Conviction of Thought: How Islamic concepts are ruled on in UK courts

2013-12-28T09:04:16+00:00 December 28th, 2013|Uncategorized|

Through discussing the case of R v Faraz, I argue that the case has shaped, and may establish a precedent, in the discussion of Islamic concepts in British law courts.

 

While the Faraz case is not alone in a new wave of terrorism trials, it highlights points relating to Islamic theology and jurisprudence that should be understood in greater depth by UK judges, before rulings are made.

 

Previously, convictions were related to actual terror plots. Thus, the outcomes of terrorism related trials in the UK, such as ‘Operation Crevice Trail’, the ‘Ricin Plot’, and ‘Old Trafford Plot’[i], have been influenced by the amounts of evidence available. The landscape of terrorism prosecutions has changed dramatically over the last two years, given the increasing emphasis on perceived ideologies of the defendants.

 

In response to the conviction of Ahmad Faraz on 12 December 2011, the Crown Prosecution Service expressed the following:

 

This trial was not about censoring books but about the defendant’s role in the mass distribution of material, which had been added to and manipulated, in order to prime would-be terrorists to commit violent acts.

 

They further add,

 

Some of these publications have previously been cited by convicted terrorists as influencing their actions. Other items contained explicit instructions on how to make explosive devices and how to kidnap people.[ii]

 

            Within this case, prosecution was based in Faraz’s alleged involvement in activity related to terrorism. The main charges against him include the possession and dissemination of books and videos related to terrorism, regarded as an offence under section 58 of the Terrorism Act 2006.

 

            The Faraz case is not the first to have led to convictions where no evidence of an actual terrorist plot is presented. As part of the UK government’s Prevent strategy, the criminalisation of ideas has been prosecuted by the Crown Prosecution Service (CPS) who are keen to test cases before the courts. In February 2011, Mohammed Gul, a 19 year old law student, was convicted of the dissemination of terrorism publications. In his judgment, Judge David Paget is recorded as saying; “I am in no doubt that you have become thoroughly radicalised.” Padget also went on to say that Gul was, “pouring petrol on the fire” for those who may be inclined towards terrorism.

 

            The reality of the Gul case is that there was no plot, nor was there was any evidence linking him directly to the actual or planned acts of terrorism. Gul created and uploaded videos to anti-imperialist websites. The case spoke more of the alienation of a conflicted young man. The five years sentence given to Gul, according to Kimberley Trapp, was completely disproportionate to his activities.[iii]

 

            A further case demonstrating attacks on ideologies, is that of Munir Farooqi, who was  given four life sentences despite the fact that there was no evidence of a terrorist plot. The government admitted that Farooqi had not been planning to commit acts of terrorism, but rather he was expressing sentiments against the Western invasion of Afghanistan. At the conclusion of the trial, Detective Chief Superintendent Tony Porter, head of the North West Counter Terrorism Unit, commented on the case,

 

This was an extremely challenging case, both to investigate and successfully prosecute at court, because we did not recover any blueprint, attack plan or endgame for these men. However, what we were able to prove was their ideology.[iv]

 

The Farooqi case further causes concern, given the possibility of entrapment in the case. The undercover police in the case, were actively encouraging the Farooqis to help them join the jihad abroad. After months of investigation though, it was not due to any tangible plot that Munir Farooqi was convicted, but rather, it was due to his opinions in relation to foreign policy and conflicts abroad.  

 

            In a similar vein prior to the Farooqi and Gul cases, in 2007, Faraz was arrested and detained by the police in connection with ‘Operation Gamble’[v]. He was released without charge, but at the time the police gathered evidence from the Maktabah bookshop. At the time, Detective Inspector Haddon of West Midlands Police claimed that while the material they had seized promoted anti-Western sentiments, it was not illegal.

 

            Part of the evidence that was only partially presented in the trial (due to the defence not actually presenting a case) proved that Faraz had gone to great efforts to speak with his team, lawyers and indeed the police about the content of the material the Maktabah bookshop sold. Emails and notes recovered by the police demonstrated that Faraz was particularly concerned with any legal liability that might arise from the publications. Thus the ambiguity of the 2006 Terrorism Act is apparent in the confusion surrounding legal responsibility.

 

            Faraz was also charged with a section 58 offence of possession of terrorist material on his computer hard-drive, however it is important to understand the context under which the possession took place. The files in question were found on Faraz’s hard drive in a folder entitled “PhD”. For those Faraz, the prospect of a PhD following his Masters was a matter of when and not if. The prosecution had access to detailed communication between Faraz and his former Masters dissertation advisor, in relation to potential PhD projects. Faraz explained through his lawyers in court that the data in question had been collected as source material for a possible PhD level comparative study of Al Qaeda and Hamas.

 

            Faraz was also found to be in possession of an Al-Qaeda training manual. Similarly Rizwan Saabir,was arrested (and held in solitary confinement) for having downloaded the training manual as part of his PhD. The manual was available for free download from a US Department of State website. Saabir was released after a week and was subsequently awarded £20,000 compensation for his mistreatment.

 

            With little factual basis, the Faraz trial very much hinged on proving the ideology of the defendant. The CPS was keen to rebut the arguments defence lawyers Karen Armstrong and Alistair Crooke. Their arguments were based on assessments of the case prior to the trial. In order to do so, the CPS requested Dr Matthew Tariq Wilkinson to provide expert testimony in order to understand the charges through an Islamic framework.

 

Wilkinson suggests the following as key in the formation of his Islamic expertise:

 

I memorised two juz (parts) of the Koran in the traditional way of sitting with a scholar, memorising it with a board, rubbing it off the board, learning the next section off by heart, through about 1/15th part of the Koran, which is quite a lot in fact, and a number of other major chapters of the Koran…

 

Alongside that I studied some of the traditional Tafsirs some of the commentaries of the Koran, which are needed to understand the context of the Koran.  I also memorised and learned one of the most important Hadith collections, one of the important collections of the sayings of the Prophet Mohammed (peace be upon him), by a man called Imam an-Nawawi, I memorised those in Arabic, and studied their meanings in Arabic through memorisation of a poem called "Al-'Ajrumiyyah" by a man called Shaykh Al-'Ajrum.[vi]

 

The majority of Wilkinson’s experience has been acquired through working in Muslim schools, and subsequently through his role as a member of the Muslim Council of Britain’s Education Committee.

 

            What must be considered, in light of Wilkinson’s role in the trial is the reason why he had been commissioned by the CPS. His position was clarified early on by the prosecution QC, Mr Hill, who explained, “we have asked for Mr Wilkinson’s assistance as to the meaning of the religion. Therefore, we will come on to it, the context in which religiously and socially the indicted publications may be understood.”[vii] The response by the judge, Justice Calvert-Smith, was equally telling,

 

I was concerned, members of the jury, that in learning a bit, those of us who don't know much about the core tenets of Islam, we should not forget that what we are actually dealing with the encouragement, or not, of criminal offences. So that if a particular religion, think of another one altogether, had as one of its key tenets, the commission of criminal offences, that would be no justification.

 

Whatever the religion says, what we are concerned about in the end is whether criminal offences were being encouraged directly or indirectly by any of these publications, and would be so understood by a significant number of those who read it.[viii]

 

            Both the prosecution and the judge claimed that the Faraz case was  not concerned with the banning of books, ideas or Islamic thought. I contend below that the aforementioned concepts were being analysed and judged throughout the case. My argument will be based on Wilkinson’s testimony and the decision of the judge.

 

            After presenting a general overview of Islamic thought and belief, the prosecution took Wilkinson through the concept of jihad, in order to clarify the concept to the judge and jury. In Wilkinson’s opinion, there are only very strict conditions under which jihad, as an armed struggle, can be fought:

 

1. When jihad has been declared and fought, it is under recognised Muslim leadership, such as  under an Imam/Amir/Caliph.

2. The armed conflict must be openly declared to the enemy, it cannot be a cover in any way. As a precondition tojihad is to invite the enemy to Islam first, or offering them to pay a compulsory tax.

3. Once the conflict begins, non-combatants may not be harmed.

4. Agriculture and architecture may not be harmed in any way.[ix]

           

Wilkinson’s presentation of jihad is singularly literal, in the sense that it does not describe any of the efforts relating to varying circumstances and jurisprudence over a 1400 year history. This formulation is then used as the lens through which the prosecution and the judge then understood further arguments relating to conflict around the world. 

 

            Further, when pressed about the word shaheed (witness/martyr), he claims,

 

It is not a word that appears in the Koran, it is a word that appears in the early Hadeeth material, and the idea is that someone that sacrifices their life to uphold properly the religion is somebody that most directly witnesses to their faith; it is not a Koranic word.[x]

 

The above statement is incorrect as the word shaheed appears on numerous occasions in the Qur’an in various permutations and circumstances. The suggested lack of presence in the Qur’an implies a lack of religious significance. From a theological perspective, this becomes particularly important when juxtaposed to the discussions that took place immediately after, as Mr Hill attempted to clarify the concept of martyrdom in Islam during a conflict.  Wilkinson reiterated: “That is not an Islamic concept.”[xi]

 

Wilkinson’s testimony remains problematic, largely due to his lack of expertise in Islamic theory and jurisprudence, and conflict studies. An important part of his testimony focussed on his assessment of the modern day Islamic validity of conflicts around the world. Wilkinson discussed the conflicts in Afghanistan, Chechnya, Iraq, Bosnia, Palestine and Kashmir, with an oversimplified assessment of whether or not the conflicts had Islamic validity in terms of jihad. For the most part, he refused to accept any Islamic validity in the aforementioned cases.

 

            Using the above analysis of both the theology of the jihad, and its application on the modern circumstances of conflict in the Muslim world, Wilkinson set out his views on the publications that were distributed by Faraz. A major point of discussion for the prosecution was the role of the widely used bookMilestones by Sayyid Qutb. Wilkinson sets out a view of the book and its author’s opinion:

 

Sir, my contention is that this Milestones itself, in particular this edition, militate both against the spirit and the letter of the Koran and the Sunnah, the primary sources of Islam, and this is because in my opinion they establish a mindset in the reader, in the audience, that I have described in the following way: that is Manichean, in other words it sets up a vision of the world that is entirely divided into black and white, right or wrong, good and bad, true or false, without any shades of grey whatsoever, it is separatist, so it encourages the reader to split off into the Muslim group and away from any other sort of group, and into a very particular Muslim group in that, it is simplistic in that it provides a vision of the world that is broken down into — has an absurdly simple analyst of the relationship, for example, between the Muslim world and the non-Muslim world, it is excessively political so it trots out the cliché which has actually been absorbed almost in the main stream of thinking that Islam is just a sort of political faith, that it can't exist without its sort of politics, it is violent beyond what is authorised in the Koran and the Sunnah, that it is historically inaccurate, it uses analysis of history that is wrong in a number of quite simple ways, both Islamic history and non-Islamic history, that it is unrepresentative of an authentically Koranic world view…[xii]

 

Wilkinson also commented on texts by Abdullah Azzam, amongst others, and he does not accept their views as being Islamically authentic. I would argue that the conclusions that Wilkinson reaches are based on his personal opinion. 

 

I am saying that the style of Milestones is what you might call in the style of the Khariji theology, because it specifically says that the sovereignty of a Muslim state resides with the Godhead, and not with the person deputising for it, which was the very typical Khariji theology.[xiii]

 

            It is during the defence rebuttal of Wilkinson that much of his Islamic credibility is damaged. Defence QC Mr Joel Bennathan cross-examined Wilkinson on various comments, statements and arguments made during the course of his testimony. What Bennathan was able to prove, was that much of the Wilkinson evidence, was open to interpretation.

 

Bennathan cited the example of Martyrs Square in Tripoli, used during the Libyan uprising in order to discuss the issue of martyrdom and how it was being understood by those fighting for their freedom. On pushing Wilkinson as to the status of the ‘martyrdom’ of those who had died fighting against Ghaddafi, the witness initially denied they could be called martyrs, but when pressed was forced to accept that he could not give a definitive answer.

 

            Bennathan went on to cite the example of the war in Afghanistan, explaining that there were a number of varying opinions about the conflict. Using the fatwa (religious edict) written by Abdullah Azzam and acquiesced by Shaykh Abdul Aziz bin Baz regarding the jihad in Afghanistan, the witness was forced to concede differences of opinion:

 

                BENNATHAN: Who was, or is indeed, Abdul Aziz ibn Baz?

 

                WILKINSON: He was the leading establishment Mufti of the Saudi regime.

 

                BENNATHAN: Mr Wilkinson, you are a learned man who has been 20 years in the religion, but you             are not on the same page as him are you in terms of Islamic authority?

 

                WILKINSON: Here I express my opinion about this matter.

 

                BENNATHAN: Forgive me, could you answer the question first.  You are not on the same page as the          Grand —

 

                WILKINSON: What do you mean that I am not on the same page, I am not in any way such an   authoritive voice in the Muslim world, is that what you mean?

 

                BENNATHAN: Yes.

 

                WILKINSON: Yes, I would certainly agree with that, but nevertheless I think great authorities in the              Islam have in the last 50 at least years had to grapple with very complicated problems.  Often they have             changed their minds about situations quite a lot.  For example Yusuf al-Qaradawi, having initially         supported suicide bombing condemned it thoroughly.  Even Sayyid Imam, who was initially a Jihadi    ideologue of quite some pedigree, recanted entirely upon his ideology on a different legal setting. Very          respected Islamic figures have, throughout the last 30 years, changed their mind on very important                 matters.

 

                BENNATHAN: The only point I am making is on whether this was a Jihad, there is obviously a very significant division of opinion with people on both sides?

 

                WILKINSON: No, that is why I said, if you turned to my table, I ticked what I thought was a pretty consensual view I ticked both boxes.  Although, I think strictly speaking it doesn't fulfil all the conditions of an Islamic Jihad, nevertheless I think it is a just struggle.  I would not argue with people that would call it a Jihad.

 

                BENNATHAN: That is a perfectly good point, most people tick the box, most people think it is a  Jihad?

 

                WILKINSON: Yes.

 

                BENNATHAN: You are in a minority on that one?

 

                WILKINSON: Possibly.[xiv]

 

            The arguments set forth by the defence underline the differing opinions in Islamic  jurisprudence. The defence team presented a classical Maliki jurisprudential text which rebutted Wilkinson’s statements that jihadcould never be Fard al-‘Ayn – an obligation on the individual. By proving to the court that a town under attack must be defended without the requirement of authorisation, the defence was able to show that there was enough conflicting evidence within classical Islamic interpretations. Thus disproving the analyses set out by Wilkinson.

 

            Despite the strength of the defence rebuttal, the judge and jury were convinced by the ideological analysis put forward by Wilkinson. In the words of Justice Calvert-Smith:

 

Milestones, described by the expert Matthew Wilkinson as Manichean, separatist and excessively violent. The original author of the book made the case that any regime which does not apply Islam, should be removed by force, ties of family etc were unimportant, this is the view put forward by Qutb.[xv]

 

            The starting point of the judge was to accept Wilkinson’s flawed analysis of Islamic theology and its jurisprudential implementation. Without using his testimony as a basis, the conviction and the resulting judgment would have been difficult to adduce.

 

            The conflation made by Wilkinson between traditional jurisprudence and modern conflict scenarios, presented a somewhat false understanding of the way in which Islamic argumentation has developed over a 1400 year history. While the prosecution and the judge claimed that this case was only about whether or not the dissemination of these materials could amount to an offence, the reality is that precedents were being set in the way that Islam and Islamic jurisprudence is understood by the courts. This is an extremely dangerous precedent, as it will only serve to restrict the space of legitimate and necessary Islamic discourse.

 

            While I may not disagree with everything that Wilkinson said, the very notion that a pseudo-expert on Islam could be relied on to secure convictions over areas of Islam which are highly contended, serves to have a negative impact on the manner in which Muslims engage with their religion and how they go about debating concepts. The criminalisation of certain types of Islamic thought will not make ideas disappear, rather it will force discussion on such matters underground.

 

 

*Asim Qureshi

 

Asim Qureshi has a legal background and is currently employed as the Executive Director at CagePrisoners where he has led investigations into Pakistan, Bosnia, Kenya, Sudan, Sweden, USA and around the UK. With his team of researchers, he has written and published many reports exposing the use of unlawful detention, rendition, and torture in the 'war on terror'.

 
He is also the author of the book Rules of the Game: Detention, Deportation, Disappearance published by Hurst and Columbia University Press. The work analyses global detention policies in the 'War on Terror' post 11th September 2001 and the impact on those most affected, the victims.

 


[i] ‘The Operation Crevice Trial’ in 2006 resulted in the conviction of 5 out of the 7 men alleged to have been involved in a plot to use ammonium nitrate fertilizer to blow up targets in London. Conversely, the ‘Ricin Plot’ in 2005 resulted in acquittals as it was revealed that there no plots to begin with. The ‘Old Trafford Plot’  in 2004 was dismissed early into the investigation as police admitted that there was no tangible evidence of such a plot. 

[ii]BBC News, Bookseller Ahmed Faraz found guilty of terror offences, 12/12/2011  http://www.bbc.co.uk/news/uk-england-16149299

[iii] Trapp K, R v Mohammed Gul: Are You a Terrorist if You Support the Syrian Insurgency?, Blog of the European Journal of International Law, 14/03/2012

[iv] BBC News, Munir Farooqi given four life sentences for terror charges, 09/09/2011http://www.bbc.co.uk/news/uk-england-manchester-14851811

[v] The Maktabah bookshop was raided on 31 January 2007 under section 41 of the Terrorism Act 2000 for the alleged association and involvement in a ‘plot’ to kidnap a soldier from the British army. The manager and a volunteer from the Bookshop were amongst nine individuals arrested in ‘Operation Gamble’. After seven days, the men were released without charge.

[vi] R v Ahmed Faraz, Kingston Crown Court, 07/11/2011 http://www.cageprisoners.com/learn-more/legal-issues/item/2922-r-v-faraz-testimony-of-matthew-tariq-wilkinson-for-the-prosecution-day-1

[vii] Ibid

[viii] Ibid

[ix] Ibid

[x] Ibid

[xi] Ibid

[xii] Ibid

[xiii] R v Ahmed Faraz, Kingston Crown Court, 08/11/2011 http://www.cageprisoners.com/learn-more/legal-issues/item/2923-r-v-faraz-testimony-of-matthew-tariq-wilkinson-for-the-prosecution-day-2

[xiv] Ibid

[xv] Ibid

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