Presumption of Guilt: Islamic State and UK Criminal Law

Islamic State Fighters (Picture Credit: The Guardian)Today the UK terrorism threat level has once again been raised to severe, as a result of ‘developments in Syria and Iraq where terrorist groups are planning attacks against the west’. Within hours of the increased threat being announced, David Cameron was on hand (in Downing Street, not in Cornwall) to  ominously declare a “greater and deeper threat to our security than we have known before”.   

One of the stories frequently trotted out in criminal law classes throughout the UK is that a person can see a child drowning in a pond and pass by without helping, even though it would not be difficult to do so, without any fear of criminal sanction. It’s an effective story. The message is that the UK’s criminal justice systems are so rooted in the liberal notion that people should not be compelled to perform actions against their will under threat of criminal sanction that a person is free to act in such a reprehensible way. But if a person is so moved by the plight of dying children in Aleppo or Homs to travel to Syria to fight against the Assad regime, many commentators are happy to see the situation reversed.

From early this year the UK Government has been increasingly concerned that such individuals will return to the UK as trained and violent jihadist operatives. The Government’s approach to the issue has followed a predictable pattern. In April, as reports circulated over 400 Britons had travelled to Syria since the start of the uprising against the Assad regime, the police launched a national awareness campaign to attempt to persuade relatives who suspected a family member was planning to travel to Syria to report this to the police. The line advanced by Greater Manchester Police was avowedly non-confrontational:

“This is not about criminalising people – it is about preventing tragedies. We want to inform those who wish to genuinely help the Syrian cause how they can do so safely and legally.”

 At this point the security services must have considered the situation to be in hand. After all, the circumstances were not far removed from the Spanish Civil War, when fears had been stoked that Britons like George Orwell fighting on the Republican side would return to the UK as fifth-columnists acting on behalf of the Soviet Union. Then, the rickety provisions of the Foreign Enlistment Act 1870 proved unable to secure convictions.

Under current counter-terrorism law extensive provisions exist to criminalise terrorist training, be it weapons training (section 54 Terrorism Act 2000) or indeed training in any form of activity useful for terrorist ends and with an intent to commit acts of terrorism (section 6 Terrorism Act 2006). Even though the focus of these provisions is on criminalising training in the UK, they are buttressed by the offence of undertaking any ac preparatory for terrorism (section 5 Terrorism Act 2006). This means that any steps taken within the UK in furtherance of an intention to take part in terrorist training overseas, are criminal. For the purposes of these offences it is irrelevant that the terrorist intent (which can mean seeking to overthrow a government) is not directed at the UK Government (but instead at a regime like that in Syria).

This approach appeared to be working. Close contacts between the police and the Muslim community in Portsmouth led to the arrest and conviction (under the acts preparatory offence) in May of Mashudur Choudhury. For all the rhetoric about the police approach not being about criminalising people, 40 Syria-related arrests had been made in the first three months of 2014, a 75% increase on the year total for 2013. For the Independent Reviewer of Counter-Terrorism Legislation, the offences already available to the police have proven themselves useful in the context of returnees from Iraq and Syria: ‘[The] “precursor offences” were applied during the period under review not only domestically but to the actions of those suspected of training or fighting abroad, particularly in Syria.’

David Cameron’s speech this afternoon cited three factors as contributing to the cranking up of the threat level and the shift towards new counter-terrorism powers. First, although the numbers of Britons who have travelled to Syria to fight remains low (latest estimates suggest around 500), the involvement of UK nationals in the murder of James Foley has raised the profile of the threat. This increased profile of UK members of Islamic State comes as the group has surged to form a transnational caliphate across swathes of Syria and Iraq. And at the forefront of the Prime Minister’s mind was the May murders at the Jewish Museum in Brussels (suspected to have been carried out by a French national returned from fighting in Syria): ‘the attack in the Jewish museum in Brussels was perhaps the clearest indication yet that this is an organisation that wants to kill entirely innocent people in pursuit of its agenda.’

In these circumstances, both Bernard Hogan-Howe, the Chief Constable of the Metropolitan Police, and Boris Johnson, London Mayor, have urged curbs on the presumption of innocence. With the rhetoric surrounding the threat reaching such crescendos, such calls were inevitable, and drowned out the Independent Reviewer’s analysis that ‘few of the Muslims who leave Europe to fight in Syria intend at that stage to practise terrorism on their return’. Until today, and despite badgering from Theresa May as Home Secretary, the Prime Minister had held firm against further extensions of counter-terrorism powers (a spokesperson pouring cold water on Johnson’s knee-jerk proposals). Now an announcement on new powers is expected in the Commons on Monday and is likely to reflect the Home Secretary’s wish list.

This sudden frenzy of activity seems to mark the end of the phase of patient application of existing counter-terrorism powers in response to the supposed threat of terrorist returnees, and could undo much of the good work resultant from repealing executive measures such as control orders and running down their replacements, TPIMs. More legislation aimed towards a specific threat emanating from within the UK’s Muslim communities is likely to have a corrosive impact on relations with the police.

Even under the existing law, the police are able to not simply to arrest any returnees, but to extend the threat of criminal sanction over anyone who knew about their plans and failed to inform the authorities (section 38B Terrorism Act 2000). Muslims in the UK could be forgiven for feeling singled out as being under special obligations alien to the ethos underpinning the criminal law. That this power has been very rarely used speaks to the police being well aware that their repertoire of powers already exceeds the limits of usability.

Presumption of Guilt: Islamic State and UK Criminal Law

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