HIGH COURT OF JUSTICIARY
M. AAMER ANWAR, solicitor.
1. Procedural Background
(1) between 1 March 2003 and 13 April 2006, both dates inclusive, at 4 Myretoungate, Alva, Clackmannanshire; Ibrox Public Library and Glasgow Metropolitan College, both Glasgow, at Glasgow Airport, Renfrewshire and elsewhere to the Prosecutor unknown, you did possess articles in circumstances which give rise to a reasonable suspicion that your possession was for a purpose connected with the commission, preparation or instigation of an act of terrorism namely computers, computer files, video files, pictures and sound files and other files; a memory card containing computer files; mobile phones containing files and photographic images; a number of CDs and floppy discs containing computer files and audio files, video files and word documents depicting amongst other things terrorist propaganda, instructions and information on making bombs, the use of various weapon systems, terrorist and guerilla tactics, surveillance techniques, suicide and sacrificial operations and terrorist training camps: CONTRARY to the Terrorism Act 2000, Section 57(1) as amended;
(3) on various occasions between 1 September 2003 and 30 September 2005 at Glasgow Metropolitan College, Glasgow you did conduct yourself in a disorderly manner and did show to various students there images of suicide bombers and images of the murder and beheading of persons by terrorists, threaten to become a suicide bomber and carry out acts of terrorism in Glasgow or elsewhere,...place said students...there in a state of fear and alarm and commit a breach of the peace;
(4) between 1 September 2003 and 13 April 2006, both dates inclusive, at 4 Myretoungate, Alva, Clackmannanshire, Ibrox Public Library and Glasgow Metropolitan College, Glasgow and elsewhere to the Prosecutor unknown you did provide instruction or training in the making or use of firearms and explosives by means of the Internet in that you did set up, manage and control web sites namely www.freewebs.com/al-battar, www.freewebs.com/sout-al-jihad and www.freewebs.com/muaskar-al-battar containing links to documents providing instructions on how to operate various weaponry and to make explosives and further, containing links to other web sites containing similar documents: CONTRARY to the Terrorism Act 2000, Section 54(1) as amended; and
(5) on 13 April 2006, at 4 Myretoungate, Alva, Clackmannanshire, and elsewhere to the Prosecutor unknown you did distribute or circulate terrorist publications by means of web sites previously set up by you namely www.freewebs.com/al-battar, www.freewebs.com/sout-al-jihad and www.freewebs.com/muaskar-al-battar containing links to terrorist publications with the intention that the effect of said distribution and circulation be a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism or the provision of assistance in the commission or preparation of such acts or you were reckless as to whether your conduct had an effect abovementioned: CONTRARY to the Terrorism Act 2006, Section 2(1)."
I had directed the jury that charges (1) and (2) were alternative and hence there was no verdict in respect of charge (2) after the guilty verdict on charge (1). Charge (2) had been an allegation of a contravention of Section 58(1)(a) by collecting or making a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, that information being the same as libelled in charge (1).
I continued the case for the production of a social enquiry
2. Evidential Background
The evidence upon which the jury were entitled to convict the panel can be summarised by reference to parts of the remarks I made at the sentencing diet of 23 October. These are as follows:
"I have to sentence you on the basis of the verdict of the jury reached upon the evidence which was led in court during the trial. It is important to understand what the jury's conclusions on that evidence were. On charge (1) you have been convicted of having in your possession articles for a purpose connected with terrorism. The jury were given the alternative of convicting you either on charge (1) or the lesser charge of simply collecting material on charge (2). The jury convicted of charge (1).
The articles which you had in your possession included a
large number of files stored in a concealed location in your lap top computer
which you had with you when about to board a flight to Pakistan on 5 April
2006. These files are in English and
contain terrorist propaganda, partly emanating from Al Queda, glorifying
terrorism (especially suicide bombings), designed to encourage people to commit
such acts of terrorism and to promote the recruitment of English speakers,
notably British nationals, to the cause of Jihad, which, in the context in
which it appears in the documents, involves the perpetration of violence. Much
of the material was translated, some recently, from the Arabic. At the time you
were found to have it, on the evidence at the trial, it was not readily
available, at least in such a combination, on the internet. The quantity of it
on your lap top is strongly suggestive of you having had close links, whether
by the internet or otherwise, to people in the
The quantity and nature of this material is not consistent with the suggestion made in your defence during the trial and clearly rejected by the jury, that you had this material because of some general interest in the motives of terrorists. It should be made clear that in proceeding to sentence I too proceed upon the evidence and that evidence negatives any such suggestion.
In addition to the propaganda on the lap top, there were further files recovered from your home, notably from portable discs of one sort or another and from the desk top computer used by you. Most of the material recovered from the computer and some of the discs had been deleted. Given that it was about a week after you had been stopped by the police at the airport but later released pending a detailed examination of the lap top (on which nothing incriminating had been discovered at the airport), it seems highly likely that you had taken the opportunity to delete items on the computer and discs in the interim period but had failed to complete that task successfully.
One of the discs found contained a document in English
calling upon young persons to join a
jihad or holy war in order to achieve the restoration of an Islamic Caliphate
It is clear from the evidence that you did not have this material because of some innocent curiosity. Indeed there was no evidence, other than the most passing of remarks during one of your interviews, that your downloading of this material was mere idle curiosity.
In analysing why you had this material, the members of the jury were entitled to have regard not to suggestions made to but not accepted by witnesses but to the evidence bearing on that issue. Notably, they were entitled first to accept the evidence of your fellow students at college, none of whom considered that you were carrying out research and several of whom said that you had not only expressed sympathy with the terrorist bombings carried out in the name of Al Qaeda but had specifically told them that you intended to become a terrorist in the form of a suicide bomber, and that one of your targets would be central Glasgow. You told them also that you were going to be trained in order to achieve status as a suicide bomber. The members of the jury accepted that evidence, hence your conviction on charge (3). They were also entitled to have regard to the fragments of chat room messages recovered and which were strongly suggestive of you having close connection also with those proposing clandestine terrorist operations and that you were planning something in that regard.
For example, in October 2005, when you had left home, you were being advised by the person with whom you were speaking to 'make a strategic return [home], a temporary one so that everyone thinks all is fine and well. The reason is we know what you desire to do for the sake of Allah'. In November 2005 the discussion is that 'we have to be undercover' and you are noted as stating 'I need to do something...I want something'.
The jury were well entitled to the view on the evidence that you were planning to play some part in an act of terrorism (perhaps as a suicide bomber) and that you had the material in your possession for that purpose, either for your own encouragement and assistance or to encourage or assist others.
In relation to charges (4) and (5), these are again contraventions of the Terrorist Acts. Once more it is important to note exactly what the jury considered you were guilty of and the evidence led in court as proof of guilt. On charge (4) you were convicted of providing instruction or training in the making or use of firearms and explosives by means of the Internet. That is precisely what you were doing in setting up the web site 'Al Battar'. This site, named after a martyr, carries the quotation placed there by you:
'And at what time on earth was Jihad more needed than it is now when the enemies of Islam have surrounded our land like wolves, taking from there what they wish...if not the time for Jihad, O Sons of Adam, when? We need the Jihad, the Jihad does not need us'.
That sets the tone for its purpose. On two pages it contains links to two magazines, the first being Mu'askar Al Battar or 'The Camp of the Sword that Cuts', the Sword that Cuts (Al-Battar) being the nickname of a martyr. The magazines have a number of regular features on weapons, survival, religion and Jihad. They contain items intended to train the reader and to encourage him to go to a place with a group of friends and for them all to train in terms of the guidance. The training includes light weapons and physical fitness. The magazine says it is issued by the military committee of Al Qaeda to spread military education among young men. Reference is made to lessons on how to interrogate and resist interrogation, on assassinations, on rumours and propaganda etc. The fact that the magazines are in Arabic may mean that their circulation is limited to those speaking Arabic or having access to some-one who does but that limitation is of little ultimate significance so far as the charge is concerned.
The second magazine is called 'Sawt al-jihad', meaning 'The Voice of Jihad' It is also in Arabic. The various editions contain material on 'Preparing for Jihad', including detailed materials on the composition and manufacture of explosives. It has information on operations in markets - such as where to conceal explosive packages - and operations on buses and bus stops. In one editorial there is a call upon the young men to follow the example of the martyrs who targeted western oil companies and to join the jihad.
It does not appear to be disputed that you did set up this website and it clear that you knew what the content of the magazines was. The defence put forward on your behalf seems to have been simply that this material could be obtained elsewhere. Maybe that is correct, but the only purpose in setting up a website containing links to this material could have been to provide others with instruction or training material in the making and use of firearms and explosives.
(5) is in respect of one day only, since it was only on
3. Media Interviews
Almost immediately after the return
of the jury's verdict, and therefore prior even to the sentencing diet, the law
agent for the panel, Aamer Anwar, determined to make a statement to the media
on the steps of the High Court of Justiciary, Glasgow, concerning the
case. He also made himself available for
interview, notably on television (Newsnight -
"Carlton Buildings, Ground Left, Aamer Anwar & Co
Telephone: 0141 429 7090 Solicitors & Notaries
Fax: 0141 429 7025
M. Aamer Anwar MA(Hons), Dip RCR, LLB, Dip LP, NP
PRESS RELEASE -
HMA -v- MOHAMMED ATIF SIDDIQUE - GUILTY VERDICT
Statement read on the steps of the High Court by Mr Siddique's Solicitor - Aamer Anwar
Today Mohammed Atif Siddique was found guilty of doing what millions of young people do every day, looking for answers on the internet.
This verdict is a tragedy for justice and for freedom of speech and undermines the values that separate us from the terrorist, the very values we should be fighting to protect.
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 run by DR Reuven Paz, ex Mossad. (www.e-prism .org)
When detained at
Young Muslims today live in a climate of fear no different to that
experienced by the Irish community in the last century. There are two questions that remain
unanswered: Why websites based in the
Since the Prevention of Terrorism Acts of the 1970s terror laws have
done little to ensure that we are safe from terrorist attack, but much to
infringe the human rights and civil liberties of those living in the
Repression and injustice, and the criminalisation of communities make us less safe, not more. They act as a recruiting sergeant to extremism and marginalise those whose engagement is vital to the effective fight against terrorism. The sensational and biased reporting of this case breached the most important principle of justice- that people are innocent until proven guilty. This is not a way to isolate extremism but only encourage it.
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
& resources used to secure a conviction in this case, carried out in an
atmosphere of hostility after the
(telephone number as stated)"
During the Newsnight interview, the agent was prepared to offer his view on the nature of the likely sentence.
Having reflected upon the nature of what the agent had said, certain matters were apparent. First, it was clear from the nature of the statements that they were not being made on behalf of the panel but were the personal views of the agent himself. This can be seen from the terms of the press release where, for example, the panel is referred to in the third person and where the remarks are those of the panel, they appear in quotation marks. The panel was not a "high achiever" at school. It would seem highly unlikely that he would have concocted the multi facetted tirade contained in the press release.
Secondly, the remarks appeared, at least in part, to be: (a) untrue; and (b) misleading. For example, the opening sentence of the statement, which received widespread media coverage, was not true. The panel had been convicted of specific statutory offences, which did not involve looking for answers on the internet. They involved downloading, concealing and retaining material for the purposes of terrorism and creating websites for the distribution of other material intended for the same purpose. In addition, although the panel had not destroyed the family computer and had not escaped, the material recovered from his home consisted of deleted files and one inference was that he had attempted unsuccessfully to destroy any incriminating material. He was not in a position to escape in circumstances where his passport had been removed by the police. It is asserted that the panel could not speak Arabic, but several witness were under the impression that he could do so, at least to some extent. It is correct that the material which the panel linked to his website is available also on a website run by Reuven Paz and might be found there if carefully looked for. However, there was no evidence that the panel knew that or had himself consciously accessed that site. At the very least, the statements made lacked any hint of objectivity.
remarks appeared to be an unjustified attack on almost every area of the trial
process, other than the defence. First,
it appeared to amount to an attack on the integrity of the jury, suggesting,
for example that the members of the jury were hostile to the panel because of
Fourthly, the statement appears to be an attack on the independence of the Advocate Depute who prosecuted the case. The prosecutor, who was the Principal Advocate Depute, is also entitled to some respect, yet it is suggested in the press release that he was simply someone doing the bidding of "the state", whatever that was intended to imply.
Finally, the statement seems to be an attack on the fairness of the trial and thus presumably an attack on the Court itself. Other than a submission during the empanelling of the jury that the list of assize had not contained sufficient obviously Muslim names and that the resultant jury was "all white", I do not recall any submission during the trial that the proceedings had in some way been unfair. It talks of some form of repression and is presumably maintaining that the court process was part of this exercise. There was no submission during the course of the trial of any oppressive activity.
Of course, if there is any merit in any of the content of the criticisms of the Court, then the panel, through his legal advisors, has the opportunity to make such complaints at the appropriate time to the appropriate forum, namely the Court of Criminal Appeal or even the Scottish Criminal Cases Review Commission. That was not what was done here. Rather, before even the process of sentencing had been completed, the remarks were deliberately made in public and expressed as the views of a solicitor; a person in whom members of the public are entitled to place their trust as a person of some integrity.
This is all quite apart from the agent's comments on the future sentence on Newsnight.
5. The Hearing on Potential Contempt
Because of these concerns, I alerted the agent to them in a letter sent to the panel's agent on 10 October in the following terms:
HMA v M ATIF SIDDIQUE
you will be aware, the above case is due to come before Lord Carloway on
For example: (1) it seems that in your view, as expressed to the public, the panel 'was found guilty of doing what millions of young people do every day, looking for answers on the internet'. This is patently not what the panel was found guilty of. He was found guilty of, amongst other things, possessing articles for, putting matters shortly, the purpose of terrorism in contravention of statutory provisions; (2) it appears that in your view, as expressed to the public, the prosecution was carried out in an atmosphere of hostility after the Glasgow airport attack, yet no plea in bar or motion to adjourn the case to a later date or to elsewhere was made to Lord Carloway; (3) it is your publicly expressed view that the verdict of the jury amounted to 'a tragedy for justice'; and (4) it also seems that in your view, as expressed to the public, the panel did not receive a fair trial, yet, apart from the application at the commencement of the case concerning the composition of the list of assize, no complaint of unfairness was made to Lord Carloway during the case.
A number of points arise. The first is whether the remarks made to the public by a solicitor instructed in the case, prior even to the sentencing of the panel, constitute a contempt of court. Secondly, if that issue is to be considered, whether that should be done by Lord Carloway or by a differently constituted High Court. Thirdly, whether the answer to the above matters should be addressed at the same time as or after sentence. Although you have also made public remarks about the likely sentence, Lord Carloway is anxious that no material, other than that which is aired in court relative to the panel, should influence his consideration of the appropriate sentence. However, it may be that Lord Carloway will wish to correct any errors of fact which have put into the public domain.
Lord Carloway may also seek the views of the crown on this matter and this letter will be copied to the Crown Agent accordingly.
MRS E DICKSON
Depute Clerk of Justiciary"
The purpose of the letter was to afford the agent the opportunity to make such submissions as he wished before I considered taking any further action.
By the time of the hearing, I had determined that I should first proceed to sentence the panel, so as to avoid any prejudice to that process as a result of anything said on the agent's behalf. At the hearing, the panel was represented by counsel. It was said that the content of the press release, which the agent accepted was issued by him, was intended to be the words of the panel. It was not intended to be a wilful challenge to the Court's authority and that, if any disrespect had been shown, then he tendered his apologies. Accordingly, I did not understand the agent to be tendering any form of apology to the Court or anyone else who might have been affected by his remarks.
It was submitted on his behalf that first the content did not constitute a contempt of court because the statement, taken as a whole, did not challenge the authority of the court. A contrary finding would amount to an infringement of the agent's right to freedom of speech. Secondly, it was not appropriate that I should make a finding of contempt but that, if such a finding were to be contemplated, the case should be remitted to another judge to do so (Mayer v HM Adv 2005 JC 121 at para 48, under reference to the Memorandum of Guidance by the Lord Justice General dated 28 March 2003, following upon the decision at first instance in the Second Chamber of the European Court of Human Rights in Kyprianou v Cyprus (App 73797/01) 27 January 2004, and the decision of the Grand Chamber in that case on 15 December 2005). Thirdly, it was submitted that before proceeding further, the Court should ascertain the views of the Crown.
The Advocate Depute stated that the Crown would not be initiating any action in the case, standing the fact that the remarks were made after trial. However, that was not to say that the Crown were content that remarks such as those in the press release could be made with impunity. Rather it was a matter for Court whether to proceed further. If it did, then the Crown would assist in that process by ingathering and presenting the relevant evidence at a hearing by way of proof or otherwise. In that regard counsel for the agent stressed the need for advance notice of the case against him (Beggs v The Scottish Ministers 2007 SLT 235, Lord Rodger at para 39).
6. Further Procedure
The issue for the Court is whether there ought to be further procedure in order to determine whether the actings of the agent constitute a Contempt of Court; that is to say "conduct which challenges or affronts the authority of the Court or the supremacy of the law itself" (HM Advocate v Airs 1975 JC 64, Lord Justice-General (Emslie) at 69). Traditionally, the Scottish Courts have been reluctant to make findings of contempt in respect of remarks made outwith the courtroom:
"lest a process, the purpose of which is to prevent interference with the administration of justice, should degenerate into an oppressive or vindictive abuse of the Court's powers...The Court should never forget that disappointed litigants sometimes feel aggrieved and that some of them are ill-tempered, and that they may say or write things which are foolish and reprehensible. The Court should be on its guard against putting an overstrained construction on such utterances, and above all it should not be too ready to find in them an attempt to interfere with the administration of justice and to visit them with the penal consequences of contempt of Court" (Milburn, Appellant 1946 SC 301, Lord President (Normand) at 315-6) .
Considerable tolerance is afforded to litigants to express, sometimes in trenchant tones, their views on the result of a case. These may be highly critical of the Court. Equal, if not greater, tolerance is also shown to news media that elect to print or broadcast these views. The public can, no doubt, be relied upon to approach genuine remarks of disappointment or criticism by an unsuccessful litigant or accused person in a sensible and balanced manner.
The essence of the problem here is that the remarks do not emanate from a former litigant or accused person or even a third party commentator. Rather they come from the agent instructed in the case. Unlike the panel, in relation to a case in which he is instructed, an agent owes specific duties not only to his client but to the Court (see eg Clancy et al : "Solicitors"; Stair Memorial Encyclopaedia Vol 13 para 1199 et seq.), his professional colleagues, witnesses and the public. Criticism of a judge or judges from many quarters is relatively commonplace and, if not taken to extremes, can be legitimate in many situations. A judge requires to put up with criticism in public even if, as at present, he seldom has the opportunity to reply. Prosecutors too sometimes have to face such criticism. They, like the judge, are professionals. However, in this case the criticism was not just of the particular judge or prosecutor, it was of at least one civilian witness (the police were targets as well) and the jury. It must be important to afford them some protection from unwarranted attacks by members of the legal profession. It also seemed to be a criticism of the Court as not being an independent and objective forum for the determination of criminal charges but part of a system of unfairness and repression. Finally it seemed to be an attack on the terrorist laws themselves. Again, a private citizen may choose to make such criticisms or attacks on the Courts and the Law, but it is another thing for a law agent in a particular case to use his position in that case to do so.
For what it is worth, so far as ethics are concerned, counsel are prohibited from making any statements to the press about cases in which they are engaged (Guide to the Professional Conduct of Advocates para 10.3). In relation to agents, the Law Society appear to have very little by way of published rules on the subject. However, there is a short Guideline dated September 1998 (PH Book Vol 3 F 1291) which reads:
"...While it is quite proper for solicitors to assist the media in conveying accurate information to the public, there should be no infringement of solicitors' obligations to their clients, the courts, the profession or the administration of justice. The Professional Practice Committee have therefore approved the following Guideline:
'(1) Solicitors presenting information to the media in relation to their clients' affairs are acting in a professional capacity. Solicitors should conduct themselves in the same manner as they would with their fellow practitioners and with the courts.
(2) ... Solicitors should not permit their personal interests or those of other causes to conflict with their client's interests.'"
It is not without significance that, until this episode, I
was unaware of the remarks of any law agent to the public, concerning a case in
which he was instructed, ever coming under any form of significant judicial
criticism. This perhaps reflects on the high standards of, and to be expected
of, law agents in
Apart from the specific remarks made in this case, there may be wider issues which, for the sake of clarity to the legal profession and the media, may require consideration. If agents are to make public statements in cases in which they are instructed, to what extent are they entitled, with impunity, to include material in these statements which is: (i) untrue; (ii) misleading; (iii) personally critical of jurors, witnesses and their professional colleagues; or (iv) of a political nature unconnected with the case? Furthermore, is an agent instructed in a case entitled to hide behind the cloak of his client by maintaining that such statements emanate from or were instructed by that client? Is he entitled to prepare such statements and escape scrutiny by arranging for them to be delivered by a third party, such as a friend or relative of the client?
In all these circumstances, since the statements made by the agent may appear to be a criticism not only of the jury, the prosecutor and a witness, but of my own conduct of the trial, I will remit this matter for determination of the High Court in Edinburgh; any procedure and hearings to be presided over by a judge other than myself. It may be that, in the light of the issues of principle involved, a panel of three judges might be deemed appropriate for the final substantive hearing. Meantime a date will accordingly be fixed for a Hearing at which further procedure can be discussed and determined. The agent will require to be present or represented at that hearing. The content of this note should provide sufficient notice of the nature of the matters to be determined, although further enquiry might also be made into additional remarks made by, or in the presence of, the agent to the media on the day of the sentencing diet.