No matter where one looks, judges seem to be hell-bent on helping wicked individuals. For example, SIAC’s recent decision that N2’s continued detention was unjustified, because he would not abscond, is yet another tight slap across Theresa May’s face. In the earlier case of DD, which this post analyses, the High Court thought that a radical Somali preacher’s electronic monitoring tag inhibited his human rights. Elsewhere, the Lahore High Court had gone even further by ordering the release of Zakiur Rehman Lakhavi, the mastermind behind the Mumbai terror attacks in 2008, because his continued detention under public order legislation was “unlawful”. The English courts face stern criticism for being afraid of breaching terror suspects’ human rights whereas their (arguably venal) Pakistani counterparts are accused of having historic ties to jihadis. But in fairness, unlike Irwin J or Collins J, Pakistani judges may after all face the further dilemma of being targeted in suicide attacks for not granting bail so perhaps there are more attractive reasons to forgive them for tolerating extremism. I am generally suspicious of all things David Cameron but I agree with him that British Muslims need to do more to stop radicalisation.
Just the other day, walking in north London in the middle of the holy month of Ramadan I passed a synagogue, a church, a temple and a mosque. Security at the synagogue was beefed up. The church looked deserted. Women dressed in colourful sarees with bindis and henna stained hands congregated outside the temple. Friday prayers had just broken off at the mosque and about fifty wild-eyed men loitered outside and their behaviour unsettled even me, a native of Karachi – arguably the world’s most dangerous city. To a foreigner, the ignorance observable in British Salafism is probably the type of Jahiliyyah against which the early Muslims, Prophet Muhammad (Peace Be Upon Him) and his companions, undertook to preach their message. (Here Salafism and Wahhabism are deliberately used interchangeably despite the former’s objection to doing so.)
The early Muslims were a minority; they were persecuted for their monotheistic beliefs and were provided refuge by Abyssinia’s Christians. However, the unity of nascent Islam evaporated soon after the Prophet’s death and the sectarian schism, which cripples much of the Muslim world today, came to consume the polity he had created in the Hijaz. I think that he would be badly disappointed with most Muslims today. So there is no point claiming, like David Cameron does, that calling ISIS or ISIL “Islamic State” enhances their credibility. Jihadis are the new Jahiliyyah. Islamic State or not, that is the bottom line. I don’t mean to single the Salafists out in any way. However, over the past few years Salafi terror groups have killed so many people that it’s difficult to praise their ideology.
Anyhow my old friend and Arabic teacher Professor Bruce Ingham, a distinguished specialist in the Najdi dialect and the extinct American Indian Lakota language, would surely opine that the drafting of the Terrorism Act 2000 (Proscribed Organisations) (Amendment) (No. 2) Order 2014 leaves a lot to be desired because article 2 (proscribed organisations) talks about “Islamic State of Iraq and the Levant (Islamic State of Iraq and al-Sham) (Dawat al Islamiya fi Iraq wa al Sham (DAISh)).” This may seem correct at first blush, but to the Arabic reader it is obvious that by missing an “L” the draftsman has mixed up Dawa (invitation/propagation) with Dawlah (state). But the beef between the British state and the new age of British Muslims, who speak good English but remain colossal misfits in British society, is ultimately much bigger than such trivialities.
DD, a self-styled terror Imam, is not an adherent of the Islamic State. Instead, he cheerleads for the lunatic group al-Shabaab. DD suffers from psychotic illness and is on antipsychotic drugs. He appealed against decisions to resurrect anti-terrorist measures, imposed for his involvement in Islamic extremism including radicalising British Muslims and fundraising for terrorism, on his release from prison. The 39 year old Somali came to the UK in 2003 and was granted asylum the same year and obtained indefinite leave to remain. As a teenager, DD had experienced the murder of his uncle, aunt and two cousins. Their corpses were left to decay because the warlords who murdered them did not allow them to be buried. DD then worked in Dubai as an Imam, lived in Denmark but returned to Somalia where he witnessed his brother and father’s murders and was himself held for ransom. On his release he escaped to the UK. His brother and mother died in 2007 and he became depressed. Because of his suffering he started to hear noises and voices.
He presently lives in the UK with his wife (who apparently has a “relatively poor command of English”) and seven children. His 19 year old son, under special needs, suffers from speech and mobility problems; his 17 year old daughter is a college student; his 16 year old son is pursuing GCSEs; his 12 year old son and his 5 year old son are at school; and his two youngest children are aged 2 and 1. After being granted asylum in 2003, DD visited Somalia in 2007 with other extremists. He became one of the people spearheading an extremist website. He was selected because of his experience and the UN found that the site (al-Qimmah) was “an integral part of al-Shabaab’s da’wa (propagation) apparatus.” DD denied involvement with al-Qimmah but evidence showed he visited the site and tipped its management off about “enemy action”. During his criminal trial, he admitted to posting extremist praise about jihad and martyrdom using a pseudonym. A video of armed men eliciting financial contributions, from those who could not fight, was found in the boot of DD’s car.
He was also involved in other jihadi websites and chatrooms. Large sums of money, and email correspondence, traceable to him confirmed his fundraising for al-Shabaab but at trial he defended himself by saying that the money was for humanitarian aid. DD and his co-defendant Yusef were acquitted in 2009; al-Shabaab was proscribed by the US in 2008 and in the UK in 2010. In 2011, DD gave an interview to al-Furqan radio station and said that he supported al-Shabaab in their war against the Somali government and African Union Mission in Somalia. (In 2013, al-Shabaab chillingly slaughtered shoppers in Nairobi’s Westgate mall: survivors reported that the gunmen released those who could recite the Shahada. Further attacks followed in 2014 near Lamu on the Kenyan coast and in 2015 on Garissa University.)
A terrorism prevention and investigation measure (TPIM, also see here) was imposed on DD in October 2012. Various restrictions imposed on DD’s activities meant that he was prohibited from using the internet, had to wear a tag at all times and was restricted from possessing and using modern methods of communication. His family members could use internet devices but only in his absence. He was not allowed to possess more than a £100 (later revised to £200) and was also subjected to property and association measures. DD was jailed because of serially breaching his TPIM. It was cancelled each time he was jailed only to be revived when he was released and on each occasion he appealed against the TPIM’s revival. The breaches included entering cyber cafes, meeting prohibited associates and accessing his email account from associates’ houses. In April 2013, he was charged with breaching the TPIM and was arrested. He pleaded guilty to 3 counts of breaching the TPIM in relation to the restrictions on the use of electronic equipment and on association and received 9 months’ imprisonment as punishment.
He was released in August 2013 and the TPIM was revived. In September 2013, DD was arrested for two more breaches of the TPIM because of an unauthorised meeting and use of a computer at the address where the meeting took place. In April 2014, following a plea of guilty, he was sentenced to 15 months’ imprisonment for the two breaches. Because of time spent on remand, he was released on licence in May 2014 but was retaken into custody again because he purchased a TV with internet. (The officers on the scene did nothing to prevent the delivery of the TV.) In July 2014, he was released under licence only to be re-arrested the following month for yet more breaches but it was decided that it was not in the public interest to charge him. In March 2015, the police found and seized mobile phones, a computer, three internet routers (two of which did not work), £4680 in cash and a MP4 player.
Medical evidence suggested that he suffered from post-traumatic stress disorder as a result of his family being murdered in Somalia. He showed signs of paranoia and thought that his tag contained a camera and a bomb and also made weird noises. He unusually and psychotically believed that the tag was fitted to punish him. The measures taken against DD also restricted his wife and children’s use of the internet. In particular, because he only had a computer that provided access to the internet by connection to a fixed line, his eldest daughter’s study for a two year course in a college in Birmingham was hampered. She had to compete for the use of that computer with her siblings and was not permitted to access the internet through her phone when DD was at home (which he mostly was).
DD’s tag was a bit bigger than a sports watch. It transmitted signals to a monitoring box and the information was relayed to a monitoring company. It was said that he did not follow instructions on charging the tag properly. He either overcharged it or charged it at night whereas he was meant to charge it in the morning and evening for 45 minutes and not at irregular intervals: Collins J was concerned that “this may have something to do with his view of the tag resulting from his mental state.”
Because one of DD’s children had playfully jumped on him this year and trod on the tag, he thought this might have damaged the tag. Apparently, the tag is also not designed to withstand the wear and tear – the damage – that is caused to it by the physical movements (prostration) of a devout Muslim who performs his prayers five times a day. He consequently felt suicidal and suffered from insomnia and banged his head against the wall because of mental illness (his family was distressed by his behaviour). The social worker who provided a statement detailing the effect of the TPIM on the family was concerned about the disruption to the children’s education. The abnormality of the situation caused them to be distressed, humiliated and saddened. The social worker recorded that DD’s wife looked haggard, did not smile at all and moved lethargically for her age.
Oddly one of the breaches, of which DD was convicted of in June 2013, occurred because of his appearance on Royal TV in which he denounced al-Shabaab and retracted his support for them because they murdered someone he respected as a teacher. An expert’s prognosis evaluated DD being prone to crises from the TPIM. For Professor Thomas Fahy (the Home Secretary’s expert), the intrusive tag invited suspicion from a paranoid person and DD’s paranoid beliefs about the tag would not necessarily take a different form if the tag were removed. Professor Fahy thought that, as an item of surveillance equipment, the tag was unique because it was forcibly attached to DD’s body. Both Professor Fahy and Dr Quenton Deeley (DD’s expert) concurred that DD had not exaggerated his symptoms.
DD argued that the effect of the TPIM on his mental health breached article 3 ECHR. He also contended that the TPIM disproportionately impacted article 8 ECHR by its effect on his family and private life and that of his wife and children. The TPIM was due to expire on 6 October 2015. It was clear to the court that DD’s extremist mindset and support for al-Shabaab were unflinching: both the open and closed evidence pointed to this conclusion. Collins J held that the although the fanatical Imam’s rights under article 3 ECHR had not been breached by a requirement to wear the tag, his deteriorating mental health and his paranoid/delusional belief that the tag contained a bomb had instead made the requirement fall foul of article 3. Collins J regretted at para 8 that Cranston J, whose order embodied the preliminary issue (“whether the imposition of a TPIM on DD is a breach of his rights under article 3 ECHR and consequently a breach of section 6 of the Human Rights Act 1998”), had made “an unfortunate decision” because:
It depended on assuming that the imposition and maintenance of the TPIM was properly based on assessments made by the Security Service.
The assessments contended that DD supported al-Shabaab. He helped in sending funds and equipment to support terrorism related activity and radicalised, recruited, assisted and funded individuals to travel to Somalia for jihad. However, for Collins J:
Whether or not those assumptions are correct and the question whether the TPIM or any of its measures breach any article of the ECHR needs to be determined when all the material evidence, both in open and closed hearings, is considered and evaluated.
Ouseley J heard the preliminary issue and eight months ago. He dismissed DD’s application and held the TPIM did not breach DD’s article 3 rights. However, the evidence suggested that his mental health had deteriorated since then. Ouseley J did not consider any closed evidence because the assumption was made that the case made by the Security Service was accepted. Collins J was perturbed because no direct evidence existed as regards why DD chose to breach the TPIM given he must have realised that, if discovered, the breaches could lead to jail. Although Collins J wondered (at para 61) whether DD’s mental problems may have led him to take actions which would be damaging to him, he refrained from speculation. Applying the principles of judicial review it was not possible for the court to say that the approach of the authorities was flawed. The authorities continued the TPIM with the full knowledge of the doctors’ view that the TPIM had significantly impacted DD’s mental health. Yet the deterioration in his mental state resulted from the particular measures rather than the TPIM itself (the management of which had been overseen by the official in charge, well aware of her duty of care, who when necessary liaised with ministers to advise them).
Recalling SSHD v MB  QB 415, where Lord Phillips CJ, Sir Anthony Clarke MR and Sir Igor Judge P considered the correct approach to decisions to impose the measures which should be included in control orders, the instant court held that:
69. The more grave the impact of any particular measure, the more compelling must be its need. Thus, albeit judicial review principles must be applied, proportionality and not irrationality is material in deciding whether a particular measure is needed. While deference is to be given to the views of the Secretary of State and inevitably to the advice of the Security Service, the court may have had further evidence than that available to them. So here, the medical evidence has been tested before Ouseley J and me and the serious impact on the appellant’s mental health is all too clear.
Because of article 3’s absolute terms, Collins J entertained no excuses for allowing it to be violated and instead held at para 71 that “conduct which may not be inhuman or degrading for one person may be for another on whom it has a particular effect.” He mentioned Commissioner of Police for the Metropolis v ZH  EWCA Civ 69. In that case, the court was confronted with a situation where a young man who suffered from learning disabilities and was unable to communicate by speech was fixated by the water in a swimming pool he had visited with his specialist day school carers. The pool manager reported him to the police and he was placed in handcuffs and leg restraints, taken to a police van and detained in the cage at the back of the van for 40 minutes. Sir John Dyson MR, Richards and Black LJJ held that subjecting the autistic and epileptic young man to conditions which would have been acceptable for a normal healthy individual breached article 3 because of being unnecessary and humiliating. Collins J used Sir John Dyson MR’s approach to illustrate by example that an individual’s mental state may make him more vulnerable and so the effect on him of particular conduct will be the more severe. He equally flagged up Ramirez Sanchez v France (2007) 45 EHRR 49, involving the infamous terrorist known as “the Jackal”, where the Grand Chamber rehearsed its jurisprudence and applied a high threshold and expected there to be proof beyond all reasonable doubt that there had been a violation of article 3.
Collins J stressed at para 73 that in light of Dybeku v Albania (41153/06)  ECHR 1109 – where the Strasbourg Court emphasised three particular elements to be considered in relation to the compatibility of the applicant’s health with his stay in detention – the individual’s medical condition, the adequacy of medical assistance provided and the advisability of maintaining the measures in view of the individual’s state of health needed to be considered. Holding that “mutatis mutandis, those considerations are material in this case” the court also reminded itself of Ouseley J’s observation that the need and proportionality of the measures had to be considered. “I accept that a tag is a most useful tool for the control of an individual,” said Collins J at para 77 in praise of its qualities as a surveillance measure but he could not close his eyes to the evidence that DD’s mental state had worsened and the court therefore held at para 78:
There can be no doubt that the tag may produce further deterioration and incidents such as that when his young child trod on the tag may well produce a crisis. Even if a greater degree of medical treatment is provided, there is a real concern that such deterioration will result in serious self-harm by the appellant. While I see no reason to dissent from Ouseley J’s view, in my judgment the situation now is such that there is a breach of article 3. There is reason to believe that the appellant’s ability to take any effective terrorism related activity is lessened. Evidence was produced that certainly some Islamic sects will not accept a person who is mentally ill as an Imam. The appellant’s mental state will be likely to be known by those it is feared he may seek to radicalise. Further, it has not been said that any of the breaches of the TPIM amount to terrorism related activity nor is there any suggestion that his wife or children have been radicalised by him or hold extremist views.
The deterioration of DD’s mental state, since Ouseley J decided the preliminary issue, was such that there was a breach of article 3 and the monitoring measures had to be quashed. In light of the testing nature of the facts, Collins J urged caution and held that:
86. … Since the appellant has the delusion that there is a bomb in his tag which will be detonated so that MI5 can kill him if a judge allows his appeal, great care should be taken in dealing with the removal of the tag. It may be considered sensible not to inform him of my decision that the tag must go until on some pretext the tag has actually been removed.
It was also apparent to the court that the electronic communication and association measures deployed to monitor DD impacted his family and interfered with their article 8 rights. The interference was permissible only if it was proportionate and the electronic communication measure significantly impacted DD’s children. In particular, it created problems in making and maintaining friendships and it affected their education. A security service, official (JZ), “accepted that a single slow internet connection at home was adversely affecting the children’s ability to engage in schoolwork.” No evidence existed as regards the children helping their father gaining access to prohibited websites or make forbidden communications. The court threw out the proposition that DD’s children would give him the password to a secure internet connection because no evidence existed that they had done so in the 2½ years that the restrictions were in force. Collins J therefore took the following view:
84. I think that it has now become disproportionate to continue to bar the possession of laptops and iPads together with wireless connection to the internet, albeit only one for each child should be permitted. I think too that there is no good reason why they should not be allowed to use their mobile phones and laptops or iPads when the appellant is in the house. It must be made clear to them that they must on no account allow their father to use any of the devices and that, if they did, it would render him liable to arrest and imprisonment and they too could be committing a criminal offence by aiding and abetting him to breach a measure of his TPIM. Whether or not a password or some other restrictions are needed I shall leave for any argument when this judgment has been considered.
The court therefore quashed the monitoring measures, varied the electronic communication measures and did not disturb the other measures imposed on DD.
You walk into a Tesco express, in north London, a couple of days before Eid al-Fitr. Two Asian cashiers are irritated at each other because they are fasting and it’s almost 10:00 PM and they’re starving. But customers are being put off because of their bickering: the white folks just can’t get what’s going on so you volunteer and explain that the two quarrelling staff are dying to get home to break their fast with their family. You apologise to the white folks on behalf of your fellow Muslims by explaining that you came for the £5 beer deal. Your own realism about Islam is connected to the knowledge that everyone, who is able to afford it, in Pakistan drinks despite prohibition. Since, the mullahs are the most loyal customers of the government operated licence shops in Karachi, you can only recall the disproportionate number of bearded Wahhabi looking men cueing up to buy Murree vodka and beer. Back in the Tesco express, the Christian Nigerian guard agrees with you that you’re probably better off than the fasting Ummah. Both Nigerians in the store agree with you about the supremacy of Afrobeat and all that accompanies it.
Above I began on the rather provocative premise that I agreed with the prime minister. It’s hard to disagree with him that an indifferent attitude towards jihad is not in Britain’s interests. But how does he plan to wash off the legacy of the West’s long history of promoting Islamic extremism? Unless he accepts that his predecessors in fact created modern day jihad, his message may well remain impotent. He has also expressed his unhappiness about Muslims flying the IS flag. An identical flag is used by al-Shabaab which is formally a part of al-Qaeda. The crudely written Arabic words on these simple banners (probably devised by the early Muslims) only say: “There is only one god. Allah, Muhammad [is his] Prophet.” To an ordinary person, nothing about these words resonates with terrorism. To some it may even seem quite offensive that David Cameron would like to see these words banned. The same words, in superior calligraphic form, appear on the Saudi Arabian flag and the flag of al-Qaeda. Despite the larger political underpinnings and demonic symbolism of the flag, non-jihadi Muslims everywhere will inevitably utter these words in their daily lives; so that’s it, the solution must be to ban these words, or make the Muslims say their prayers in English, in fact why not just ban Arabic! Or perhaps just ban Islam. I’m sure it’ll please loads of folks everywhere.
The government is obsessed with “integration”; like a broken record, it keeps repeating the same thing over and over again. The jihadis have an integration problem because they are anti-British. Foreign spouses have an integration problem and they must learn English; they must also pay to get integrated. In reality, the government just wants to bully poor people who sell assets to fund visa applications and the vicious cycle of appeals. For example, the Hindu communities in the UK, with whom I have a connection, are not contributing to terrorism. But they still intensely dislike the white stance that Indians lack integration. In fact, I can say that in England the Hindus detest the goras (“whites” in Hindustani) for the decades of racism that they have suffered; the UK is hardly a “land of milk and honey” (or Jannah) that the politicians make it out to be. Had it been milk and honey (as promised to the devout in al-Qur’ān), so many young people would not abandon it for a life of foreign jihad. My own Rajput ancestors converted to Islam when they realised that riding out to fight the Mughal Empire, leaving the women to perform Jauhar, was pointless. In al-Qur’ān, it is said that jihad comes in many forms and to wage one on behalf of the Hindus of England, against the bullying of the Home Office, will always be a pleasure because this makes it feel like Partition never happened.
The Human Rights Act 1998 and Collins J were instantaneously denounced when this judgment was given. It’s hard to see how Collins J is at fault because he is not part of the double standard on terrorism. He didn’t send any jihadis to fight the Soviets and was not a part of the so-called “Hayatabad Milieu”. All he did was make things less controversial but he is charged with being involved in a “human rights farce.” I think that Collins J wrote quite a balanced judgment and really cared about the issues at stake; he was clear “that al-Shabaab was at all material times a terrorist organisation cannot be and is not doubted.” In fact, the judge ranks poorly on the culpability index for helping fanatics. He was just a nice guy doing a really hard job.
David Cameron’s obscure and misconceived programme for tackling the allure of jihad includes plans for parents to cancel their children’s passports. Keeping such individuals in the UK contradicts the conventional wisdom, of the Afghan jihad, that the best way to deal with such characters is to let them go and die in the way of Allah. A big enough jihadi exodus may even ease up the tensions in the UK’s claustrophobic society. If enough people (hundreds of thousands) prefer a life of “milk and honey” under ISIS, it may even assist the prime minister’s immigration policy: Allah knows Britain may even need to invite hundreds of thousands of new “replacement” immigrants because its Muslims were so unhappy that they went off to live under a bombed out caliphate. We are told that hundreds of people have defected to the Islamic State but no one knows how many people want to swap a life in the UK for jihad?
No matter how hard the Cameron government crusades against the existential threat presented by the jihadis it probably won’t make any difference unless he can stop his Saudi friends from spending billions on supporting fanaticism everywhere. (Ultra-conservative Wahhabism is the world’s fastest growing religion.)
It would be a shame if he makes his own country more like theirs by cracking down on free thought. Banning the (likely) flag of the early Muslims, just because some crazy people use it for their own designs, is unlikely to help David Cameron. Posing for the media with hijab clad British students and preaching about segregation and extremism won’t help him either. Rather than making racist comments about people fleeing persecution by calling them a “swarm”, he must remove his government’s purdah over the shady alliance with the corrupt and decadent Saudis: they run a system where women are inferior to men and people are publicly beheaded because some moronic mullah found them guilty; and they support the likes of Jamaat ud-Dawaa (an offshoot of Lashkar-e-Taiba), Zakiur Rehman Lakhavi and Hafiz Saeed.
Pakistan has suffered a lot because of the spread of Wahhabism. The brutal General Zia – a key American, British and Saudi ally who introduced the disgusting Hudood and Blasphemy laws – even wanted to devalue the female vote to equal half that of a male. Thankfully, Zia’s ugly name has been permanently deleted from the 1973 Constitution; his Saudi Arabian laws didn’t really gel because of their incompatibility with the wider English legal system in Pakistan. Asia Bibi, who was the first woman to be sentenced to death for blasphemy, has recently had her death sentence suspended and the Supreme Court of Pakistan has ordered an examination into all records relating to the incident where she was accused by other women of insulting the Prophet Muhammad while collecting water from a well in rural Punjab. I think that Bibi should be released immediately because she is clearly wrongly accused by some other jealous Muslims: I doubt that the Prophet, who was routinely abused by his fellow Meccans for his monotheism and therefore made alliances with the Jews and Hanifs of Arabia (who were influenced by Judeo-Christian ideas about religion), would have given her the death sentence for insulting him or his family members (most of whom were slaughtered by Yazid, an iconic figure in Wahhabism, at Karbala). In relation to Pakistan, where fanaticism is endemic, Jinnah – a believer in methods constitutional and the darling of the Ahmadis and Parsis (Zoroastrians) – must literally be turning in his grave. To the Constituent Assembly, on 11 August 1947, with great optimism for the future, which may well have been misplaced, he simply said:
I cannot emphasise it too much. We should begin to work in that spirit and in course of time all these angularities of the majority and minority communities, the Hindu community and the Muslim community, because even as regards Muslims you have Pathans, Punjabis, Shias, Sunnis and so on, and among the Hindus you have Brahmins, Vashnavas, Khatris, also Bengalis, Madrasis and so on, will vanish. Indeed if you ask me, this has been the biggest hindrance in the way of India to attain the freedom and independence and but for this we would have been free people long long ago. No power can hold another nation, and specially a nation of 400 million souls in subjection; nobody could have conquered you, and even if it had happened, nobody could have continued its hold on you for any length of time, but for this. Therefore, we must learn a lesson from this. You are free; you are free to go to your temples, you are free to go to your mosques or to any other place or worship in this State of Pakistan. You may belong to any religion or caste or creed that has nothing to do with the business of the State. As you know, history shows that in England, conditions, some time ago, were much worse than those prevailing in India today. The Roman Catholics and the Protestants persecuted each other. Even now there are some States in existence where there are discriminations made and bars imposed against a particular class. Thank God, we are not starting in those days. We are starting in the days where there is no discrimination, no distinction between one community and another, no discrimination between one caste or creed and another. We are starting with this fundamental principle that we are all citizens and equal citizens of one State. The people of England in course of time had to face the realities of the situation and had to discharge the responsibilities and burdens placed upon them by the government of their country and they went through that fire step by step. Today, you might say with justice that Roman Catholics and Protestants do not exist; what exists now is that every man is a citizen, an equal citizen of Great Britain and they are all members of the Nation.