The Shift to Risk Management

Mohammed Atif Siddique, a 21-year-old British-born Muslim student from Alva, a small town in Clackmannanshire, Scotland, was detained at Glasgow International Airport on 5 April 2006 as he was boarding a flight to Pakistan. He was released on the same day, pending an examination of his laptop,³ which later revealed to contain what the prosecution described as ‘terrorist propaganda, partly emanating from al-Qaeda, glorifying terrorism…’ (Lord Carloway’s Statement, 23 Oct 2007). This material was purportedly to be used in the ‘recruitment of English speakers, notably British nationals’ (Lord Carloway 23 Oct 2007). A week later, Siddique’s family home was raided at dawn by the police and security services, who arrested and charged him under the Terrorism Acts 2000 and 2006. More than a year later, and after a trial lasting 19 days, he was found guilty of four terrorism-related offences⁴ and, on 23 October 2007, sentenced to 8 years’ imprisonment (HMA v Mohammed Atif Siddique). When sentencing Siddique, the Rt Hon Lord Carloway explained that:

The Terrorist Acts are designed by Parliament to stop, or at least reduce the risk of, terrorist outrages before that imminent stage is reached by creating a number of specific crimes, some of which you have been convicted of. These crimes enable a potential terrorist to be arrested, tried and ultimately convicted before actually committing whatever outrage he had in contemplation. (Lord Carloway 23 Oct 2007)

On the day the jury delivered its verdict, Aamer Anwar, Siddique’s lawyer, read a statement to journalists outside the courthouse criticising the Scottish judiciary, the jury and the media reporting of the case. On this occasion, Anwar failed to explain if the statement he was reading represented either his client’s response to the court’s decision or his personal opinion on the outcome of the trial. He started by claiming that his client had been ‘found guilty of doing what millions of young people do every day—looking for answers on the Internet’, and went on to add that the verdict was a tragedy for justice and freedom of speech:

It is farcical that part of the evidence against Atif was that he grew a beard, had documents in Arabic which he could not even read and downloaded material from a legitimate Israeli website… The sensational and biased reporting of this case breached the most important principle of justice – that people are innocent until proven guilty… Atif Siddique states that “he is not a terrorist and is innocent of the charges, that it is not a crime to be a young Muslim angry at global injustice”. The prosecution was driven by the state, with no limit to the money and resources used to secure a conviction in this case, carried out in an atmosphere of hostility after the Glasgow Airport attack and ending on the anniversary of 9/11. In the end, Atif Siddique did not receive a fair trial and we will be considering an appeal.⁵

Lord Carloway described Anwar’s statement as ‘untrue or misleading’ and referred it for contempt of court (Scotsman 30 April 2008). Thus, Anwar became the first lawyer in UK legal history to be charged with contempt of court over a statement made after a trial and outside the courthouse. After considering all the relevant material in detail, a panel of three judges at the High Court of Justiciary in Edinburgh cleared Anwar of contempt of court, but they did criticise his conduct, reminding him that ‘any solicitor practicing in the High Court of Justiciary owes a duty to the court’, which ‘implies certain obligations upon such a solicitor’ to ensure that his public utterances are accurate and not misleading (see Aamer Anwar Case – Judgement Summary, 1 July 2008).

Although the cases of Siddique and Anwar raise separate legal questions concerning terrorism offences and contempt of court, they are nonetheless parts of the same discursive process aimed at managing the risk of terrorism. As Lord Carloway, the trial judge, explained above, Siddique had been convicted of a crime before he could actually commit it; the law is then used to remove a potential ‘risk’ to national security. Inaccurate as Anwar’s statement might have been from a legal standpoint, it constituted an attempt to contextualise Siddique’s actions and intentions, the trial process leading up to his conviction and the 8-year sentence he was handed by the court, in the broader political setting of what it means to be a young Muslim living in post-9/11 and post-7/7 Britain. This broader social context can only be understood by taking into consideration the problematic relationship between mainstream British culture and politics, on the one hand, and British Muslims, on the other. A study conducted by Voas and Ling (2010), on behalf of the British Social Attitudes Survey, shows, for example, that more than half of the British population are suspicious towards Muslims and perceive them as a threat to their national identity and security (also see Telegraph 9 January 2010).⁶ The experience of living in a society where more than half of the population considers one as a threat to its national security and cultural identity is an important part of the social context which is excluded from the judicial gaze. As argued in Chap. 4, modern liberal law dislodges from their social contexts the actions and intentions of individuals brought before the law, before examining them legally. However, in anti-terrorism cases where the law is employed to ‘stop, or at least reduce the risk, of terrorist outrage’ (to borrow from Lord Carloway 23 Oct 2007), the modern legal system’s tendency to decontextualise actions is enhanced. It could even be argued that the sociocultural context becomes completely irrelevant to any legal considerations based on RMS. Moreover, since societal risks are constructed socially, law must ‘construct’ terrorist events, which have not yet occurred, before it can eliminate them entirely. This does not suggest that law’s ‘construction’ is not based on realistic scenarios and predictions of unforeseen future terrorist attacks; however, it does raise questions about the facticity of threats, which are constructed internally by the law, as a basis for prosecuting teenagers and young Muslims for what may, arguably, be described as “thought crimes.” As we shall see in the coming sections, anti-terrorism laws are based on the presumption that there will be a constant threat to national security, which also means that the law must continually construct threats, if it is to be effective. As Zedner (2003, p. 155) will explain below, it amounts to reversing the logic of crime control: ‘instead of crime requiring crime control…, crime control requires that there will be crime’. These points will be unfolded gradually in the next sections, wherein Samina Malik and Hammad Munshi’s cases are discussed and placed in the context of the development of anti-terrorism legislation.

Malik and Siddique’s cases are similar insofar as they both concern young British-born Muslims convicted of possessing material downloaded from the Internet. However, the symbolic aspects of the UK’s counterterrorism policy, i.e. its potential to discipline young Muslims while pre-empting the risk they might pose to national security, are pronounced more clearly in the case of Malik.

Samina Malik, a 23-year-old British-born Muslim who worked as a shop assistant at Heathrow Airport, became the first woman convicted under the Terrorism Act 2000. The police arrested Malik at home, where she lived with her parents and siblings, in October 2006 after searching her room and finding her in possession of records likely to be used for terrorism purposes. This material, which included The Al-Qaeda Manual, The Mujahidin Poison Handbook, Encyclopaedia Jihad and How to Make Bombs, all downloaded from the Internet, became the basis for the prosecution’s prima facie evidence. Some of these documents had been downloaded, opened, then deleted’ (R v Malik [2008] All ER (D) 201 (Jun)). On the basis of this evidence, Malik was charged with two counts of offences contrary to Sections 57 and 58 of the Terrorism Act 2000:

Count one alleged that the defendant had “in her possession an article, namely, a computer hard drive with a collection of documents on it, in circumstances which gave rise to a reasonable suspicion that her possession of it was for a purpose connected with the commission, preparation or instigation of an act of terrorism,” contrary to s 57 of the Act. Count two alleged that she had had “in her possession a record, namely, a computer hard drive with a collection of documents on it, which contained information that was likely to be useful to a person committing or preparing an act of terrorism,” contrary to s 58 of the Act. (R v Malik [2008])

At the Old Bailey, the court heard that Malik had posted poems on extremist websites under the screen name ‘Lyrical Terrorist’, ‘praising Bin Laden, supporting martyrdom and discussing beheading’ (BBC News 8 November 2007). In addition, she had written on the back of a WHSmith receipt, ‘The desire within me increases every day to go for martyrdom’ (Sun 8 November 2007). She told the court that her poems were ‘meaningless’ and she had used the nickname ‘Lyrical Terrorist’ because she thought that it sounded ‘cool’ (Independent 11 November 07). According to the Court of Appeal:

Following her arrest, the defendant wrote several pages of notes in which she gave an account of how, two or three years earlier, she had been influenced by radical Islamic preachers and, as a result, had downloaded articles, books, talks and videos from the Internet and had started to write poetry about killings and beheadings. That was something she had come to regret and, for around two years, had had no further dealings with extremist material. (R v Malik [2008])

In response, the prosecution argued that the records Malik had in her possession strongly indicated that she was ‘deeply involved with terrorist-related groups’ (BBC News 8 November 2007). The prosecution also argued that she was ‘an “unlikely” yet “committed” Islamic extremist, with a library of material which she had collected for terrorist purposes’ (Guardian 9 November 2007). The head of the Metropolitan Police Counterterrorism Command supported the prosecution by pointing out that:

Malik held violent extremist views which she shared with other like-minded people over the Internet. She also tried to donate money to a terrorist group… She had the ideology, ability and determination to access and download material, which could have been useful to terrorists. Merely possessing this material is a serious criminal offence. (BBC News 8 November 2007)

The jury deliberated for 19 h before reaching its verdict. Malik was found not guilty of an offence under Section 57 of the Terrorism Act 2000, which criminalises the possession of an article for terrorist purposes, but guilty under Section 58, according to which an offence is committed if a person (a) collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism or (b) possesses a document or record containing information of that kind. The maximum sentence at Crown Court is 10 years.

The judge bailed Malik on ‘house arrest’ and ordered reports into her family background ahead of sentencing on 6 December 2007. He told Malik that her ‘crime was on the “margins” of the offence of which she was found guilty’ and admitted that she was ‘of “good character” and from a “supportive and law-abiding family who are appalled by the trouble that you are in”’ (Guardian 6 November 2006). The judge also admitted that Malik was in many ways ‘a complete enigma’ to him. Malik, who had already spent 5 months in custody, was sentenced to 9 months’ imprisonment, suspended for 18 months, under Section 58 of the Terrorism Act 2000.

However, on 17 June 2008 the Court of Appeal quashed her conviction after the Crown conceded that it was unsafe. In his judgement, Lord Phillips explained:

There had been a case to answer, based on the seven documents identified by the prosecution; however, the problem was that the case had been left to the jury on the basis that the other documents were also capable of forming the basis of the conviction. In relation to the issue of “practical assistance” to a person committing or preparing an act of terrorism, the jury had not received a direction as to the issue of practical utility. There was not a great deal of difference in directing the jury that the document or record had to be likely to be useful, and directing them that it was likely to be of practical utility. In the right context, that direction might be unexceptionable. However, the primary problem in the instant case was that the jury had considered not merely documents which were capable of practical utility but also a large number which were not. There was scope in the instant case for the jury to have become confused. In all the circumstances, the conviction was unsafe. (R v Malik [2008])

The ‘other documents’ which were presented to the jury as ‘capable of forming a conviction’ included Malik’s poetry and other personal records.

Sue Hemming, Head of the Crown Prosecution Service’s Counterterrorism Division, responded by explaining that Malik had not been prosecuted for her poetry but for possessing documents that could provide practical assistance to terrorists. In addition, while working at Heathrow Airport, she had supplied information about airport security procedures to Sohail Qureshi, who later pleaded guilty to a terrorist offence and, subsequently, was jailed for four-and-a-half years for ‘planning to travel to Afghanistan on a mission of “revenge” against British troops’ (Telegraph 17 June 08). Hemming also added that since Malik’s conviction, the meaning of Section 58 of the Terrorism Act 2000 had been clarified in a Court of Appeal decision.⁷

This case raises several interrelated questions. Firstly, it remains unclear whether Malik is a danger to national security. The Court of Appeal has clarified the law, but the prosecution and the Police Counterterrorism Command remain adamant that it was right to prosecute Malik on terrorism charges. Why were Malik’s terrorist connections not emphasised when she was prosecuted at the Old Bailey in 2006? And why did Hemming not explain the nature of Malik’s involvement and the type of security information she passed on to the 29-year-old Qureshi, who had been prosecuted for planning to travel to Afghanistan to fight the British troops? Furthermore, did the CPS drop Malik’s case because there was no ‘public interest’ in pursuing a conviction? I use the term ‘public interest’ in two senses here: (1) in the sense of public safety and (2) in a broader sense of attracting the attention of the general public and the media. Secondly, there is more than a hint, in particular in the media, that Malik’s poetry was sufficient grounds alone for her conviction. Notwithstanding Hemming’s clarifications that Malik was not prosecuted for her poetry, her posting of poems on extremist websites was used by the prosecution to prove that she was ‘deeply involved with terrorist-related groups’ (BBC News 8 November 2007). This shows that in anti-terrorism cases of this type, the rights of terrorism suspects can be obscured by a public discourse which combines official anti-terrorist rhetoric—anxious to talk and act tough—and Islamophobic sentiments. This was one of the controversial points in the statement made by Siddique’s solicitor and the reason why he was charged with contempt of court after the trial and outside the court. Thirdly, why was Malik ‘an enigma’ to the judge? Had the court not been told that she was ‘20 years old when she “first started to consider Islam” and was “like most teenagers, somewhat rebellious”’? (Guardian 6 November 2006). Finally, what do this case and other similar cases such as Munshi (discussed below in the next section) and Siddique’s say about the relationship between law, justice and politics in today’s Britain and in the wake of 9/11 and the 7 July bombings in London? Should we understand the actions of Malik and Siddique in terms of how British society views its Muslim communities, or should we instead attribute them to the influence of anti-Western terrorist networks external to Britain?

Our third case concerns the teenager Hammad Munshi, the youngest British-born Muslim to be convicted of offences under the Terrorism Act 2000. Munshi was convicted on 18 August 2008 of offences under Sec 57 (1) and 58 (1) of the Terrorism Act 2000 for possession of an article which gave reasonable suspicion that it was for a purpose connected with the commission, preparation or instigation of an act of terrorism. Sec 57 (1)—possessing an article for a purpose connected with terrorism—carries a maximum sentence of 10 years. Section 58 (1)—making a record of information likely to be useful in terrorism—also carries a maximum sentence of 10 years.⁸

Munshi, who was 16 when he was arrested, had, according to the British media, ‘led a double life’ for over a year, attending lessons by day at the local comprehensive and ‘surfing jihadist sites’ by night, ‘distributing material to others’ as part of ‘a “worldwide conspiracy” to wipe out non-Muslims’ (Telegraph 18 August 2008 and Daily Telegraph 18 August 2008). The schoolboy had been recruited and radicalised when he was 15 by Aabid Khan, a 23-year-old British-born Muslim, who was also found guilty of four counts of offences under Sec 57(1) of the Terrorism Act 2000. Khan wanted to arrange Munshi’s passage to Pakistan to ‘fight jihad’ (Timesonline 18 August 2008). The prosecution told the court that the schoolboy was in fact a dangerous individual ‘dedicated to the cause of al-Qaeda’ (AFP 20 August 2008). Khan was sentenced to 12 years and Munshi to 2 years in a young offenders institution. While sentencing Munshi, the judge told him that he had brought ‘great shame’ on himself, his family and religion. The judge admitted that Munshi, being naïve and vulnerable, had been misled by Aabid Khan’s ‘malign influence’, but there was no doubt that Munshi was ‘aware of the nature of the record of information’ on deadly chemical weapons that he had collected and sent to Aabid Khan (Daily Mail 20 September 2008). In such a case, the judge added, ‘a custodial sentence is inevitable and unavoidable’ (Daily Mail 20 September 2008).

Notwithstanding the rising number of cases such as Malik and Munshi’s, we find no public political debate on the possibility that perhaps British society might bear some responsibility in respect to British-born Muslims who are drawn to terrorism. Instead, authorities draw the public’s attention to factors external to British society and culture. For example, an Islamic think-tank, set up by the government, asserted in its report (published a few months after Munshi had been sentenced) that ‘young Muslims are pushed towards extremism because their mosques are run by elderly and out of touch cliques’ (Daily Mail 24 February 2009). Reports which locate the root of Islamic extremism among British-born Muslims outside the UK’s national, political and cultural borders do surface on regular intervals in the British media. However, those arrested for terrorist activities are often more likely to be independent individuals with a mind of their own, more likely to have been radicalised at school, university or in cyberspace than in a mosque run by Urdu-speaking, elderly mullahs from the rural backwaters of Pakistan.

By blaming the mosques and their elderly Pakistani mullahs, British society denies young Muslims’ agency while absolving itself from any responsibility towards them. Moreover, it avoids the moral issues pertaining to their marginalisation, which is in turn caused by what they, rightly or wrongly, perceive as the demonisation of Islam and Muslims after 9/11. After the July 7 bombings in London, UK authorities responded to the threat posed by young British-born Muslims by increasing political pressure on the so-called ‘Muslim communities’, which were to take responsibility for the actions of their youngsters (see Telegraph 6 April 2007). On the one hand, the authorities ignore the fact that these communities are socio-culturally fragmented entities which exist partly as a reaction to outside pressure. Their self-appointed leaders, who lack political clout and legitimacy, are incapable of exercising authority over the younger generations. On the other hand, the authorities disregard the agency of the young British-born Muslims, many of whom belong to a new generation of hyper-individualists. Among them we find many who evade the structural constraints of the traditional communities to which their parents belonged (for a discussion see Banakar and Lort Phillips 2014). Malik, Munshi and Saddique came from law-abiding families with no sympathies towards radical Islam, a fact which was underlined by the judges who passed sentence. During his trial, Saddique was described by his headmaster as a model pupil who was always very polite and respectful towards the staff (BBC News 22 August 2007). While Munshi was ‘misled’ by an older person, Malik chose the path of extremism herself. This hyper-individuality, which we shall discuss in Chaps. 12 and 13 in more detail, must be understood in terms of increased reflexivity which accompanies the move from industrialisation to a late modern network society. These young Muslims’ actions are imbued with agency and the desire to resist and transgress the social order of their community as well as the larger society. By transgressing the boundaries of what is acceptable, by breaking taboos, ‘outsiders’ such as Malik defy their marginalisation (cf. O’Neill and Seal 2012). Defying the social order and confronting the hegemonic images which define them as ‘outsiders’ can have a liberating effect at the individual level, but as these cases demonstrate, it can easily come at a surprisingly high price.

The very application of the labels ‘radical’, ‘extremist’ and ‘jihadist’, intended to explain the threat of terrorism posed by British-born Muslims, hides more than it reveals. The labels conceal the uncertainty, confusion and alienation which underpin their radicalisation, as well as the feeling of social exclusion felt by many young British Muslims whose voices, concerns and the first-hand experiences of social justice both at home and overseas are marginalised in public political discourse in Britain, or instead are misplaced in the context of an increased threat of terrorist attacks. Furthermore, it hides existing power relationships and modes of cultural domination in Britain, which essentialises the discourse on Islam, portrays it as a threat to democracy, stigmatises Muslims in public opinion and dismisses the concerns and experiences of the likes of Munshi and Malik.⁹ Finally, it hides the fact that the involvement of many young British-born Muslims in terrorist activities—destructive, misguided and deluded as these individuals and their involvements might be—is part of their resistance to what they perceive and experience as a form of domination pitched against their ethno-cultural identity.

Before taking this point further, we need to consider how the UK’s anti-terrorism policy and legislation have grown since 1974 and how anti-terror laws’ symbolic effects have become intertwined with a new form of managerial strategies of crime control.

The first Prevention of Terrorism (Temporary Provisions) Act (PTA 1974) was introduced in 1974 as a response to Irish terrorism soon after the Birmingham pub bombings in which 21 people died and over 180 were injured.¹⁰ This legislation, which was originally intended as a strictly ‘temporary provision’, was extended in 1984 to meet the rising incidents of international terrorism in the UK. Parliament enacted the Terrorism Act 2000 (TA 2000) following a review of terrorism legislation by Lord Lloyd. The British government agreed with Lord Lloyd that ‘there will be a continuing need for counterterrorist legislation for the foreseeable future’, and that there were sound reasons for replacing the temporary provisions of the PTA 1974 with a permanent form of legislation (Bailey 2001