2007:
2006:
To friends and readers,
The BBC story about Samina Malik explains:
The jury found her not guilty of possessing articles for terrorist purposes. [ Section 57 of the Terrorism Act 2000]
But they did convict of the lesser terror charge of collecting articles "likely to be useful to a person committing or preparing an act of terrorism". [ Section 58 of the Terrorism Act 2000]
This gives Malik the dubious honour of being the first woman ever convicted for offences related to Islamist terrorism in the UK.
Samina Malik is the 23-year old English woman who wrote bad poetry under the pseudonym of the ‘Lyrical Terrorist’ among others. This case is ‘profoundly disturbing’; this is the expression used by Gareth Peirce about the same Section 58 under which Malik was convicted.
This unease is shared by Rachel North who has been researching muslim radicalisation for the past two and half years:
There are many things about this case which disturb me (besides the appalling comparison of Owen's devastating poetry with Samina's ghastly scrawls). I think there are a great many Saminas in this country. In suburban bedrooms all over the UK, young men and women of all ages and religions and colours and shapes and sizes are writing bad poetry, listening to horrible lyrics, wearing black clothes, keeping diaries about how they hate the world and nobody understands, slamming the door and not coming down to eat their tea on time.
Things were ever thus.[...]
Samina did not own any bombs, or guns, or quantities of fertiliser or peroxide, or detonators. She owned literature, and she wrote obnoxious lyrics and she seems to me to be as star-struck as the young girls and boys who wish they were ''with the band'', and who write letters and poetry expressing their admiration for the gangster rap thug, the death-metal anti-hero, the groupie-slapping rock star. If you can't drink, or smoke, or get a tattoo, or stay out late at gigs and hang about in trashy bars, then how do you express your rebellion? Samina wore a hijab, when her mother didn't. Samina wrote truly awful poetry. Samina, the shop girl, bored in WH Smiths beeping endless stuff through the tills to the endless airport crowds, then back home in her suburban bedroom, hoped to meet radical boys who thought she was ''cool''. Samina is the first woman to be convicted under the Terrorism Act.
Gareth Peirce pointed out that ‘we now see a new and disturbing phenomenon whereby more than one innocent defendant [is] unable to comprehend the accusation levelled’. It is not only defendants who find it difficult to comprehend that such possession is inconsistent with the right to freedom of thought. Here are Kathz' thoughts:
As children, my brother and I practised stealing handkerchiefs from one another's pockets. We were inspired by Fagin's gang in Oliver Twist. We became rather skilful - but never practised our skills on anyone else. We wrote stories - some in first person - imagining all kinds of extreme scenarios. My brother, aged 6, wrote a letter to a friend which suggested dynamiting the school he attended. (The head was quite worried by this but our mum was, rightly, amused. She knew the difference between play and act.) In my head I explored violent scenarios and I turned some of them into poems. I knew they weren't real. They will never be real.
In my poems, I still explore different characters and different points of view. In my novel (the one I will probably never finish) I explore a range of themes, including violence and murder. It's not real.
It's not real.
I haven't read full accounts of Samina Malik's trial. But so far as I can see, she has done no more than I would in exploring a character or point of view - or in following ideas on the web with curiosity. She has read books. She has visited websites. She has written poems. And she adopted a range of tags, including "Lyrical Terrorist."
I don't think real terrorists advertise their intentions in this way.
But Samina Malik has been told she faces a jail sentence. The charge was collecting articles "likely to be useful to a person committing or preparing an act of terrorism." I have articles like that. I have an Oyster card and a London tube map. I have an encycopedia which probably has more useful advice than the dangerous literature she is said to have collected.
One item of dangerous litterature found in the possession of Malik was the Mujahideen Poisons Handbook. Dick Destiny was asked by the defense to contribute a short analysis concerning this book:
It contains many errors and some rather large fabrications which, while not obvious to laymen, are glaringly apparent to professionals trained in chemistry and biology.
DD has combed over it many times in the past year, tracing its origins and showing that it is fundamentally just an abridged and Bowdlerized copy of a pamphlet that had been published in the US in 1988, Maxwell Hutchkinson's The Poisoner's Handbook (Loompanics).
[...]
Malik was convicted for possessing records deemed to be of potential use to terrorists, including the document pictured above. It has been published many places on the web and the above snapshot was published in a Sunday edition of the Washington Post newspaper in 2005.
Human rights lawyer Gareth Peirce wrote a comment piece in the Guardian about her client Cerie Bullivant and the injustices faced by those charged with control order breaches. The context is is the verdict in the case of Cerie Bullivant where a clear-sighted jury concluded ‘that his every breach, including absconding, was reasonable in the face of the crushing effects of a secret accusation by the state’:
[...] Worryingly, within the "ordinary" criminal process, many defendants now face charges of such vagueness and uncertainty that, even after a trial, in many cases after conviction, they still have no understanding of why what they have done has been ruled criminal.
Defendant after defendant has discovered that a long-forgotten internet search has left an indelible record sufficient for a conviction under the profoundly disturbing section 58 of the Terrorism Act 2000, which allows prosecution for simple possession of an item likely to be useful to terrorists, and carries a sentence of up to 10 years' imprisonment. While the record of use remains permanently, no equivalent reconstruction is available or even required of the mindset of the user at the time. The common elements in each conviction have now become familiar: the defendant had not the slightest idea that such possession was inconsistent with the right to freedom of thought; was not remotely involved in any terrorist activity; and was Muslim.
To be blunt, as most of such prosecutions to have gone through the courts have succeeded, there is now the bleak prospect of imprisonment for thousands of young people, all Muslim, who have similarly accessed the internet prompted by an interest - shared with millions of their contemporaries around the world, Muslim and non-Muslim - in the workings of political or radical Islam. Additionally, possession of the Channel 4 film Road to Guantánamo, or 21st-century Crusaders, a compilation of documentaries from the BBC and elsewhere, is currently being held to demonstrate "radicalisation", a condemnation as conveniently imprecise as the label "subversive" used in the postwar McCarthyite witch-hunts in America.
In the face of a succession of questionable convictions, we now see a new and disturbing phenomenon whereby more than one innocent defendant, unable to comprehend the accusation levelled, yet terrified at the prospect of inevitable conviction, insists on pleading guilty in an attempt to avoid sentences that become ever more severe.
Such increasing contamination of the legal process, capitulating to an insatiable executive appetite for secret hearings when the spectre of national security is invoked, brings about a distortion of what should be the central purpose of the criminal process: achieving justice through predictable certainty and clarity. This week's returnees from Guantánamo faced secret hearings no more unjust than ours. [...]
I recommend you read the article in full. The sentence in bold is my emphasis. I first heard Gareth Peirce in 2006 at an event organised by the Institute of Race Relations (Gareth's keynote is available in MP3). After reading some of her articles and stories about her, I was expecting a strong person with a powerful voice. She is short and speaks with a small voice. However, in the few occasions I was lucky to see her, when she speaks the room goes quiet. Her actions and intensity mean she commands respect.
Other recent news:
On 2007-01-16, the European Convention on Human Rights (ECHR) declared a challenge in ‘S’ and MARPER -v- THE UNITED KINGDOM, which may determine whether fingerprints and DNA samples taken from people who have been acquitted of crimes can be kept by the police, to be admissible and invited the parties to submit additional observations.
Below is the conclusion from the Response to questions posed by the Court upon the issue of its decision on admissibility and further submissions (31 pages). It states that the Court declares a violation of Article 8 (Right to respect for private and family life) and Article 14 (Prohibition of discrimination) of the Convention. It is dated 2007-03-15 and has just been republished by Statewatch.
A decision is expected in February 2008.
Conclusion
100. Both the retention and use of the fingerprints, DNA profiles and DNA samples of innocent persons, which PACE now allows, is a significant interference with the rights of such individuals under Article 8(1) of the European Convention on Human Rights. The information gathered and retained is far more intimate and intrusive than was recognised by the domestic courts; the creation of a record on the PNC, and resulting access to that record by a wide range of public authorities for a wide range of purposes, was not understood in the domestic courts; and the domestic courts failed to appreciate the distinction between DNA samples and DNA profiles.
101. Retention of such information is a fresh invasion of Art. 8 ECHR interests and must be subjected to fresh Art. 8(2) analysis. The Canadian approach to s. 8 of the Charter (the protective mantle only applies while the original justification for the taking of the material is still active) and the German Constitutional Court approach, applying proportionality analysis to each separate privacy invasion, are to be preferred over the approach of the domestic courts in S and Marper.
102. The interference in this case is not justified under Article 8(2) of the Convention because it is disproportionate to the legitimate aims being pursued. R (92) 1 and its explanatory memorandum (as analysed above) support this submission.
103. In addition, even if the Court accepts the government's claim that there are legitimate reasons for retention, the state must also justify rejecting the available 'less restrictive means' of achieving that objective, in particular the more privacy-friendly systems proposed by the Information Commissioner's Office (see exhibit).
104. In assessing whether the UK's approach is within its 'margin of appreciation' regard should be had to the fact that the UK's approach to both DNA databases and fingerprint databases is far more intrusive than that of any other Council of Europe or common law country worldwide. The UK is severely out of kilter with the approach in other democratic systems. Within Europe, the NDNAD of England and Wales is 800% larger than its closest rival in size, Germany's national database.
105. Not only does no other country in the world have a database on the scale of NDNAD or NAFIS, neither does any other country in the world treat its innocent citizens who have previously been incorrectly suspected of involvement in an offence en masse in the same manner as its convicted criminals. Further, the NDNAD and NAFIS have fewer safeguards than other large systems, and the NDNAD does not have an independent custodian monitoring its use and access to the sensitive information it contains.
106. At the very least, the keeping of DNA samples is unjustified. As they are not currently used for forensic purposes no legitimate purpose is pursued by their retention. Other countries with forensic DNA identification systems either destroy the sample immediately once the profile has been generated (New Zealand, Germany, Sweden, Denmark, the Netherlands) or permit the destruction of the sample at an earlier stage than the destruction of the profile or fingerprint (Australia). No other system worldwide retains DNA samples indefinitely. These systems recognise that the information contained in a DNA sample differs markedly from that contained in a DNA profile or fingerprint.
107. The blanket, permanent retention and open-ended use of personal information through the NDNAD, NAFIS and PNC under the PACE regime is unacceptable, and places the applicants at a permanent disadvantage when compared to those who have never been arrested (not on the relevant databases) and the police themselves (on an alternative database for a limited period of time, and with strong safeguards). It equalises the applicants with convicted criminals and, despite official assurances to the contrary, continues to mark them with the taint of criminality.
108. For the reasons set out above, it is submitted that this application should be allowed and the Court should declare a violation of Article 8 and Article 14 of the Convention.
See also the witness statement of Dr Caoilfhionn Anna Gallagher (97 pages), Council of Europe expert on Articles 8 (Right to respect for private and family life), 10 (Freedom of expression) and 11 (Freedom of assembly and association) of the European Convention on Human Rights (ECHR) and co-author of Blackstone’s Guide to the Human Rights Act 1998.