidarity with a Muslim in jail. Yet Kamlish’s allegations were allowed to stand and were used to trigger a Law Society investigation into Arani and co’s conduct. In the context created by the 2006 Terrorism Act, no words are innocent per se - words from one Muslim to another attract immediate suspicion, and invocations of solidarity can have a “sinister” purpose.

Not only words - the same context of criminalisation and proscription intimates that some should not be allowed to speak, regardless of what they say. The Times launched an attack on Reza Pankhurst [3], who spent four years in Egyptian prisons for membership of Hizb ut-Tahrir (HT). Pankhurst was detained with two other Britons in Cairo in 2002, and the three were adopted as prisoners of conscience by Amnesty International. Pankhurst was tortured with electric shocks. He is now a postgraduate student in the LSE’s government department and teaches classes for the course “States, Nations and Empires”. According to The Times “The presence of one of (HTs) prominent members as a university teacher raises new concerns about Islamist radicalisation on campus”, (HT is not a proscribed organisation). Reza Pankhurst responded that: “Such slurs are a form of Mc¬Carthyism directed against Muslims who speak out" against UK foreign policy.

Do they want Muslims to be engaged in professional fields or would they prefer us to be on benefits? The innuendo, blacklisting and McCarthyite witch-hunts are very counter-productive. I have not said anything which is illegal, or anything that incites violence.

In truth, though, he doesn’t need to. In the context of a deliberate delegitimisation of any and all forms of effective resistance, who is/is not allowed to enter the public sphere is as important as what is said. In his statement Reza Pankhurst notes:

As a teacher, my role is to run the undergraduate seminar in a manner that encourages the students to think about the subjects at hand in a critical and academic manner, in order to develop their thinking. Anyone who suggests that I have done otherwise, or am incapable of doing so for holding certain religious and political opinions, should verify with the Government department and the School to confirm with them how I am viewed both by the students and staff. To suggest I am unable to talk about any issue academically, whether Islamic or otherwise, is an attempt to discredit both myself and my academia without any justification. The fact is that I have had work on Middle Eastern and Islamic politics accepted for academic publication, and that whatever research I have done so far has been appreciated by scholars both in and outside of the LSE. I would like to point out that no other religious or political grouping is treated in such a manner, whereby because someone is a Muslim who believes in Islamic values and the revival of an Islamic State in Muslim countries means that their professionalism is automatically questioned. This is actually a form of discrimination.

In this, Reza is entirely correct - save that the discrimination is legitimated by the attack on dissenting ideas which is at the heart of the Terrorism Act 2006, and the Home Office/security services strategies which flow from it. The intended result is a sanitised, banalised public sphere where some of us are indeed “unable to talk about any issue.”

Somewhat unfortunately for New Labour, the wheels have begun to come off its use of the 2000 Terrorism Act, just as its pursuit of a climate of proscription through the 2006 Act comes to be accepted as the norm. At trial in October 2007 - soon after the Glasgow Airport attack - Mohammed Atif Siddique was convicted of offences under the 2000 Act. The court was told that the 24-year-old sympathised with al-Qaeda and wanted to be a suicide bomber. He also shocked classmates at the city's Metropolitan College with pictures of terrorist beheadings.

Siddique, from Alva, Clackmannanshire, was found guilty of three breaches of the Terrorism Act and a breach of the peace. The offences were said to have been committed between March 2003 and the day that police raided his home in April 2006. He was sentenced to eight years in prison. The most serious charge, which accounted for six years of that sentence, alleged that he possessed computer equipment and other material: in circumstances which give rise to a reasonable suspicion that your possession was for a purpose connected with the commission, preparation or instigation of an act or terrorism. The crime is an offence under the Terrorism Act 2000, but the law also recognises a defence of possession without intention to commit an act of terrorism.

Throughout, Siddique protested his innocence, claiming that when he downloaded material from the internet he was motivated only by curiosity. He denied that he was planning any terrorist attack. His legal team appealed his conviction on that charge and on 29 January 2010 the Appeal Court returned its judgement. The ruling by Lord Osborne, sitting with Lords Reed and Clarke, criticises the way in which trial judge Lord Carloway explained the main Terrorist Act charge to the jury.

During the appeal hearing last July, Donald Findlay, QC, for the defence, said that supposedly damning material produced at the trial was “mere propaganda” and did not mean that Siddique was about to commit a terrorist act. The shopkeeper's son was arrested at Glasgow Airport as he waited to board a plane to Lahore with his uncle. He was planning to spend some time on his uncle's farm in Pakistan. Material found on his laptop computer and in a later search of his home was later shown to the jury. It included religious texts from the Koran, messages from al-Qaeda and praise for “martyrs” in Iraq. Mr Findlay told the appeal court:

It is a hotchpotch, a melange of a whole variety of matters which is, in my submission, of no practical purpose whatsoever to any terrorist.

The lawyer admitted that Siddique “had an intention, an aspiration, to be a suicide bomber”. But, he claimed, the Terrorism Act demanded the commission, preparation or instigation of a definite, particular act before a conviction was possible.

He also argued that Lord Carloway did not fairly explain to the jury that the Terrorism Act 2000 gives an accused a chance to put forward a “reasonable excuse” for possessing material allegedly linked to terrorism. Giving the Appeal Court's decision, Lord Osborne said:

We have concluded that the direction given to the jury in this case in relation to the offence created by Section 57(1) and the operation of the statutory defence available under Section 57(2) of the Terrorism Act 2000, amounted to material misdirection. In these circumstances the appellant's conviction on charge one, which was brought under Section 57(1), in our judgement, amounts to a miscarriage of justice. We are therefore minded to quash that conviction.

Recent appeals have at least brought into focus the draconian extent of the 2000 Act. In R-v-F [2007] EWCA Crim 243 the appellant, a Libyan national, brought an appeal against two counts under the 2000 Act. The first count related to part of one of 21 files contained on a CD downloaded from a Jihadist website, entitled A special training course on the manufacture of explosives for the righteous fighting group until God's will is established. The Crown suggested that this document provides detailed instructions on how explosive devices may be made, and that s58(1)(b) applies to the information contained in it. The second count referred to a handwritten document which, according to the Crown's case, described in detail how a terrorist cell may be set up. It was said to be a “blueprint” for such a cell and pointed a route to Jihad, the removal of Colonel Gaddafi from power in Libya and establishing the rule of Allah. It recommended the acquisition of firearms suitable for action within cities and the need “to try to learn to use explosives and mining”. Accordingly this material, too, fell within s58(1)(b).

In the course of the appeal “Much thought was given to the right to rebel against a tyrannous or unrepresentative regime.” We were shown that John Locke observed in his Second Treatise of Government that the “people” were entitled to resume “their original liberty” when the legislators sought to “reduce them to slavery under arbitrary power”. The United States Declaration of Independence (1776) having identified the famous “self evident” truths, added that “whenever any Form of Government becomes destructive of these ends, it is the Right of People to alter or to abolish it, and institute new Government”. The preamble to the Universal Declaration of Human Rights 1948 acknowledges the possibility of citizens having recourse “as a last resort to rebellion against tyranny and oppression”. Article 1 of the International Covenant on Civil and Political Rights (1966) underlines that “all peoples have the right to self determination”.

All of this was rehearsed and rejected by the Court, which concluded:

What is striking about the language of s1, read as a whole, is its breadth. It does not specify that the ambit of its protection is limited to countries abroad with governments of any particular type or possessed of what we, with our fortunate traditions, would regard as the desirable characteristics of representative government. There is no list or schedule or statutory instrument which identifies the countries whose governments are included within s1(4)(d) or excluded from the application of the Act. Finally, the legislation does not exempt, nor make an exception, nor create a defence for, nor exculpate what some would describe as terrorism in a just cause. Such a concept is foreign to the Act. Terrorism is terrorism, whatever the motives of the perpetrators...In our judgment...the terrorist legislation applies to countries which are governed by tyrants and dictators. There is no exemption from criminal liability for terrorist activities which are motivated or said to be morally justified by the alleged nobility of the terrorist cause.”

The legislation is designed to criminalise the Mandelas as well as the bin-Ladens. It is resistance which is criminalised under the 2000 Act, and effective discussion of the means and ends of such resistance, which is prohibited by the 2006 Act.

Conclusion

It is unlikely that the would-be jihadist will not be deterred by the prohibitions of the 2006 Act. The material proscribed is easily located both online and legitimately elsewhere. For instance, Hurst and Co publish Architect of Global Jihad - The Life of Al-Qaeda Strategist Abu Mus'ab Al-Suri by Brynjar Lia. This includes two chapters of The Global Islamic Resistance Call. In any event, to presume that prohibition would discourage jihadist activism assumes that the material - rather than events on the ground - triggers the thought, and the state isn’t that naive. The purpose of prohibition is wider - to restrict the scope of what is legitimately discussed within the public sphere - to restrict what might be brought to thought, such that the context of imperialist wars and resistance is no longer that “possibility” of citizens having recourse ”as a last resort to rebellion against tyranny and oppression” rejected by the courts in R-v-F. It is that “possibility” which the 2006 Act is intended to exclude from public debate, to deny such ideas the “deference that their importance deserves”. [4]

Such being the case, it is significant that the prohibition is now being challenged courageously in the realm of the arts. Xenofon Kavvadias, a UK based Greek artist intends to mount an exhibition featuring texts such as The Islamic Ruling on the Permissibility of Martyrdom Operations, a justification for suicide bombings used by Chechen extremists. Kavvadias wants to install a bookshelf in an art gallery stocked with texts presented in court to secure terrorism convictions. They include Defence of Muslim Lands by Sheikh Abdullah Azzam, a jihadist who influenced Osama bin Laden, The Mujahideen Poisons Handbook, which details how to kill using homemade ricin and how to make poisons from tobacco and potatoes, and the Manual of Afghan Jihad (also known as the al-Qaida Manual), which explains how to plan, finance and execute terror attacks. He intends to create a tranquil space where such texts can be perused without fear and be seen for what they are, alongside others including texts by Meir Kahane, the CIA Psychological operations in guerrilla warfare manual, the Ministry of Defence’s Operation Banner (an analysis of military operation in Northern Ireland) and Evolution of a revolt by T E Lawrence, and thereby “to use art to reclaim something that is lost right now: freedom of publishing and freedom of expression”. Xenofon will be seeking to stage his exhibition in the UK and will be looking to activists, lawyers and civil rights groups to support him and demonstrate solidarity with him. His “grand project is to design a library [of banned books] for each country to create a portrait of a country's demons and fears.” [5]

The political philosopher Jacques Ranciere, has commented “The images of art do not supply weapons for battles. They help sketch new configurations of what can be seen, what can be said and what can be thought, and, consequently, a new landscape of the possible.” (Jacques Ranciere “The Intolerable Image”, in The Emancipated Spectator (Verso, 2009.) Interventions such as those proposed by Kavvadias create a space where “what can be thought” is the possibility of that “last resort to rebellion against tyranny and oppression" which the 2006 Act is designed to render “unthinkable.”

Sources

1. The Guardian 2.2.10.

2. Statewatch Vol. 10 no 5 (September-October) 2000

3. The Times 15.1.10.

4. R–v-F at para 26

5. The Guardian 1.1.10.

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