The judges hit back

The Appeal Court’s decision to strike out the convictions of five young Muslim men is part of a continuing struggle between the government and the judiciary over the rule of law. Now into its sixth major piece of anti-terror legislation, New Labour has trampled over the long struggle for rights and has attempted to bypass ancient and contemporary legal rights as well as the independence of the judiciary.

Yesterday’s decision simply reaffirmed the established principle that intent has to be proved in order for an action to be considered potentially criminal. It also held that reading material downloaded from the internet is not itself an offence, upholding a basic freedom to obtain information. The government is not amused by the judges’ action and is considering an appeal against the ruling.

What the Terror Act 2000 did was to try and circumvent the question of intent through vague, catch-all wording. Section 57 – under which the five were convicted - says a person commits an offence if “he possesses an article in circumstances which give rise to reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation, of an act or terrorism”. Section 58’s wording is even vaguer, and makes it makes it illegal to just possess material.

Striking down the convictions, the Lord Chief Justice, Lord Phillips said: "[Section 57] must be interpreted in a way that requires a direct connection between the object possessed and the act of terrorism." Directions given to the jury by the trial judge did not tell jurors "that they had to be satisfied that each appellant intended to use the relevant articles to incite his fellow planners to fight in Afghanistan". The court of appeal ruled that the "basis upon which the appellants were convicted is shown to have been unsound”. The court said the prosecution's case was so weak, it should not even have gone before a jury.

Imran Khan, the solicitor for one of the freed men, said young Muslims seeking to explore the world of their religion should no longer be victimised: "My client is over the moon. He says it is surreal and cannot see why he has spent the last two years in prison for looking at material which he had no intention of using for terrorism. Young people should not be frightened of exploring their world." His sentiments are admirable but lest any young Muslim (or anyone else for that matter) now thinks that it is safe to start surfing the net again without the state taking an interest, they should think again.

The state has no plans to give up on criminalising the Muslim community in the wake of the Appeal Court’s ruling. On the contrary, the latest so-called counter-terror bill contains measures that ride roughshod over the rule of law, especially the ancient right to be charged and brought before a court or set free. The proposal in the bill for up to 42 days pre-charge detention is tantamount to imprisonment without trial. It is also long enough to inflict severe psychological and physical damage on people picked up under this Gestapo-style plan.

The new measures also include expanding the use of DNA sampling in terrorism investigations and allowing the questioning of suspects after they have been charged. Under the proposals, judges may impose longer sentences where terrorism connections are considered an "aggravating factor". Also, persons convicted of terrorism-related offences will in future be put on a special register similar to that for sex offenders, allowing the government to monitor and prevent them from travelling abroad. The bill is also aimed at cutting out juries in inquests where matters of “national security” are said to be involved. The struggle to defend human rights under the rule of law is far from over.

Paul Feldman
Communications editor