Counterterrorism Blog

The appeal court in London today overturned the convictions of five young Muslim men for possession of extremist literature. The success of the young men’s appeal is likely to have ramifications on other cases in the UK. The full judgment can be read here and is highly informative as it shows how precise the legal definitions surrounding terrorism need to be. Specifically at issue in this case was section 57 of the UK Terrorism Act 2000 - which states, that an individual commits a terrorist offence if they are in possession of an “..article in circumstances which give rise to a reasonable suspicion that his possession is for purposes connected with the commission, preparation or instigation of an act of terrorism”. The history of this offence goes back to 1996 when it was apparent that terrorists were making use of everyday items to make bombs.

The case against Irfan Raja, Awaab Iqbal, Aitzaz Zafar, Usman Malik and Akbar Butt was as follows. Four of the five men were students at Bradford University. The fifth, Raja was a schoolboy in Ilford. Raja made contact with Iqbal through the Internet messaging service MSN. On 24 February 2006 Raja left his home with his passport, leaving a martyrdom song on the family computer and a letter under his mattress stating that he had gone to take part in conventional warfare abroad. His family contacted the police who examined the contents of his computer. The hard drive of the computer revealed a significant amount of religious or political material, some of it described as extreme.

Raja had in fact gone to Bradford using his bus ticket paid for by Iqbal. He stayed in Bradford for a few days at a house Iqbal and Zafar lived and bought with him three discs he had made containing select material from his computer. His family convinced him to return home, which he did whereupon he was arrested. Subsequent police investigation led them to arrest the other four men who were also in possession of radical Islamic material. Further MSN IM chats were also found including a discussion between all four men and a cousin who lived in Pakistan (who was described by police as a foreign based terrorist). In the course of the IM’s they asked how to travel without raising suspicion.

The prosecution argued that possession of extremist literature in this case was a crime under section 57 of the Terrorism Act. However, the appeal focused on the fact that mere possession of extremist political or philosophical Islamic material (as opposed to bomb making instructions) was not in itself a crime. Timing was also a significant issue as it was not clear that their purpose was to act with immediacy and not at some remote point in time. As the case was made, the appeal judgment over-turning the convictions does seem reasonable. If possession of extremist literature were in itself a crime then many terrorist researchers would be having some serious concerns. However, there is little doubt that this group of men should have been under surveillance and disrupted - it is the timing of the disruption that remains the key and this is where the legal and security systems of western governments are still trying to find the right balance. In an age of suicide bombers is a very difficult operational decision when to make arrests. Clearly, if one of the members of the group had moved significantly toward traveling to Pakistan or Afghanistan then the offence would have been completed to a degree the court would have had little complaint with. The decision to disrupt this group at an early stage of their activities led to the subsequent reliance on weaker evidence.

With regard to the cyber-jihad this ruling is also important as it shows how online activity should be coupled with real-life action of some kind before a criminal offence has been committed. There are clear ways to now show this connection as Evan’s Kohlmann’s excellent work has demonstrated and I am sure he will continue to be in high legal demand. Above all this ruling shows that there is a long way to go until western legal systems have adapted to the threat from Internet based Islamist terrorism. It isn’t a major setback for the police, as some parts of the media have reported, it is a necessary correction.