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Thu 21 August 2014
25 Shawwaal 1435 AH  

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Lord Carlile's Operation Pathway report - A complacent assessment

" On the 9th April 2009 the Press Association reported that the Prime Minister ...said: "We are dealing with a very big terrorist plot. There are a number of people who are suspected of it who have been arrested. That police operation was successful. We know that there are terrorist links between terrorists in Britain and in Pakistan. That is an important issue for us to follow through and that's what I shall be talking to President Zardari ....we had to act pre-emptively to ensure the safety of the public...." ...taking the statement as a whole and in the context of a press enquiry....in my view it is absurd to suggest that any future jury might have been prejudiced by it, had they become aware of it.

...As the Merseyside Police emphasised to me, they were concerned about various possible threats including....the threat to arresting officers, in the light of the murder of DC Stephen Oake in Manchester during the "ricin plot" arrests....As Merseyside Police said to me, if armed officers are used they "dominate" the arrest situation; the operational judgement was that this was appropriate in this case. Whilst the arrests lacked visual subtlety, it is probably right that in such circumstances no chances should have been taken by the police".

Operation Pathway, Report following Review by Lord Carlile of Berriew QC, Independent Reviewer of Terrorism Legislation, November 2009

Lord Carlile's report does nothing to address the disquiet caused by the very public arrest of twelve Pakistani students in Liverpool in April 2009, who were subsequently found entirely innocent of terrorist activity. He appears to have accepted at face value the Police's and security agencies' accounts and justifications. He has backed the tactics of 'Operation Pathway', which one veteran journalist described as "a shambles" [1]. An indication of his unwillingness to challenge is the reference he makes to the ricin plot [quoted above] without even qualifing it as the 'so-called ricin plot' - another case in which eight North African men were acquited of poison charges [2]. In his Operation Pathway report, Lord Carlile does not question the intelligence assessment and maintains that the way in which the arrests were carried out was correct.

A scandalous and shameful episode of cavalier intelligence gathering and analysis and gung-ho policing targetted at young Asian men is thus apparently air-brushed away with some low-impact recommendations:

  • senior security officials should in future use a back entrance to Downing Street to avoid photographers
  • police officers involved in counterterrorism policing should be trained in the law relating to arrests and its potential effect on detention under TA2000 Schedule 8
  • it would be useful too if a government Minister were to have added to his/her responsibilities the coordination of the community consequences of any major counter-terrorism operation
  • Crown Prosecution Serice expert and directly vetted lawyers should be informed of ongoing inquiries likely to result in arrests, well before any such arrests take places

    Lord Carlile's Inquiry could have been an opportunity to question at least four issues:

  • the high level of publicity given to arrests of Muslims under the Terrorism acts and the impact on fair trial - there is a presumption of guilt in media coverage which will inevitably influence jurors. Fortunately in the case of those arrested in Operation Pathway the matter did not proceed to trial, but the lessons need to be learned. Why are police officers and 'sources close to the enquiry' being quoted by journalists?
  • the Intelligence agencies seem to be spreading their net of informants which cannot be beneficial to society - Muslim acts of worship are prompting suspicion and criminalization [see below]
  • the Terrorism legislation works on a lower burden of proof then other equivalent criminal legislation -this the reason why spurious arrests are taking place. Does this not mean that there is bad law that needs to be reviewed?
  • Is there a danger of the politicisation of police operations? Was there need for the unfortunate Metropolitan Police's assistant commissioner, Bob Quick, to take his papers on Operation Pathway - spotted by journalists - to Downing Street?

    Lord Carlile notes in his report that he wrote to all the solicitors of the detainees for an opportunity to interview them. Apparently the take up was mimimal - perhaps the legal camaraderie knows a thing or two about Lord Carlile's predispositions and decided that this type of engagement was not going to be particularly fruitful. The Establishment has closed ranks and the real lessons have not been taken on board.

    It appears that the whole saga was dependent on the interpretation put on one email, found on the pen drive of Abid Naseer, one of the men arrested:
    Hi Buddy
    I am sure my email will find you in good health and all your family members are enjoying them self.
    I am doing well as usual and having good time. The weather is getting warmer here and we have loads of things to enjoy. You know how it is over here when it is summer. People out to the beaches and going on holidays. Well we had some short trips to riverside as well. My mates are well and yes my affair with Nadia is soon turning in to family life. I met with Nadia family and we both parties have agreed to conduct the Nikkah afer 15th and before 20th this month. I have confirmed the dates from them and they said you should be ready between these dates. i am delighted that they have strong family values and we will have many guests attending the party. I am sure Nadia was the right choice for me at this time because I was getting older day by day LOL Anyways I wished you could be here as well to enjoy the party. That's all from here, nothing new to write down. Pay my love to Hassan and regard to all your family members.
    Thanks
    Kind regards

    Lord Carlile observes, "the intelligence assessment of the email was founded on the experience of several years of intense scrutiny and policing of Al Qaeda in the UK and, in co-operation with others, around the world....the email, taken together with other intelligence in this context gave rise to the assessment that early stage attack planning may be taking place; and possibly that there was a state of readiness to commit a terrorist attack in the UK, which might include the use of explosives".

    Based on this type of assessment, this is how the events unfolded, as reported in the media of the day:

  • Sky, 8th April - "Officers from the North West Counter-Terrorism Unit supported by Merseyside Police, Greater Manchester Police and Lancashire Constabulary have carried out a series of raids....Sky's crime correspondent Martin Brunt said: 'It's been described as a very big counter-terror operation. Unofficial sources have talked about a big plot or number of plots. It's also thought these arrests have had to be moved forward. This is rather an unusual time of the day to make these kind of arrests.' Brunt said he told been told earlier unofficially that a number of men of Asian background had been arrested around the Liverpool university area."
  • The Guardian, 9th April - "More than 100 officers, with a helicopter in support, surrounded the Lancashire town's new Homebase store yesterday and arrested two men working for a private security firm....Fahy [Manchester Police Chief Constable] said reports of Old Trafford or the Trafford shopping centre being the targets were 'purely speculation' on the part of the media"
  • The Times, 10th April - "in Liverpool, where five suspects were arrested on Wednesday at three locations east of the city centre, the search for a bomb factory focused on a dilapidated block of flats where overseas students lived. Both ends of Highgate Street were sealed off soon after 4pm on Wednesday by dozens of police vehicles and more than 50 uniformed officers as their armed colleagues led a raid on the flats.Teams of forensic science specialists carried large boxes of property yesterday from one of the 24 flats, which are set back from the street behind high steel fencing. A senior detective said that the suspects were believed to have been 'collecting material for a large explosion'. The student tenant of a small terraced house a mile away, where three suspects were arrested after an armed counter-terrorism unit wearing balaclavas broke down the front door and smashed the front window... in Cheetham Hill, at the centre of the police operation in Manchester, some of those detained were said to speak Pashtu, a language used in the Pakistan-Afghanistan border region. Two of the arrested men had been living there since September with five others in a rented house from which neighbours often heard the sound of Arabic prayer tapes. They also attended prayers five times a day at a nearby Islamic centre...A Pakistani student detained and then released after the terror raids in Liverpool spoke yesterday of his shock. Muhammad Adil, a 27-year-old student in the last year of his MBA at Liverpool John Moores University, was confronted by counter-terrorism police as he sat eating peanuts with a friend outside the university library. 'Special forces with telescopes on their machine guns came and said 'hands up',' he said. He told the officers he was a student, but was made to lie on the floor and have his hands tied behind his back."
  • The Guardian, 11th April - "intensive searches of at least 10 addresses linked to the suspected al-Qaida plot in northern Britain have so far failed to turn up any clear evidence of a terrorist conspiracy, despite the huge resources devoted. Forty-eight hours after the arrests, sources close to the inquiry say no evidence has been found of bombs, bomb-making parts, precursor chemicals to make explosives, a bomb factory, weapons or ammunition...One senior source said 'nothing of huge significance' had been found, and accepted it was possible that no evidence could emerge before the 28-day limit to hold terrorism suspect expires...A central mystery remains how counterterrorism officials could believe such a serious plot existed when they were unsure of seemingly basic elements of the alleged conspiracy, such as the targets."
  • The Sun, 14th April reported on the discovery of 'bomb parts' in one of the searched premises, "Cops searching the homes of 11 terror suspects have seized bags of sugar — a common ingredient in home-made bombs. Sugar can be mixed with chemicals to create an explosive for use in bombs and grenades. Scientists were last night analysing it to determine if it was a secret bomb ingredient."

    Excluding one of the twelve who was released within a short time, the lack of evidence - including the sugar packets which were destined for a sweet dish - did not prevent the incarceration of the remaining eleven: two were released after 9 days, while others were held for two weeks, without knowledge of the charges against them. Those released in the first batch were electronically tagged and placed under curfew. Eventually District Judge Blake remarked on 22nd April, "the real prospect of evidence emerging needs to be much, much clearer...". Accordingly they were all released from detention under the Terrorism Act 2000. Ten of the eleven were transferred into immigration custody; one, a UK national, was released. Those in immigration custody then had their cases presented to the Special Immigration Appeals Commission (SIAC), and were not granted bail. Most then dropped their appeals and returned to Pakistan.

    It is remarkable that Lord Carlile did not criticise the tendency of police officers to provide briefings to the media - see The Times quote above. His report makes no reference to what was also a bumbling intelligence gathering approach: "Playing a leading role were teams of women who kept an eye on the suspects...they worked in two groups: one made up of 72 elderly women, the other young mothers with babies in prams. Both had undergone a crash course in surveillance techniques...." [[3] with infighting and "furious disagreements" between various constabularies and security units involved. [[4]

    The Human Rights lawyer Louise Christian was not far off the mark in observing the case was "not only a serious abrogation of the rights of 12 individuals but it is also a disaster for community relations. How can the police expect the Pakistani community to co-operate and give information about genuine terrorist threats if they see innocent young men being subjected to such obviously unfair treatment?" [[5]

    Postscript: On 3rd December 2009, a SIAC judge ruled that the detainee at the centre of the 'buddy' email could not be denied bail solely on the basis of secret evidence. Prior to this ruling people held under deportation orders could be refused bail solely on the basis of closed evidence that they, their lawyers, or the public had never heard. Gareth Peirce, his solicitor described the judgment as a 'historic' victory while the home secretary said he would appeal. [[6]

    1. James Slack in the Daily Mail, 25th Nov 2009
    2. See Secret State entry - The Ricin Dossier
    3. Gordon Thomas in the Daily Express, 19th April 2009
    4. Sean O’Neill & others in The Times, 22nd April 2009
    5. Writing in the Guardian's Comment if Free, 23rd April 2009
    6. Alan Travis in the Guardian, 1st December 2009

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