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Freedom of speech and anti-terror law stories from 2008

Still in catching-up mode, here are some stories I didn’t manage to cover on Labour’s anti-terror laws and freedom of speech from 2008:

  • First off is the case of the student arrested for downloading a document, an alleged al-Qaeda training manual, for his research, that was freely available on a US government website. UK Liberty, Samizdata and Harry’s Place all covered this story. The Register went into the case in some detail:

    An issue that refuses to go away is whether some academic research now needs a license from the local police. Regular readers may remember the case of Hicham Yezza and Rizwaan Sabir, which we reported on in May.

    This kicked off when Mr Sabir, a postgraduate student at Nottingham University, asked Mr Yezza to help him out by downloading a document described as an “Al Qaeda Training Manual”.

    Bad move. The matter was reported to the University authorities, who informed the police. They arrested the two and held them for the best part of a week. At the end of that time Rizwaan Sabir was released but Hicham Yezza was transferred to the custody of the immigration authorities for deportation. Inquiries had turned up some irregularities in his status.

    Outwardly, this is unfortunate but explicable. The University authorities decided that they were not a competent body to investigate, so involved the police, and the police did their job. Events hinge on section 58 of the Terrorism Act 2000, which makes it an offence to possess material that might be useful to someone planning to carry out terrorist offences. But never fear, “it is a defence for a person charged … to prove that he had a reasonable excuse for his action or possession”.

    So here we see the impact of part of the Terrorism Act 2000 on the ability of students to access materials for their research, i.e. on academic freedom. The Register goes on:

    …It is what follows – and the entire thrust of the law - that is questionable. First, the law: If you possess dodgy material, it is for you to explain why. Parliament could have legislated the other way around - it could have made it a crime to possess such material “with intent”. But it didn’t, so now you must prove yourself innocent.

    Following Mr Sabir’s release, the police wrote to him. Allegedly, they warn that he risks re-arrest if found with the manual again and add: “The university authorities have now made clear that possession of this material is not required for the purpose of your course of study nor do they consider it legitimate for you to possess it for research purposes.”

    And:

    What the Police appear to be saying is that you can be given the all-clear as a bona fide researcher of terror material in the morning – then re-arrested the same evening for the same offence. Surely not, one might think, but that possibility is within the bounds of the Law.

    It doesn’t help that the list of materials that could assist a terrorist is very wide. It would certainly encompass broad swathes of chemistry, physics and biology – as well as current military training. This has therefore provoked the accusation, in some quarters, that the Act is likely to be applied in a selective and racist fashion – with individuals whose skin is not quite white being far more likely to be asked to justify what is on their bookshelves or hard drive.

    A subsequent case, that of Samina Malik, the “lyrical terrorist”, involved the appeal court quashing her conviction for offences under section 58:

    Is the “al-Qaeda manual” still an easy get into jail card? The UK Court of Appeal yesterday quashed the conviction of Samina Malik, aka the “Lyrical Terrorist”, for possession of information useful for terrorist purposes under Section 58 of the Terrorism Act 2000, but the Crown Prosecution Service still views this and other widely circulated documents as prima facie evidence of wicked intent.

    So the jury’s still out, as it were. The Court of Appeal ruled in Malik’s favour because it felt there was “a very real danger that the jury became confused”, and that her conviction was therefore unsafe. The prosecution conceded this, but Sue Hemming of the CPS counter-terrorism division said that although some of the 21 documents that had been used in Malik’s trial could no longer be seen as giving practical assistance to terrorists, “other documents in her possession, including the al Qaeda Manual, the Terrorist’s Handbook, the Mujahideen Poisons Handbook and several military manuals, clearly retain that potential.”

    Hemming added that Malik had already spent time on remand and would be likely to receive a non-custodial sentence if a further trial were pursued, and said that the CPS had therefore decided not to seek a retrial. Which you might well take to mean ’she’s guilty as hell, but we’re not going to bother with her, so there.’

    Section 58 covers the collection or holding of information likely to be useful for terrorism, but doesn’t require any specific terrorist intent, and is therefore particularly useful for sweeping up small fry, wingnuts and thought criminals. The three documents referred to by Hemming are all widely distributed on the Internet (sometimes, indeed, by the US Department of Justice), and have been used frequently in UK terrorist prosecutions.

    In yesterday’s judgment, Lord Phillips said that an offence would only have been committed if the material was likely to have provided practical assistance to a person preparing an act of terrorism, and that mere propaganda wasn’t covered by Section 58. The Court of Appeal has therefore clarified the law, ruling out documents that are just plain nasty, but leaving in ones that are probably nasty, and at least arguably practical.

    It seems to me an A to Z of London, or any other city, would provide “practical assistance” to someone preparing an act of terrorism.

  • Back in August, the UN’s Human Rights Committee criticised the British government for enacting laws that restrict freedom of speech:

    The government has been accused of creating laws that have a chilling effect on freedom of expression in the UK in a sharply critical report from the United Nations’ committee on human rights. The report calls for the reform of Britain’s libel laws and controls introduced under recent terrorism laws.

    The government’s use of the Official Secrets Act to prevent issues of public interest being published is also condemned in an intervention from the UN which warns that public servants are being gagged even where national security is not at risk.

    The criticisms are made as part of the committee’s analysis of a report which the UK is required to submit to the UN every three years, appraising human rights in its jurisdiction.

    Among the problems identified, the UN says:

    · Terrorism Act 2006 provisions covering encouragement of terrorism are too broad and vague, and should be amended so that their application does not lead to “a disproportionate interference with freedom of expression”.

    · Libel laws should be reformed to end so-called “libel tourism”, whereby wealthy foreigners have gone to the high court to sue over articles that would not warrant action in their own country.

    · Powers under the Official Secrets Act have been “exercised to frustrate former employees of the crown from bringing into the public domain issues of genuine public interest, and can be exercised to prevent the media from publishing such matters”.

    The committee also warns that, in the age of the internet, Britain’s unduly restrictive libel laws create the danger of affecting freedom of expression worldwide, contrary to a UN covenant on civil and political rights which guarantees the right to freedom of speech and to exchange ideas and information “regardless of borders”.

  • Spy Blog covered a clause in the Counter Terrorism Bill that looks as if it may impact on journalists, bloggers and photographers.

    The clause is now on the statute books as clause 76 of the Counter Terrorism Act 2008. It amends the Terrorism Act 2000 with a new section 58A that makes it an offence to elicit or attempt to elicit information about an individual who is or has been a member of Her Majesty’s forces, a member of any of the intelligence services or a constable, and where that information is of a kind likely to be useful to a person committing or preparing an act of terrorism. It also makes it an offence to publish or communicate such information. It is a defence for a person charged with the offence to prove they had a reasonable excuse for their action.

    Note that we’ve seen similar wording for the offence of possessing information in section 58 of the Terrorism Act 2000. Again we have a broadly defined, vague offence where you are required to show your action was reasonable, rather than the presumption of innocence applying. Note further that a photograph of a police officer is useful to someone committing or preparing an act of terrorism. As Spy Blog points out:

    “attempts to elicit information” is an excessively wide, “catch all” power, and should never have been allowed into the wording of the Act, but Parliamentary scrutiny , such as it was, was successfully diverted by the Government towards the controversial “42 days internment without charge” debate, allowing this, and other controversial sections of the Counter Terrorism Act 2008 through without opposition.

    A mainstream media outlet, freelance journalist or blogger, political activist, street or demonstration photographer or any innocent member of the public, might be able to claim that their research or photograph (or conceivably, even their perfectly legal Freedom of Information Act 2000 request) etc. was in the public interest, but, once they have been arrested on a Terrorism charge, it will be too late to continue with a normal life - they will have been branded as terrorists, even if they are entirely innocent.

    The threat of forced arrest, perhaps via a dawn raid by armed Counter Terrorism Police, followed by DNA sampling, fingerprinting, photography, and searches of your property, confiscation of your computer equipment (often for months on end, whilst it awaits forensic examination) and the subsequent blacklisting as a “terrorist suspect” on UK and foreign government and police databases, must surely frighten many people from daring to comment or publish on this, or similar stories.

    This Section 58A of the Terrorism Act 2000 should never be commenced, and should be repealed as quickly as possible.

    It does nothing to deter real terrorists, and will be used to harass political opponents and to try to suppress embarrassing facts about military, intelligence agency or police personnel, forces and agencies, especially those with lax or inept or treasonous operational or computer or communications security. Similarly, based on previous scandals, it will be used to try to hide or cover up individual or institutional corruption or other abuses of power, from public scrutiny.

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