Is the Supreme Court right to stop Shamima Begum entering Britain to argue her case for regaining or retaining her British citizenship? Can she argue her case from her Syrian captivity?26 February 2021
The UK Supreme Court rejects Begum’s claim to be entitled to return to argue her case (February 25 2021).
IN THE SUPREME COURT, Lord Reed and four other judges unanimously ruled:
“The right for a fair hearing does not trump all other considerations, such as the safety of the public…
“The appropriate response is for the appeal [over the deprivation of her citizenship] to be stayed or postponed until Ms Begum is in a position to play an effective part in it without public safety being compromised….
“The Home Secretary was not satisfied that depriving her of her British citizenship would expose her to a real risk of mistreatment.”
The court concluded: “There is no perfect solution to a dilemma of the present kind.”
Actually, there may be a good solution.
The assertion that Begum, now 21, could not instruct lawyers to act for her and continue to give them instruction (as is the legal term) while she is in Syria was based on questionable information, Correspondent.World can reveal.
It is by no means obvious that Begum could not conduct her defence while remaining in a Syrian detention camp.
That claim — apparently not ruled on either way by the Supreme Court — seemed to have been taken at face value by the Court of Appeal.
Lord Justice Flaux had dismissed the possibility of Begum’s appeal simply continuing with Begum outside the UK.
“It is unthinkable that, having concluded that Ms Begum could not take any meaningful part in her appeal so that it could not be fair and effective, she should have to continue with her appeal nonetheless,” he wrote in a court judgment.
Journalists like myself who have actually been there wonder if he was presented with evidence of the on-the-ground realities.
I was myself in that camp and though it is in the countryside, my mobile phone was working. So too was whatsapp video.
There are in fact two options at the camp: using Syriatel, the wifi system used throughout Syria and run under the aegis of the Syrian government, or the Turkish wifi system, since the Turkish border is nearby.
Syriatel mobile cards are available in nearby town centre phone shops. In the Kurdish Syrian military headquarters in the nearby town of Hasaka, Syriatel works well. Should the Kurds wish to help any court hearings in the UK it could transfer her to Hasaka or to Rumailan prison for the court case period.
I was made to hand over my mobile phone when I was about to interview a prisoner there – presumably to stop the interview being transmitted live to the UK or anywhere. Cameras were permitted.
Yet the second-highest British court (the Court of Appeals) ruled that Shamima Begum had the right to be brought to the UK to pursue her claim of British citizenship. Its grounds for the ruling were not connected with whether she is justified in demanding her UK citizenship back. Rather it was about whether she needs to be in Britain in person in order to conduct the case.
The pro-Begum lawyers argued that, from her camp, it was technically impossible for her to be put on a video or social media link to the courtroom, and secondly that she would be unfairly constrained in what she could say by dangers she would face inside the camp if she said the ‘wrong things’.
That view was backed up by a former London Metropolitan Police chief superintendent Dal Bol.
He told ITV that Begum was in a camp controlled internally by former ISIS fighters, and if she said something ‘inappropriate’ her life would be in danger.
He erroneously said that ‘Isis fighters control who can come in and who can go out’ — in fact Syrian Kurdish army fighters or their delegates control entrances and exits — though former ISIS fighters have some ability to exert pressure internally on the camp’s inmates.
In its February 2020 decision, the main British tribunal deciding on her case had had concluded that “in her current circumstances, [Begum] cannot play any meaningful part in her appeal, and that, to that extent, the appeal will not be fair and effective”.
It nevertheless found against her, on security grounds.
In the now-overturned Appeal Court decision, Lord Justice Flaux had disagreed with the government’s argument that any unfairness was simply a product of Begum’s own actions.
The Secretary of State has made it abundantly clear that — unless ordered to do so by the Supreme Court — he would not grant Ms Begum leave to enter the UK.
The Director of Public Prosecutions, Max Hill QC, said in 2017 that it was right that those who had travelled to Syria out of naivety at a young age and who returned in a state of ‘utter disillusionment’ should be diverted away from the criminal courts.
After Begum and her friends travelled to Syria, the head of counter-terrorism at the time, Metropolitan Police assistant commissioner Mark Rowley said: ‘They have no reason to fear, if nothing else comes to light, that we will be treating them as terrorists.’ That allowed Tasnime Akunjee, the solicitor for the families of the three girls, to claim: ‘Effectively, this is immunity.’
No-one appears to have dealt with two key issues: beyond original supposed naivety, did their behaviour while actually in Isis territory show they were participating in terrorism? And have they shown a sincere rejection of that form of terrorism since leaving ISIS control?
What offences could Begum be charged with?
Ministers are introducing terror laws to target IS fighters who cannot be prosecuted for other crimes because of a lack of proof. The Counter-Terrorism and Border Security Bill would make it an offence punishable by up to ten years in jail for anyone to enter a ‘designated area’ abroad unless they can provide a ‘reasonable excuse’. But the proposed legislation could not be applied retrospectively to Begum. The sentence for being a member of IS, or supporting the group, is up to ten years in jail. Other offences that could be considered include disseminating terrorist materials, terrorist fundraising and terrorist training. Any involvement in killings could lead to a murder charge.
How easy would it be to bring a prosecution in Britain?
Even if Begum assisted in atrocities or committed other crimes such as encouraging others to go to Syria, it would be difficult to prove. Jihadis returning to their home countries have been prosecuted on the basis of fingerprints recovered by American troops from bomb parts on the battlefield, but it is unlikely that evidence would have been gathered on the activities of a 15-year-old jihadi bride.