Some serious questions about rules of evidence, or the judgement of some judges who apply them, are raised by the acquittal at the Old Bailey yesterday of the brother and sister of one of the two British Muslim suicide bombers of a Tel Aviv bar Aviv on 29th April 2003.
Among the alleged offences of which the pair of siblings were found not guilty was their failing to inform the authorities of their brother’s intention to commit an act of terror, an offence under section 38 of the amended Terrorism Act of 2000.
The prosecution case rested, for the most part, on an exchange of emails between them and their brother that took place immediately before the suicide bombing in which he took part. These emails, so the prosecution alleged, showed the two defendants had prior knowledge of what he was about to do.
One, sent by the bomber to his brother a week before the bombing, warned: ‘Difficult times may lay ahead for you and the family in the next few weeks or months. Plan now and get rid of any material you may consider problematic. Please give a copy of the following message to my wife: “After reaching our destination Allah guided us to his friends who … said they needed our help very much.… Know that everything is just a test.… Look after [… their children] and bring them up well. We did not spend a long time together in this world but I hope through Allah’s mercy and your patience we can spend an eternity together”’.
Another, sent by the bomber's sister to him the following day by way of reply, went: ‘We are happy that you are focused. … We all have to be firm and focused with reality as time is slipping away. There is really no time to be weak and emotional…. When we see you again it will be like only half a day has passed. You have no time for emotions.’
The defence denied the emails showed the two defendants had prior knowledge of the imminent bombing in Israel, and the jury accepted there was reasonable doubt.
What is problematic about their acquittal is that the jury were obliged by the judge to come to a decision on the matter in ignorance of some further circumstantial evidence the prosecution had wished to submit but which the judge ruled inadmissible.
That evidence was the testimony of former pupils of two different Derbyshire primary schools at which the sister of the bomber briefly taught as a supply-teacher in the immediate aftermath of September 11th 2001.
Children at both schools, apparently, had independently reported the woman had voicedto them praise of the attack on the Trade Towers, and, more importantly in this context, had claimed, according to one of them aged 10 at the time, that she was ‘on bin Laden’s team’.
The judge ruled the childfren's testimony inadmissible on the grounds that they 'were unreliable witnesses whose statements could not be corroborated’.
What makes the judge's ruling problematic is two-fold. First, it seems there was corroboration of what the children said their teacher had told them in the form of a tacit admission by her made shortly afterwards. Apparently, soon after the children made their claims about what the teacher had said, she was brought before the educational employment agency which had placed her in their schools. According to it, she ‘accepted that the comments were inappropriate and undertook not to repeat them’.
If this is not corroboration by the defendant that she had made the statements the children claimed she had , what then is?
Second, the police apparently discovered in the home of this defendant literature of the now banned Al-Muhajiroun, a break-away splinter- group of Hizb ut-Tahir to which her fellow-accused is also reported to have belonged.
Whatever difference between them, both these groups are on record as supporting suicide bombings in Israel.
Al-Muhajiroun (AM) was set up by Omar Bakri Mohammed in 1996 . A report on this organisation was published in May 2003 written by Michael Whine, Communications Director of the Community Security Trust Division of the Board of Deputies of British Jews. A paragraph of this report runs:
‘From their head office in the Lee Valley Techno Park in north London, AM claim to provide physical support, including finance and recruitment to overseas Islamist groups, including Hamas, Egyptian Islamic Jihad and Hizbollah…. and to encourage British volunteers to train and fight abroad’.
In the context of the trial, surely these facts about the ideological proclivities of the accused amount to further circumstantial corroboration of what the schoolchildren had claimed they had been told by one of them after September 11, and combined with what the teaching agency claimed should have rendered their testimony admissible.
Had the judge allowed the prosecution to make the children's testimony known to the jury, it is possible it may still have decided to acquit the two defendants.
Even if it had, that testimony plus the reported filiation of one and source of literature found at the home of the other make it impossible to believe the complete incredulity they expressed upon their acquittal at what their brother had done.
Said the bomber's sister of him, ‘I cannot believe he would have contemplated such a thing – that he could think of planting a bomb and killing innocent people. It is beyond me.’
Her brother added on their joint behalf: ‘’We want to make it clear we did not know what our brother was going to do. It shocked us as everyone else.’
Since their brother did no more than that which Al-Muhajiroun and Hizb ut-Tahrir consider to be perfectly legitimate and commendable, I feel like saying: go tell it to the Marines!