Slowly, oh so slowly, Britain’s judges are rescuing Britain’s values from the
depths to which Tony Blair and his home secretaries plunged them in the
knee-jerk response to terrorism. The acts passed by Jack Straw, David
Blunkett and Charles Clarke from 2000 onwards did not create a British
Guantanamo Bay, but they did signal a shocking collapse in British justice.
The present home secretary, Jacqui Smith, wants to further that collapse.
Last week the Court of Appeal handed down two trenchant verdicts in an attempt
to inject common sense into nonsensical terror laws. One implicitly demanded
an apology and compensation from the government for a wholly innocent
airline pilot imprisoned in 2001 after the police and Crown Prosecution
Service lied to a court that he was the “lead instructor” of the 9/11
hijackers. He had merely been an Algerian who once trained in Florida. Every
shred of evidence appeared to have been fabricated by police in America –
possibly obtained under torture – and used without question by the British
police.
The pilot was released after five months of being treated as a terrorist in
Belmarsh jail, without explanation, apology or even exoneration. His career,
reputation and family were in ruins. The appeal court castigated the police
and Home Office and told the pilot, in effect, to sue them for all he could
get.
These are the same police who, in January this year, arrested six Pakistanis
arriving at Gatwick to prepare the visit of their president, Pervez
Musharraf. They were held for 21 hours “on suspicion of operating or
planning a terrorist activity”. The police claimed they were members of a
sinister group, the PML(Q), possibly responsible for Benazir Bhutto’s
murder. They admitted membership on the grounds that the PML(Q) is the
governing party of Pakistan, which the police refused to believe. These are
the police who are demanding 42-day detention powers.
The second High Court judgment was, in effect, against the 2000 Terrorism Act
itself, notably its section 57 which criminalises the possession of
literature (or a download) that “creates a serious risk to the health and
safety of the public . . . for the purpose of advancing a political cause”.
The act, considered near unenforceable by many lawyers, was voted through by
Labour MPs without batting an eyelid.
Last year the law led to the imprisonment of four students and a schoolboy for
having “extremist material on their computers”. There is no argument that
the stuff was nasty and the students might have fallen into bad company had
they carried out their plan, or possibly fantasy, of going to Pakistan. But
as a solicitor for one of them said, it was like sending someone to prison
for reading Mein Kampf. Their crime, said the trial judge, was that of being
“intoxicated by extremism”. He still imprisoned them.
Intoxicated by extremism better describes the state of mind of the judge Peter
Beaumont, the recorder of London, and much of Britain’s political class. In
sentencing the students, he implied that the possession of inflammatory
material was evidence enough of an intention to inflame, a view to which the
Court of Appeal took strong exception. This suspension of “mens rea”, that
guilt should require an intention to commit a crime, was a feature of all
Blair’s terrorism laws. At one point in 2005 the Home Office was even
drawing up a list of “permissible” terrorisms in past history so academics
would know which they could “glorify and exalt”, probably the most fatuous
piece of drafting in British legal history.
It was on the same basis that a court last July imprisoned Yassin Nassari, a
teacher of Arabic, for possessing plans of how to make a rocket (such as
lurked in many a student rucksack in the 1960s). The judge admitted there
was “nothing to indicate that any actual terrorist use would have been made
[of the material] by anyone”, while the prosecution said merely that Nassari
“knew how to download” and that it was “possible that his research could
have ended up in the hands of individuals and groups willing to put it into
practice”.
Nothing to indicate . . . possible that . . . could have ended up in . . .
such is the casual phraseology of the war on terror. Yet on the basis of
these hypotheticals, Nassari was put away for 3½ years.
Every prediction that Britain’s burgeoning terrorism laws would pollute
justice is vindicated by these cases. The concept of preemptive
imprisonment, like that of preemptive war, should have no place in an open
society. Yet it tallies with revelations last week that ministers, who claim
to be in control of security, no longer regard lawyer/client relations as
sacred and that prison interviews are routinely bugged by the police.
Officers who object, such as the whistleblower Mark Kearney, can expect to
lose their jobs. The authorities now have extraordinary powers to arrest and
convict Britons on evidence that may be tainted by American interrogation
techniques or by the sheer ignorance of the police and security services.
It is to this secret establishment that Smith wants to give discretionary
power to incarcerate suspects without charge for an undecided number of
months. It is this establishment that is still determined not to reveal the
extent of its wiretap activities in court. It is this that has equipped
Britain with the most extensive network of surveillance in the free world.
It is this that intends to computerise the personal, occupational, medical
and family records of the entire nation, on bases that everyone knows will
be insecure.
The customary response is that this drift towards authoritarianism, coupled
with an extension of state discretion, is necessary in the so-called “post
9/11 world”. I do not buy this. The threat from fascism and communism in the
20th century was real. It was war, hot and cold. These ideologies could have
defeated Britain militarily and the threat justified nuclear defence and
some curb on civil liberty.
No serious person can imagine a Britain conquered and ruled by fundamentalist
Islam. It is pure fiction. Any fanatic can set off bombs, as once could the
Irish. The cult of the suicide bomber enhances the menace of explosive
devices and that requires more assiduous policing. But such few bombs as get
through are the price we pay for a free society. Democracy is never a free
lunch.
The claim of ministers that militant Islamism constitutes “a threat to British
values”, let alone to western civilisation, is defeatist nonsense. The
threat to British values at present comes not from militant Islam but from a
hysterical public reaction to it. Elevating a criminal act into a military
and political threat is stupid because counter-productive.
Answering “extremist intoxication” with extremist repression pours petrol on
the flames. The rash of antiterror legislation over the past seven years has
been a panic measure that has led to injustice and fury on the part of far
too many of its victims and their communities. It has been bad law.
I have no problem in getting tough with terrorist conspirators or blatant
trouble-makers, as in refusing entry to undesirable foreign mullahs. I have
no problem in kicking out those who abuse Britain’s ever-generous
hospitality. Nor am I too worried about their fate in being returned to
their country of origin.
In a similar vein, I regard the spread of “faith” multiculturalism in schools,
and all sectarian institutions funded by the state, as an accident waiting
to happen. Look at Northern Ireland. There is no doubt that the antics
engendered by the more rabid forms of multiculturalism can damage urban
communities.
But none of this justifies collapsing the values of justice and fairness on
which British law has long been based. The paradox, espoused by the present
government and mostly unchallenged by the opposition, that defending values
requires infringing them, is unjustified. That habeas corpus must be
restricted, that mens rea must be suspended, that reading and talking and
thinking can be crimes, all are ideas so abhorrent to British people that
one might imagine them the product of an Al-Qaeda plot inside the Home
Office.
This week the only conclusion I can reach is one I would never have predicted.
Thank goodness for judges with the guts to save British values from the
present crop of British politicians.
