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Is it safe to download al Qaeda manuals yet?

Despite Court of Appeal ruling, not entirely...

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Is the "al-Qaeda manual" still an easy get into jail card? The UK Court of Appeal yesterday quashed the conviction of Samina Malik, aka the "Lyrical Terrorist", for possession of information useful for terrorist purposes under Section 58 of the Terrorism Act 2000, but the Crown Prosecution Service still views this and other widely circulated documents as prima facie evidence of wicked intent.

So the jury's still out, as it were. The Court of Appeal ruled in Malik's favour because it felt there was "a very real danger that the jury became confused", and that her conviction was therefore unsafe. The prosecution conceded this, but Sue Hemming of the CPS counter-terrorism division said that although some of the 21 documents that had been used in Malik's trial could no longer be seen as giving practical assistance to terrorists, "other documents in her possession, including the al Qaeda Manual, the Terrorist's Handbook, the Mujahideen Poisons Handbook and several military manuals, clearly retain that potential."

Hemming added that Malik had already spent time on remand and would be likely to receive a non-custodial sentence if a further trial were pursued, and said that the CPS had therefore decided not to seek a retrial. Which you might well take to mean 'she's guilty as hell, but we're not going to bother with her, so there.'

Section 58 covers the collection or holding of information likely to be useful for terrorism, but doesn't require any specific terrorist intent, and is therefore particularly useful for sweeping up small fry, wingnuts and thought criminals. The three documents referred to by Hemming are all widely distributed on the Internet (sometimes, indeed, by the US Department of Justice), and have been used frequently in UK terrorist prosecutions.

In yesterday's judgment, Lord Phillips said that an offence would only have been committed if the material was likely to have provided practical assistance to a person preparing an act of terrorism, and that mere propaganda wasn't covered by Section 58. The Court of Appeal has therefore clarified the law, ruling out documents that are just plain nasty, but leaving in ones that are probably nasty, and at least arguably practical.

Earlier this year the conviction of five students under Section 57 (which does require intent) of the Terrorism Act was also quashed. A range of Internet propaganda and the famed al Qaeda manual were also involved in that case, but the Court of Appeal judgment said "there was nothing that evidenced expressly the use, or intention to use, the extremist literature to incite each other to [go to Pakistan to train as terrorists]. We think it doubtful whether there was a case of infringement of section 57... that could properly have been left to a jury."

Effectively this and the more recent judgment leave Section 58 as the somewhat slimmed-down catch-all. It does still seem feasible for prosecutions to proceed on the basis of possession of the deadly documents without there being any need to prove intent, but even there the platform is rickety. In the case of the Nottingham student held for possession of the al Qaeda manual, it was eventually accepted that Rizwaan Sabir had legitimate academic reason for having the document. So intent does matter? If it is the case that it is permissible to possess such documents for legitimate purposes of academic or journalistic research, then it does - but that isn't what the law says. ®

Bootnote: Samina Malik worked airside at Heathrow for W H Smiths, writing terrorist - or possibly just criminal - bad poetry on the back of till receipts. The Register noted recently that Heathrow's new T5 seems to have only one branch of W H Smith tucked in a corner of its overweening vastness. We'd initially thought this was because BAA didn't want people spending valuable time reading magazines when they ought to be buying expensive designer clothing, but it now strikes us as possible that the WHS presence has been deliberately limited to counter the threat of improvised explosive sonnets.

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