February 26, 2003

MARK KLEIMAN WANTS TO KNOW if I condemn this prosecution and conviction of British Muslim cleric Abdullah el-Faisal, for “soliciting murder and inciting racial hatred.”

The answer is, I don’t know, because I’m not sure what he was convicted of. Solicitation of murder usually means (in the United States, anyway) trying to have a specific person killed — that’s how I read the story when I commented, earlier, on the striking fact that the judge decided to exclude Hindus and Jews from the jury. (I thought it was something like this solicitation of murder prosecution).

Kleiman seems to think that this is purely a “hate speech” prosecution. I’m against those. Is that what this case is about? I don’t know; the story’s certainly consistent with Kleiman’s reading, but it’s not clear.

This story from the Times, however, says:

In his lectures, which included titles such as No Peace with the Jews and Them versus Us, the cleric exhorted audiences to take up acts of terrorism, including the use of chemical and nuclear weapons. He also tried to recruit British schoolboys to terrorist training camps.

In the United States, under the First Amendment, you could only convict if you could convince a court that these statements were intended to produce, and were likely to produce, imminent unlawful activity. From these facts, it’s entirely possible that these statements would meet the test. Indeed, recruiting schoolboys to terrorist training camps would seem to fall outside any reasonable zone of free speech, wouldn’t it? That’s not just speech, it’s illegal activity in itself. After all, “your money or your life” is speech, but it’s not protected by the First Amendment. Neither is recruiting terrorists. (As distinct from abstract advocacy of terrorism.)

And, as Kleiman surely knows, the First Amendment doesn’t apply in Britain. But, leaving the Constitution aside, do I think that it’s wrong, morally or (in a more general, common-law-ish sense) legally, to punish someone for that kind of conduct? Uh, no. Recruiting schoolboys as terrorists seems to me to be classic criminal conspiracy.

It’s possible, of course, that these stories give the wrong idea of the facts, but Kleiman didn’t state what facts he thought made this case particularly troubling, so I can’t say more than I have.

UPDATE: British solicitor Martin Pratt emails:

El-Faisal was convicted of three counts of Soliciting to Commit Murder under The Offences Against the Person Act 1861 and three counts of Incitement to Racial Hatred under The Public Order Act 1986.

From your explanation, it seems that in order to obtain a conviction for solicitation to commit murder the requisite elements are pretty similar to those in the United States.

Incitement to Racial hatred on the other hand, as you say, is a hate speech crime and I am pretty sure would not be compatible with the First Amendment. Under the 1986 Act if a person -

* Uses words or behaviour /displays written material, which are

* threatening/abusive/insulting, with

* intent/likely to stir up racial hatred

Then upon indictment he may receive a prison sentence not exceeding 2 years.

For the purposes of the Act, racial hatred is defined as -

“Racial hatred means that hatred against a group of persons in Great Britain defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins”.

The Tory legacy to the criminal justice system is not glorious, and this is one example of their over attention to headline pleasing sentencing guidelines and under attention to properly defining what exactly an offence consists of. Prosecutions under this offence are rare as no-one (so far as I am aware, I have not practiced criminal law since my articles, this all comes from half remembered law school lectures) has yet managed to define “hatred” which is pretty fundamental to the offence.

However, offences under the 1861 Act are far more serious and Solicitation to Commit Murder can carry a life sentence which I would imagine the judge will be considering. Of course in England and Wales, once the jury has convicted, it is for the judge to determine sentence.

So there you are.