Alex Carlile: Terrorvision

The way in which we view the world, and how the state views us, has been changed for ever by Muslim terrorism. There have been sweeping new laws, and arrests which have proved controversial. Some say we going too far. Are we?
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The Independent Online

Abu Bakr was arrested by police on suspicion of involvement in the alleged Birmingham terror plot. He is a religious man, a Muslim. He is highly intelligent: he works in a bookshop in Birmingham and is a PhD student researching the subject of political Islam at a Birmingham university. One can reasonably assume that he is astute to the meaning of words and their context. Understandably, he is angry that he was arrested and held for a week, though innocent of any crime.

The Most Rev Dr John Sentamu is a religious man too, a Christian. He is the Archbishop of York. A former lawyer and High Court judge in Uganda, he has earned enormous respect as one of the world's leading Protestant priests. There is no doubting the good he has done. As lawyer, theologian and prelate, one can assume that he too is astute to the meaning of words and their context.

During the past week, both of these devout men have used the term "police state" with reference to UK counter-terrorism laws. The Archbishop, in an interview broadcast by ITN, compared his experience of Idi Amin's Uganda with those laws, and expressed the fear that we were in danger of descending into a police state. Mr Bakr used his unhappy experience to describe this country as "a police state for Muslims".

As a lawyer, politician, and especially as independent reviewer of the precarious balance between fair and unfair counter-terrorism laws, I would urge all who are tempted to comment on police activity in this tendentious area to choose their words not only for dramatic effect, but also for their meaning. I have always refused to use the word "fascist" to describe an extreme political opponent. Precise of meaning, it is not a figure of speech. Equally, the terms "Nazi", "terrorist", "world Jewish conspiracy", "bigot" (all let slip in recent times) and many others I can think of should be deployed only when true and accurate, but in all other respects be regarded as the vilest defamation. The same applies to "police state". Mr Bakr and Dr Sentamu can both be presumed to be committed to good community relations, to civil liberties and to public safety. National security is the civil liberty of each citizen: a government that does not protect our safety is no government at all. Equally, protection against arbitrariness is a civil liberty. Nobody should be arrested on a whim, or because of their associations. In France it is possible to be arrested, in the context of terrorism, for something called association malfaiteur, a concept more wishy-washy than anything in our overburdened criminal statute book. France would be horrified to be called a police state. Describing the UK, with our stronger legal protections, as an actual or potential police state is destructive of community relations, unwise and, most importantly, untrue. However, we must take seriously that it has happened. The indictment is laid, and is shocking.

Given Mr Bakr's criticisms of them, I can see no reason why the police should not answer them. If they had reasonable grounds for arresting him, baseless though these turned out to be, they are entitled to tell us what they were, in accurate and well-chosen public words. Unfortunately, however, this exposes a general weakness in police public and press relations. They are concerned understandably that any detail they give may be seen as prejudicing future fair trials of others. My long experience of trials tells me that properly directed juries are well able to ignore old newspaper articles. There should be far less reluctance by the police officially to give out a reasonably cogent if restricted summary of the investigation and alleged roles of the plotters, once major arrests occur. When the police are publicly criticised surely they have the right to respond.

The ugly tradition of police leaks is no way to achieve this. In the Birmingham case, the police seem to be claiming leaks by the Home Office. If so, the leakers should be rooted out for their reprehensible behaviour. The Soham case and the cash for peerages investigation are examples of how leaks provide food for unpalatable speculation, but starvation of digestible information.

If Mr Bakr lived in a true police state, it is difficult to imagine that he would be giving interviews to a state-owned broadcaster; or that anyone at all would be working in a Muslim bookshop, or for any business selling some of the material available at some of these shops in the past. In 2005 an investigation by The Times included a visit to a shop where publications available included one professing "Terror works and that is why the believers are commanded to enforce it by Allah", and another in which a photograph of praying Jews was captioned "Brothers of pigs and monkeys".

When Mr Bakr was arrested he and his solicitor were told that the reason for his arrest was suspected involvement in a conspiracy to kidnap and kill a British Muslim soldier. He was questioned under caution, presumably with his lawyer present at every tape-recorded word if he desired it. In France, no lawyer need be provided for the first three days of questioning, and no tape recorder is used - which led a French judge to describe this early interrogation phase to me as "a very productive period of questioning". The questioning of him, according to Mr Bakr, was not skilful, "amateur" as he put it. That might be a fair criticism: police interrogation techniques can leave much to be desired, but the loser is almost always the potential to prosecute to conviction. He was not obliged by law to answer any of the questions put, and if he wished could be advised by his lawyers question by question. His detention was supervised by senior police officers and ultimately by a specialist district judge. That process led to his release after a very few days once it became clear there was insufficient evidence to take the police's initial suspicions to the next stage of a criminal charge.

Nobody would wish to underestimate the trauma of arrest and some days in custody for Mr Bakr. Yet it is in the nature of all police investigations (especially those involving risk to life) that some arrested may be innocent, and that the legal process will sort them from the guilty. If the arrests, of which Mr Bakr's was one, are subsequently shown to have saved the life of a fellow Muslim, a public servant whose form of service happens to be in the forces, I trust that we shall hear Mr Bakr as an accurate and devout Muslim abjuring his loose language of recent days.

We must guard against a caricature of Muslims. Most are deeply opposed to terrorism in any form, and especially violent jihad. I can safely presume that this applies to Mr Bakr. The wise words of the Muslim Labour MP Shahid Malik deserve to be heeded: "I can understand Abu Bakr's anger and hurt but it definitely doesn't lead to the conclusion that we're in a police state. It's really important that people do remain patient and let justice take its course." Once something of a political firebrand, Shahid Malik is now a leading proponent of the only realistic option, that of cross-community partnership against extremism and terrorism. The words of Mr Bakr, like the unfortunately slipshod remarks of the Archbishop, will be quoted repeatedly by the small minority who feel driven to fan the flames of hatred and hostility.

There are controversial measures in existence to deal with the terrorist threat. I have made an extensive study of terrorism laws around the world. As in all comparable countries, we have some special legislation. This includes control orders, non-custodial limitations on the activities of suspected terrorists. Each case is subject to scrutiny by the Home Secretary, myself as independent reviewer and, by an automatic legal process, the High Court. Private lawyers paid for by the state, but chosen by the controlee, represent his or her interests. Where evidence has to be heard in the controlee's absence for national security reasons, an independent and security-cleared special advocate is hired by the state to check the activities of the executive.

In a truly police state, even one eccentric enough to provide the legal protections I have summarised, how many control orders would one expect? Certainly 1,800, perhaps 18,000. Here we have but 18 at present and at no time to date more than 21. We have made mistakes about terrorism law, and have corrected them as a result of court decisions - notably the repeal and replacement of the so-called Belmarsh provisions. However, the nature of the threat requires risk-limiting policing. And if Mr Bakr was arrested wrongfully, and imprisoned unlawfully, the police will have to pay him substantial damages for those serious civil wrongs.

I hope that Mr Bakr will reflect upon his words. Terrorism laws are not designed "specifically for Muslims", as he has claimed. Thirty years ago more oppressive laws, involving internment without trial and subject to a much flimsier court process, were used against Irish terrorist suspects. The foundation of the Terrorism Act 2000, enacted before the events of 9/11, was terrorism relating to Ireland. The Government has made it clear, as have all political parties, that our laws must be capable of meeting all terrorism threats wherever they come from. In my adult life we have experienced in Europe not only Irish terrorism and violent jihad, but also the domestic terrorist radicalism of Bader-Meinhof and the Red Brigades. Intelligence activity and profiling of terrorists may change, but good laws need not.

I do concede that Mr Bakr, and indeed the Archbishop, have made a useful if accidental contribution to the debate about terrorism laws. However, it must now become a real debate, a symphony containing all opinions, rather than a selective fanfare.

Lord Carlile of Berriew QC is the independent reviewer of terrorism legislation