13

The Switch

Freedom Fighter or Terrorist?

When I was born in October 1941 the Second World War was well under way, and my eldest brother Gerald was just sixteen, one year older than my other brother Ken. They both volunteered for the services as soon as they could, Gerald in the Second Battalion Scots Guards in July 1943 and Ken in the Fleet Air Arm: a baptism of fire for both, to live through the Blitz as teenagers in London and then to enter the conflict itself when so young. For Gerald it was the start of a traumatic life laden with anguish and adversity, which he faced with quiet fortitude and resignation.

Fascism, as embodied by Adolf Hitler, provided an obvious and identifiable enemy to be fought with Churchillian resolve, for it was a just war against a dictatorship of manic proportions, which practised eugenics, genocide and torture. Having crossed the Rhine with the Guards Armoured Division, Gerald was billeted with a German family. He was still a teenager, but despite the tangible hatred engendered by all things German, he experienced generosity and kindness that fuelled conflicting emotions. He learned to speak German, engaged in correspondence with German war veterans, and formed a strong attachment to a young German woman whose friendship he retained until he died, more than sixty years later. It was not just the Rhine he had crossed, but also the divide between ordinary people caught up in a tide of events not of their making, but orchestrated by political forces far beyond their control.

Gerald had barely returned from being part of a victorious army in Europe, adjusted to peacetime and acclimatised to the hopes and visions of a utopian Labour government, when he was suddenly drafted into a nightmare from which he never truly recovered: another war, this time in Malaya. He was still only twenty-three when in August 1948 he came down to Ventnor on the Isle of Wight, where I was on holiday with my parents, and sat on the beach with us, keeping his uniform on the whole time. He had come to say goodbye prior to his imminent embarkation on the troopship Empire Trooper on 6 September, and whereas he was usually laconic, cryptic and funny, that day on the beach he was quiet, withdrawn and overshadowed by a sense of foreboding. He knew, although I didn’t, that he was facing an entirely different war, to be fought in an entirely different way. The enemy had changed to one less readily identifiable and more insidious, but considered to be ideologically far more threatening: communism.

Great Britain had fought alongside the communists during the war. They were our allies, but once the war was drawing to a close, the Soviet Union – which had sacrificed millions of fighters for freedom – was cast in a different light, no doubt due in large measure to the Machiavellian oppression wrought by Stalin on the back of a violent revolution thirty years before. Hence the race for Berlin. The communist threat became the rationale for a great deal of Western foreign policy (besides the wars in Malaya, Korea and Vietnam) until the end of the Cold War and the collapse of the Berlin Wall on 9 November 1989.

Since then an equally global ‘ism’ as personified by Osama bin Laden – Islamic fundamentalism – has taken the place of the ones that preceded it, and once again the wars that are being fought are against an enemy that was at one time an ally. Both the USA and the UK supported Saddam Hussein against Iran, and the USA in particular supported the Taliban against the Russian invasion of Afghanistan: hence the expression ‘the Switch’. Much of the time of course this has little to do with democracy, let alone freedom, which are merely useful mantras for masking political and economic greed, currently epitomised by consumerism and the need for oil.

The Switch is also a useful mechanism for demonising opposition by employing the aphorism that ‘One man’s freedom fighter is another man’s terrorist’, and it attempts to minimise and marginalise the genuine and legitimate struggles of people for their civil rights and existence. Once this has happened, those who are being demonised run the risk of becoming more and more desperate until their cause finds support in movements that have a bigger political or religious objective, and such movements can manifest just as much megalomania and perpetrate just as many atrocities as the governments that have characterised them as terrorists. One feeds on the other, in a never-ending cycle. As Lord Acton wrote in 1904, ‘Power tends to corrupt, and absolute power corrupts absolutely’¹; and the losers, inevitably, are the weak, the vulnerable and the impoverished. That is why, in my view, the instruments of international law have such an important part to play in developing concepts of accountability, the rule of law, equitable dispute resolution, justice and peace. (See chapter 22.)

My brother’s tour of duty in Malaya lasted two years. For him it was hell on Earth, while for me it was the other end of the Earth. He sent a monthly aerogram bearing strange stamps, which I collected, and he told of deathly experiences on jungle patrol. This was guerrilla warfare, in which the enemy was rarely glimpsed and even more rarely encountered, and he lived at the end of and on the edge of his nerves, never knowing what to expect. Most of the time he was wet and hot in an unbearably humid environment, wading through swamp or hacking through undergrowth. If a bullet didn’t get him, then leeches, snakes or mosquitoes would, while malaria, dysentery and diarrhoea were commonplace. Sitting in the comfort of North Finchley, I thought that anyone who could endure and survive these gargantuan odds must be made of heroic stuff close to that of a Greek god.

The British campaign was successful on its own terms by moving and isolating large numbers of civilians, and at the same time winning their hearts and minds by the provision of food and accommodation. Nevertheless the origins of this crisis are instructive. Vested economic interests in the rubber and tin-mining industries, which were important to Britain’s own recovery, insisted on the term ‘State of Emergency’: otherwise their losses would not be covered by Lloyd’s insurance. In fact, of course, it was a full-scale war between the Malayan National Liberation Army (MNLA), the military arm of the Malayan Communist Party (MCP) and the British authorities.

From 1946 to 1948 there were a series of strikes and industrial disruption in Malaya, which culminated in increasing militancy and violence and, in 1948, in the murder of European plantation managers. The British Government, as it was to do over the years in other jurisdictions, imposed severe measures that curtailed civil rights. Political parties on the left, especially the MCP, were banned, and the police were given the power to arrest and detain without trial those who were members of such parties, or were suspected of being members or of assisting members. The MCP had considerable support among the Chinese population, who were deprived of voting and land rights and were extremely poor. Ironically, the MNLA was based on the Malayan People’s Anti-Japanese Army, which had fought against the Japanese during the war and was trained and equipped by the British. The Switch. If the British Government had in the first place recognised the legitimate grievances expressed by the working population – which was not terrorist by nature, but merely wanted some basic rights – my brother might not have had to suffer as he did. It was the use of force and deportation in order to protect British economic interests that led to a dramatic escalation in the unrest; and, unbelievably, the State of Emergency declared by the British colonial authorities in 1948 was not lifted until 1960.

Everyday and ubiquitous struggles of this kind have been a theme of my working life, encountered in the many cases where individuals have found themselves facing terrorist or allied charges in British courts.

In 1996 a group of Iraqi professionals – doctors, lawyers and their families – tried every way imaginable to escape the vicious regime of Saddam Hussein. My client Mustafa Shakir Abdul-Hussain and his wife had been tortured because they were Shiites opposed to Saddam’s regime, and death warrants had been issued against them both. They tried to bribe their way out; to fly out via Lebanon; to cross the border into the Sudan by car. Eventually they were successful and made it to the Sudan, but that country soon became regarded as a haven for terrorists and all flights to and from it were due to be suspended. They were desperate for a new start in Europe, and one night in August they were watching a film on television about a hijacking. Taking over an aircraft all looked fairly straightforward, so they decided this was a possible new option, and after a couple of attempts at boarding international flights to Germany without valid passports, they and two other families in a similar position were forced back towards Iraq on a domestic Sudan Airways flight to Jordan.

They arrived early in order to board first and occupy seats near the cockpit. By now they were recognisable as a group, but as it was a local flight, they hoped that security would not be so tight. Like the amateurs they were, the six men of the group stood in line with their families, including children, carrying a motley array of makeshift weapons such as scissors and balsa-wood model craft knives hidden amongst the kids’ toys. They were asked to stand back while a larger group of passengers was checked through security, and watched while these people were being searched – and, to their shock and horror, a series of large, lethal-looking knives were discovered. Dismayed, my Iraqis thought they had been usurped by another band of hijackers and, by now in complete disarray, waited in trepidation to see the fate of the people in front. But nothing happened. The group ahead of them was ushered through security – and turned out to be butchers destined for the annual Jordanian Butchers’ Convention.

Buoyed up with fresh determination, the Iraqis climbed on board, but by this time they had been allocated seats at the back of the plane, which was not a good position from which to enter the cockpit. Uncoordinated and leaderless, one of the group decided to act as soon as the plane was airborne and the stewardess came down the aisle offering tea. Armed with a squeezy, tomato-shaped ketchup dispenser (as found in Wimpy Bars) bound up with black tape to look like a grenade and filled with salt to give it weight, he leaped onto his seat and demanded that the stewardess open the door to the cockpit. Unfazed, she took no notice, and told him politely but firmly to sit down and have a cup of tea. He refused, and in the course of the hubbub dropped the ‘grenade’, spilling the salt all over the floor – at which point the stewardess imperiously told him to clear it up. Following this humiliation, further threats were made with plastic knives and other imitation grenades, until access was gained to the cockpit and the pilot.

For some reason the butchers’ knives had been placed for safe keeping in the cockpit, and these were distributed among some of the group. The Iraqis took control of the plane, which had to refuel in Cyprus before landing successfully in Britain at Stansted. There the men were detained, and as the 197 passengers disembarked, a number of them wanted to thank the hijackers for their safe arrival and treatment while on board.

The trial of the six men, which took place at the Old Bailey in 1997, was arduous and highly charged at every stage. The defence that I, together with Keir Starmer (now Director of Public Prosecutions), mounted for Mustafa (as for the others) against the charge of hijacking was not a denial that they’d done it, but that it had been carried out under duress, an unusual and untested defence known as ‘duress of circumstances or necessity’. The ordinary defence of duress has very strict conditions, in order to prevent those committing serious crime from escaping justice by claiming that they have been forced to participate by the threats of a co-conspirator: there has to be a clear and immediate nexus between the criminal act and the threat of substantial physical injury (such as a gun to the temple).

We argued that the law should be given a broader interpretation in cases of this kind. The gun may not be there pointing directly at you, but it may be only a matter of a few hours away. Saddam’s agents had tracked the men to the Sudan, and they knew that time was limited before their inevitable torture and death. As this was an integral part of the defence, the Saddam regime had to be exposed to the jury, and beside the spoken evidence of witnesses, the judge permitted the showing of a film of some of the atrocities perpetrated, particularly against the Marsh Arabs in the south and the Kurds in the north. These descriptions and accounts were heart­rending and extremely distressing to watch, and by way of analogy we compared the necessity of the hijack to some of the essential and life-threatening activities carried out by the civilian resistance in France during the German occupation and the Vichy regime.

At one stage in the proceedings the pilot of the hijacked plane was called to give evidence. As is usual, the court usher went outside and asked the witness, who was in full uniform, to follow her into the court. He was sworn in and then asked by the prosecution, through an interpreter, the routine opening questions:

‘Are you such-and-such a name?’

This was translated into Arabic for the witness, who replied in Arabic, which was then translated back into English for the court.

‘No’ was the one-word reply. The prosecutor looked puzzled, but carried on: perhaps the interpreter wasn’t up to much?

‘Do you live at such and such an address?’

This time the translation took a little longer.

‘No’ came back the answer. The prosecutor riffled through his papers: obviously something was odd, but he carried on regardless; maybe the man had moved.

‘Were you the pilot on flight number such-and-such between Khartoum and Amman in 1998?’

‘No’ was the swift response. By now the judge, jury, prosecutor and I were very bewildered.

‘Well, who are you?’

‘I was the pilot on flight number such-and-such between Abu Dhabi and Beirut in 1999.’

He was appearing as a witness in the court next door!²

Sometimes dealing with this kind of case is unbearable, and the stress and strain on everyone, clients and defence alike, is immense. People may have waited months or even years on remand, finally to reach the courtroom; they may have endured oppression and possibly torture back home and a kind of psychological torture here; then the trial day finally arrives. There are long days in court listening to interminably detailed evidence; cramped journeys back and forth to prison; witnesses stoking the case against you; the anticipation of a dynamic defence, and perhaps getting a pathetic one; anxious scrutiny of the impassive faces of the jury; waiting in dingy cells in the bowels of the court, relieved only by the daily visit of your counsel.

I liked my client Mustafa immensely. He was intelligent and cultured, but spoke limited English – most of our conferences were conducted via an interpreter, and no matter how professional and sympathetic the interpreter, this can prove very tiring and inhibiting. We decided to dispense with her services on several occasions and communicate in ‘pidgin’, and struck up a very cordial relationship. The trial had been demanding, and as it drew to a close it became extremely tense. One morning when I nipped down to the cells for my customary check, to see how Mustafa was and what questions he might have, I could sense that he was very on edge and nervous. I was in a wicked mood and, with a completely straight face, I told him I had been discussing the case overnight with the judge, who had said that the trial had been taking far too long and that he was anxious to get on to sentencing, as this was international terrorism and an example had to be set. I was so sorry, there was nothing I could do; he – Mustafa – was due for execution the following day. For a split second he looked aghast, then he burst into peals of laughter. This was a man whose own family had experienced summary execution, but despite that he got the joke. Difficult times can produce ridiculous situations.

At the close of the evidence and before final submissions to the jury, the judge, Mr Justice Wright (who later became the coroner in the Stockwell inquest: see Chapter 21), ruled that we had not established our duress defence in law, and therefore he had no alternative other than to withdraw it. He was intending to direct the jury that there was no defence; effectively the direction was tantamount to a finding of guilt. This put all the barristers, including me, into a predicament because if there was no defence we could not make final speeches to the jury, and other than remaining in court to keep an eye on the judge’s summing-up, there wasn’t much else to do. We discussed the various limited options with the defendants and decided unanimously that we should withdraw. Such a decision is exceptional and wasn’t entered upon lightly, but it did leave the way open for the defendants to address the jury directly, from the dock if they so wished. The judge permitted this, and their impassioned pleas had a tremendous impact both on the jury and on the judge.

The jury was immensely sympathetic, especially as it was clear that the Iraqis had no intention of blowing up a plane with their children on board; the jury sent a note to the judge saying they had difficulty in reaching a decision and that they felt ‘great compassion’ for the defendants. But although the jury kept refusing to convict them, and begged the judge to be lenient if they did, he insisted that they had to bring in a guilty verdict ‘on the facts’. Mr Justice Wright told the six defendants that although he had paid ‘close attention’ to the jurors’ plea for compassion, ‘I must pass sentences which reflect society’s condemnation of what you did’ – adding that in the last seven years there had been 225 hijacks, or attempted hijacks, worldwide. The Iraqis were jailed for terms ranging from four to nine years: not long, given the sentencing in comparable cases.

Afterwards an appeal was lodged against the judge’s ruling, and that ruling was overturned by the Court of Appeal in 1998.³ In doing so, Lord Justice Rose said that the law was imprecise, but the trial judge had interpreted it too strictly. ‘If Anne Frank had stolen a car to escape from Amsterdam and had been charged with theft, the tenets of English law would not have denied her the defence of duress of circumstances on the ground that she should have awaited the Gestapo’s knock at the door.’⁴

Mustafa and the five others were released. There was no retrial and eventually my client was granted asylum.

Just suppose that, once domiciled in the UK, Mustafa had decided to continue his struggle against Saddam Hussein by raising money for armed insurgents in Iraq, by attending meetings in London to get political support and by possessing literature along the same lines: he could have been arrested by the British police under anti­terrorist laws. The Switch.

When I first started to practise in 1967, Archbold’s Criminal Pleading, Evidence and Practice, the main textbook for practitioners, had no reference to terrorism. Now it’s stuffed full of it. Terrorism is defined as:

‘the use or threat of action designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and made for the purpose of advancing a political, religious or ideological cause’.

‘Action’ embraces ‘serious violence against a person, serious damage to property, endangering life and creating a serious risk to the health or safety of the public or serious interference with an electronic system’.⁵ This definition is extremely wide because it is capable of covering both individual and group action as well as actions undertaken by states: for example, the invasion of Iraq was plainly unlawful and was intended to accomplish regime change and not to recover weapons of mass destruction, which did not pose any form of immediate threat and did not even exist. In the light of this, internationally there is no consensus about the definition of terrorism. So when the International Criminal Court (ICC) was established in The Hague in 2000, war crimes and genocide could be tried (having already been defined), but not terrorism. The reason for this is obvious: too many governments realised they could end up in the dock. It is against this background that acts of terrorism, for whatever cause, have to be approached with caution. I have probably acted in more terrorist cases than anyone else at the Bar – starting in 1973 with my own car-bomb incident – but nevertheless have always been implacably opposed to the use of violence to promote a political objective (other than in circumstances of an immediate need for self-defence). That is why I think that Mahatma Gandhi’s employment of non-violent collective means to shock the authorities into dialogue is entirely appropriate. However, even he would be likely to be prosecuted in the UK today, particularly if he protested within a mile of the Houses of Parliament, like Brian Haw and his anti-Iraq war tented encampment.

This is not an idle debate, because similar observations were made about the African National Congress (ANC). Whereas Nelson Mandela is rightly lauded as an international hero and his statue has been placed in Parliament Square, there was a time when Margaret Thatcher regarded him as a terrorist and was unwilling to welcome him to the UK upon his release – unlike, of course, General Pinochet, whom she obviously thought had played such a prominent part in promoting justice and human rights in Chile that she fêted and welcomed him with open arms.

I had attended a fundraising auction at the Arts Theatre in London for the benefit of the ANC and its programme of reconstruction after Mandela’s release, and one of the photographs I bought was rare: it showed all the defendants who had stood trial with Mandela, accused of treason in 1956. Subsequently I was invited to a reception for him in London and decided to take this rather large photo, wrapped in brown paper, tucked under my arm. When I arrived, Mandela was predictably surrounded by the great and the good, and I began to have cold feet about interrupting him with this brown-paper package, when he had no idea who I was. Still, I really wanted to meet him, and so, mindful that he who hesitates is lost, I plunged straight in. Mandela was entirely gracious, unwrapped the photograph and took time there and then eloquently to recount the fates of the many people in it: so many had died, and so many had suffered imprisonment alongside him. He kindly signed the back of the photograph for me and dated it: 12 October, my birthday. It’s a closely guarded possession.

A number of years before this I had represented an Armenian charged with conspiracy to kidnap the Turkish Ambassador in London. He and the other defendant denied any such conspiracy, but admitted that they wished to expose the way the Turkish state had maltreated the Armenian community. As with the Iraqi hijack case, it was necessary to present as much evidence as possible about the history of this abuse. The high point was the genocide carried out between 1915 and 1923, when up to 1.5 million Armenians died in death camps and on death marches at the hands of the Turks. Not only has this always been denied by the Turkish Government, but the very existence of Armenian villages and place names within the borders of Turkey has been airbrushed out of history.

At this time I was still married to Melian and had five gorgeous but mightily energetic children, and weekends were a hectic round of different activities. Jonathan was a successful table-tennis player; Anna and Louise were both accomplished horse-riders and swimmers, and in addition Anna was an award-winning ice skater; Leo was wicked at tennis and wildly funny; and then there was young Kieran, who was four, independent and adventurous.

We lived in an unwieldy Victorian house in Crouch End, north London, and keeping tabs on the needs of a large, lively family while in the middle of this high-profile case involving the Armenians was demanding. I was aware that there were ongoing squabbles over sweets and crisps, so to try and exercise a modicum of control, these were hidden in a larder in the kitchen. One of my sons took a keen interest in these treats, and early one morning I heard footsteps padding past our bedroom and down the stairs. I guessed the motivation and silently followed him down, and as I approached the kitchen I could hear rustling from the cupboard. Always believing that patience is the better part of valour, I sat myself quietly down on a kitchen chair and waited. The rummaging continued, but eventually he emerged, his dungarees stuffed with packets of biscuits, crisps and whatever else he had been able to reach – and his surprise at seeing his father sitting opposite the cupboard door led him hurriedly to try and hide his cache of goodies. In his haste to pull up the long zip of his all-in-ones he did the inevitable and caught his penis in the zip. Ouch! The poor boy was in agony.

This being a new experience in my catalogue of childish mishaps, I decided to try and rescue the trapped body part with a pair of kitchen scissors, but only succeeded in cutting the dungarees to shreds and leaving the zip still firmly attached. So the next step had to be the local hospital, and I woke the family to get them started for the school day, before wrapping my dear son in a towel and putting him in the car. Chaos reigned in the house, and in the midst of it all I telephoned the Old Bailey. Always believing it is best to be straightforward, I asked a bemused telephonist to let the judge know about my son’s trapped penis and that I would be late, but please to continue the case without me, as my junior would stand in until I could be there later in the morning.

Arriving at Casualty, I jumped the inevitable queue and, when the nurse took a look, she exclaimed, ‘Oh no, not another one!’ It turned out that my son’s predicament was so common that they had a special pair of tailor’s scissors, which did the trick in a trice.

His penis intact, I drove him home, then high-tailed it to the Old Bailey – to be greeted by a barrage of waiting photographers taking shots in the direction of my trousers. Like a Chinese whisper, the message to the court had been distorted: the trial had been stopped, and word got out that Mansfield had his penis trapped in his zip. I went to see the judge in his room in order to apologise for the confusion, only to find that he too had thought it was my own predicament, for he opened the conversation by asking, sotto voce, if I was OK. The headline in the Sun next day read: ‘Fly Boy Stops Terror Trial!’

My client was acquitted and I subsequently attended his wonderful Armenian wedding, with son in fine fettle.

I had a personal reason for sympathising with that client’s cause, as I was only too well aware that it wasn’t just the Armenians who had suffered during the First World War at the hands of the Turks. My father’s left leg had been demolished by Turkish machine-gun bullets on 27 October 1917, while he was serving on horseback with the Third City of London Yeomanry Eighth Mounted Brigade in Palestine, as part of General Allenby’s campaign with the Egyptian Expeditionary Force across Sinai, which ended with his entry into Jerusalem on 11 December 1917. The amputation of my father’s leg was carried out at the 70th General Hospital in Abbasia, Cairo, when he was only twenty-one. He had joined up at the same time as his elder brother Kenneth, who remained in the Middle East with his family throughout what became known as the British Mandate of Palestine between 1919 and 1948. It was during this time that the British Army became targets for the Zionist paramilitary organisations Haganah, Irgun and the Stern Gang, whose activities were regarded as terrorist by the British authorities, although a number of their members went on to become the founding fathers of the Israeli state.

As a child I had been vaguely aware of all this, partly because my father was very sympathetic to the plight of the Arab population and was angry about the violence meted out by the Stern Gang, but also because our tiny, suburban semi-detached housed an intriguing and romantic watercolour by the renowned Scottish painter favoured by Queen Victoria, David Roberts. It hung above a neat black upright piano, at which I spent many frustrating hours trying to learn Strauss when I would have preferred Scott Joplin, and to bring matters to a head I stabbed middle C with a kitchen knife. No more lessons for me with Miss Cross – who undoubtedly was! Meanwhile I had tried to imagine where the place depicted in the painting could be: it was a desert scene with tiny figures alongside camels resting in the heat of the day, and with two huge statues in the middle distance. It wasn’t until Easter 2001, when I paid a visit to Cairo for a conference about the Lockerbie case, that I realised how significant David Roberts was, and what was the probable inspiration for the painting. It appears that the two huge statues are the Colossi of Memnon in the plain of Thebes, and the artist is highly revered in Egypt because he captured the original hues and pastel colours – palest lime-green, yellow, violet – revealed when the sand that had covered the columns of the many temples for centuries was removed.⁶

The history of the inter-war years is crucial to an understanding of the ongoing crisis in the Middle East and to one of the most emotionally intense trials I have undertaken. The British expedition in Egypt through to Palestine was motivated less by the need to defeat the Germans than by the desire to begin preparations for the post-war era – similar to the manoeuvring that took place at the end of the Second World War. In 1916 there was a secret agreement between the British and the French (the Sykes-Picot Pact), by which they proposed to carve up the Middle East into spheres of influence. There was a fear that the Turkish Caliph might order a military jihad, thus bringing into the war other Muslim nations on the side of the Central Powers. If this were to happen, the Suez Canal would become a critical transport artery. Essentially the League of Nations and proposals for partition were merely vehicles for dividing up the spoils of war and ensuring control over, and access to, various resources thought necessary for the maintenance of colonial influence. The British took responsibility for Palestine, and the French for Lebanon and Syria. If these territories had been ceded to them instead of being mandated, the level of war reparations being sought by the Allies would have been diminished. On the one hand, the British – through the intermediary T. E. Lawrence (of Arabia) – promised the local Arab population independence for a united country that covered most of the Arab Middle East, in exchange for support of the British during the war. On the other hand, in 1917 the Balfour Declaration promised to create a Jewish national home in Palestine. Land and territory were being used as pawns in a political power game, and not for the first time. The empires of the Greeks, the Romans, the Crusaders and finally the Ottomans had all done the same. Small wonder that the people who actually lived there resorted in the end to force to protect their very existence. It is an irony beyond measure that the Israeli state, born out of discrimination and extermination against Jews, should now be practising those very same policies against the Palestinians.

In 1994 Jawad Botmeh, a thirty-one-year-old Palestinian, and Samar Alami, a thirty-three-year-old Lebanese banker’s daughter, were accused with others of planting car bombs outside the Israeli Embassy in Kensington Gardens, London, and at the offices of a Jewish philanthropic institute in north London: no one was killed, but there were many injured. Strangely, the Israeli Embassy security cameras ran out of film at the critical time of the attack, and no senior figure was present in the embassy when the bomb went off.

Botmeh and Alami had been students in London for some years, active in Palestinian student politics, and they both admitted their support for the Palestinian cause against illegal Israeli occupation of Palestinian land. In 1996 Ben Emmerson and I were instructed by Gareth Peirce and we worked hard on their defence. They absolutely denied being involved in the bombings in London, but did admit dabbling amateurishly in assembling explosive materials for the defence of Palestinian civilians in Palestine, devices which they believed could be flown by civilians in model aircraft over the heads of Israeli aggressors.

Knowing that I like to get a better understanding of what life on the ground is like, Jawad suggested that Gareth and I should pay a weekend visit to Palestine. It was supposed to be clandestine so as not to jeopardise the safety of Botmeh’s family, so Yvette came along too as ‘cover’: this was to look like just another holiday weekend. We stayed in Jerusalem at a large anonymous hotel, and various Palestinian relatives of Botmeh took considerable risks to come and meet us, one even travelling in the boot of a car. Late the same night we were escorted to the home of an Israeli woman lawyer who had been courageously defending Palestinians on the West Bank, and met intellectuals and campaigners who had seen the situation deteriorate over the years. They were pretty despondent but, amazingly, still committed to fighting for change. (How they must be feeling now, following the utter and indiscriminate destruction in Gaza, of which I became acutely aware on a delegation in March 2009, is not difficult to imagine. There could be little doubt that this was sheer retribution on a civilian population that had dared to elect Hamas. It may be time for all concerned to reflect on Milton’s epic poem ‘Samson Agonistes’ with its memorable line ‘Eyeless in Gaza, at the mill with slaves’.)

We took a very early-morning trip to Botmeh’s home, on the way seeing large groups of Palestinian men waiting desperately to be chosen by a handful of Israeli employers for the chance of a day’s work across the divide, while Israeli helicopters circled overhead. Perversely, it reminded me of those powerful photographs by Bert Hardy of cloth-capped English workers in the 1930s Depression in Jarrow, also waiting for a handout, in another era on the other side of the world.

Botmeh’s family was so welcoming and generous it was overwhelming. Breakfast had been lovingly prepared by Jawad’s mother – a large, comforting woman whose soft smile and generous spirit no doubt belied the anxiety she was feeling – and we sat down to a feast, aware that it must have left them hungry for a week. The meal was peppered with disquieting stories of the lengths they had to go to in order to maintain some kind of normality and the hardships they had to endure: a ten-minute walk transformed into a three-hour journey for Botmeh’s sister to reach school every day; the Roman water supply, which had irrigated their land for literally thousands of years, now diverted to Israeli land; the destruction of the olive groves that were their main source of income; the hut by the railway line used by Israeli police to interrogate and sometimes torture young Palestinians – which was especially poignant for me, as I believe my uncle helped build that very railway line.

We left amid embraces, small gifts of sweet delicacies and hopes for success for the trial; this kind of responsibility ‘goes with the territory’, as they say, but it is never easy to bear, and in this case I felt a heavy burden. How was I to secure the freedom of these young people when prejudice is so weighted against them?

Being escorted everywhere (for our security and enlightenment) by Palestinians who had clearly kept their humanity, despite the hardships they faced, was a salutary lesson. Yvette and I were guided round a school in a rambling, ramshackle refugee camp, packed with eager faces that I was asked to address. Holding the microphone, looking out over hundreds of uniformed girls and boys, as in any school, I asked myself: what do I say to children with such a bleak future? I spoke of strength, dignity, human rights. The children were positive and open, like all children everywhere, but were my words merely hollow rhetoric?

The refugee camp is one of many that were a legacy of 1948, when thousands of Palestinians were dispossessed, and some refugees have remained there ever since in appalling conditions, while the remainder have been exiled abroad without the right of return.

The nearby hospital was clean and modern and appeared well equipped, but it was stretched to capacity, with young men and civilians suffering horrendous injuries inflicted by Israeli troops. A group of them, some almost ready for release, sat in chairs around an airy but clinical room, many with head bandages or the obvious loss of limbs. The strange thing was the atmosphere of eerie calm. Was it our presence that silenced them, or a kind of resignation? Maybe they resented our visit. The doctors said these young men would probably either take up arms or be dead within months; a very few, with help, might escape to a quieter environment; others might end up in jail, like my clients back in London. The director of the hospital, a warm and obviously dedicated soul, was desperate for us to communicate their plight to the wider world, but I suspect he knew, as I did, that it is hard to get people to listen when it comes to Palestine. We managed to call the director as a witness in the trial, despite dogged obstruction by the Israeli authorities.

Leaving the West Bank to cross back into Israel was akin to passing through Checkpoint Charlie in East Berlin. Yvette and I had to get out of the car, say goodbye to our friendly Palestinian guide and, alone and very tense, walk the couple of hundred yards across ‘no-man’s-land’ scrutinised by Israeli armed guards. It felt a very long way across the dusty ground in a kind of heightened reality, until the same barren land became Israel.

Before our departure I had an appointment with a Professor Zitrin, a world expert on explosives. A very unusual substance, TATP (or Triacetone Triperoxide, one of the most sensitive explosives known, being extremely reactive to impact, temperature change and friction), had been used in the London bombs, and he knew a lot about its properties. When we arrived for the meeting we walked straight past him, because I hadn’t realised that he was also a senior Israeli police officer and was therefore dressed in uniform. We had a very pleasant lunch together, but he was circumspect as well as friendly, and it was clear that he knew exactly why we were there and was aware of our movements. Realising that the time for our return flight was fast approaching, he offered a police car to take us to the airport – a kind but highly embarrassing gesture, and Gareth sat grim-faced in the back of the car. As we approached the airport, Zitrin asked me to return one day to give a lecture at Haifa University, and casually let slip that I must answer truthfully all questions by security at the airport. All three of us were totally unprepared for this eventuality. There were long queues. We were separated and asked a series of penetrating questions. In my case, they knew right down to the breakfast menu that day what I had been up to. I also had in my bag the incriminating special Palestinian delicacies from Botmeh’s mother. Gareth, in true solicitor mode, was inscrutable. Yvette successfully deflected their interest by admiring the female Israeli soldier’s hairstyle (so close-shaven she was almost bald), while I gave a long and detailed account of lunch with one of their police chiefs. We only just made the flight.

The trial lasted weeks and the judge allowed much disturbing evidence about the state of Palestinian life, but the jury found both Botmeh and Alami guilty, and they were sent down for twenty years. We appealed against the conviction, but leave wasn’t granted until 2000.

In 1997 ex-MI5 agent David Shayler had revealed that shortly after the bombing he became aware that there had been a prior warning, by an organisation not linked to the accused, of a terrorist attack on the Israeli Embassy. Ministers, led by Home Secretary Jack Straw, accused Shayler of being a traitor and ridiculed his assertion that any such warning had been received by the security services.

At the appeal, I accused the Crown Prosecution Service and the Home Office of wrongly throwing a blanket of secrecy over intelligence-agency information, which we believed could clear the pair. I argued that this suppression of evidence rendered their trial unfair and their convictions unsafe. What is more, non-disclosure of relevant information was a breach of Article Six of the Human Rights Convention.

It eventually emerged in court that Shayler was telling the truth. After months of prevarication, the security services finally admitted that there was such a warning about a terrorist attack and that it had nothing whatever to do with Samar Alami or Jawad Botmeh.

As Paul Foot wrote in the Guardian on 31 October 2000:

Why hasn’t anyone heard about this before? The answer is simple. The security services and the Metropolitan Police Special Branch were struck down with a terrible attack of HE – Human Error – an attack that rendered them quite incapable of carrying out their most elementary duties in the course of criminal justice.

The terrorist-organisation warning was ‘disseminated’ by a document within the security services, but ‘for reasons of human error’ it was not placed on the files shown to the prosecution counsel in the Botmeh and Alami case. A copy of the document about the warning was passed by MI5 to MI6, but this didn’t get to the judge in the case during the disclosure hearing; instead it was filed by an MI6 desk officer. They said it was an oversight. The document was also passed to the Metropolitan Police Special Branch, whose officers were hunting the bombers. It was ‘placed in a file germane to the main thread of the information received but was not placed in the file connected to the Israeli embassy or one which would have fallen within the Crown disclosure’. More human error?

From this grotesque catalogue there were only two possible conclusions. The first was that both sections of the security services are so hopelessly disorganised that they cannot follow elementary rules of disclosure, and that even in cases involving terrorism and bombing they are incapable of making good use of any information they receive. Or second, that MI5, MI6 and Special Branch conspired not to disclose information that might damage the prosecution of Samar and Jawad.

The appeal was adjourned while we investigated yet more evidence that the police knew of another suspect, but had kept quiet about him. On 1 November 2001 I remember Yvette and Jawad’s mother sitting in the corridor outside the courtroom waiting for the result: we were desolate when the appeal was finally rejected. Jawad’s mother graciously sent me a beautiful Palestinian glass bowl, which I cherish.

While in prison Jawad had taken up painting, and in 2003 the Kufa Gallery in Bayswater, west London, staged an exhibition of his work. They are powerful paintings. One shows a settlers’ road cutting through the mountain behind Battir village – a village that in 1949 the painter’s grandfather negotiated with Israelis to keep on the Palestinian side of the ‘green line’, the line that has since turned into a vast, illegal concrete wall, which snakes through Palestinian land on the outskirts of Bethlehem. Another large ‘canvas’ was actually painted on a prison sheet, a violent collage of headlines and imagery from attacks on Palestine and its people, with splatters of ‘blood’ suffusing the whole image. It hangs in my room in chambers. Jawad also makes wonderful pots. We have one in our living room, a constant reminder.

Jawad was finally released on parole in August 2008, and shortly afterwards Yvette and I had the immense pleasure of attending his and Eliza’s wedding, where we had a chance to meet his family again, this time under happier circumstances. I have recently learned that their first child is due very soon. At last a happy ending?

In the late 1980s I undertook another political trial, in which a group of Sikhs were charged with a plot to assassinate Rajiv Gandhi in London because of their treatment at the hands of the Indian state. The trial was in Birmingham, and Yvette came with me as she was filming The Birmingham Wives (see Chapter 17) for the BBC’s Everyman programme. We were asleep in a hotel in the centre of the city when we were rudely awakened by a fire alarm. Looking out of the window, I saw flames leaping out of a shop window opposite, too close for comfort. Without stopping for anything, I rushed out half-naked, but halfway down the stairs I remembered something very important. Yvette was still in the room, dazed but relieved I had come back for her – but as I grabbed my briefcase stuffed with court papers, she truly discovered my priorities, and has never quite forgiven me. As we stood in the dark outside the evacuated hotel we learned that the seat of the fire was in a stamp shop: it was a case of arson. Apparently a vicious philatelist war was being waged in Birmingham at the time.

Now there is the newly designated ‘war on terror’, and cases involving Islamic fundamentalism bring the arguments about ‘terrorists’ or ‘freedom fighters’ into the sharpest relief. They do so because the defendants are largely ‘home-grown martyrs’, bombing their adopted homeland in retribution for the unending civilian casualties being inflicted in distant Muslim lands in the Middle and Far East. Over the last few years I’ve been briefed in a string of these trials. The defendants cannot be dismissed as mindless self-seekers: they are without exception intelligent, well educated and articulate. Their discussions recorded by covert police surveillance, and the chilling suicide videos recovered in their possession, need to be scrutinised carefully and then directly addressed.

The essence of their claim is that the civilian population in the aggressor nations bears a share of the responsibility for what has been happening to their counterparts in Iraq, Afghanistan, Palestine, the Balkans, Chechnya and Kashmir. While there may be a grain of truth in this, it cannot possibly be a justification for the random reciprocal killing of non-combatants on buses, trains or in skyscrapers, any more than the carpet, blitz and atomic bombing in the Second World War or the so-called ‘collateral damage’ in the Balkans, and most significantly the whole of the unlawful invasion of Iraq and its aftermath. None of this is a defence of freedom by anyone’s definition. ‘An eye for an eye and we will all end up blind.’⁷

Tahira Tabassum was the wife of Omar Sharif, the first British-born suicide bomber in Israel. In April 2003 Sharif and fellow Briton Asif Hanif, from London, walked into a Tel Aviv bar with explosives strapped to their bodies. The explosion from Hanif’s bomb killed three people and injured sixty-five. Sharif tried to detonate his device, but it failed to go off. He was found dead a fortnight later in the sea off Israel.

Tahira had met Sharif while at King’s College London, in 1996, and by the time of his death was twenty-eight years old. She was charged with withholding information by failing to tell the authorities that her husband was planning a suicide bombing. The key evidence against Tahira was Omar’s email eight days before the attack, in which he wrote: ‘We did not spend a long time together in this world but I hope through Allah’s mercy and your patience we can spend eternity together.’⁸ When she read this she was shocked, not because she believed he meant to become a suicide bomber, but because she thought he was going to leave her and stay in Syria on his own, abandoning her with three small children.

In fact, she learned of the attack from a television report, and heard of her husband’s death from television too – and far from being treated as a grieving widow, she became ‘an enemy of the state’. Tahira was removed from her small children, aged six and five, and from the two-month-old baby whom she had been breastfeeding when arrested, and was locked up for twenty-two hours a day, without the support of family and friends, while being held in Belmarsh jail in south-east London. She was devastated: she loved her husband and didn’t understand how this middle-class, public-school-educated man had become a murderer. She was very depressed when I met her, but resolute in insisting that she never knew what was going to happen. Soon after, I managed to get her released on strict bail conditions.

At the trial in April 2004 we produced evidence that Tahira was completely unaware of what her husband was planning, and the jury heard how she had every intention of joining him in Syria. She had filled out visa applications for their children on 8 April, two days before Omar flew to Damascus, and on 15 April had gone to a gynaecologist to have a contraceptive device fitted.

Tahira was a devout Muslim and told the jury that she believed Islam forbade suicide. During the trial we canvassed a number of issues concerning the right in England to debate the status and role of various tenets of the Islamic faith. What was of particular concern was whether these codes of belief condone the use of bombing (particularly suicide bombing) in furtherance of that faith and the belief in the Caliphate (an international Islamic super-state).

Fortunately the jury believed in Tahira’s innocence and she was acquitted.

In contrast to Tahira, Saajid Badat never denied his complicity in terrorist offences, and at his trial pleaded guilty. He was a twenty-five-year-old British man accused of being allied to Richard Reid, the British shoe bomber arrested in the USA in December 2001. Saajid had withdrawn from the conspiracy to blow up a US-bound aircraft, but accepted that he had been part of it at one time. They had apparently been plotting the attacks since 1999, but Saajid was uneasy about the plan.

Reid was caught trying unsuccessfully to light a fuse in his shoes connected to plastic explosives, while on a flight from Paris to Miami on 22 December 2001. He was overcome by passengers and the crew, who gave him sedatives, and in January 2003 was jailed for life by a US court.

An unactivated device similar to Reid’s had been discovered in Saajid’s home in Gloucester. He had booked a ticket to fly from Manchester to Amsterdam before boarding an onward flight to the USA, but changed his mind and returned to the UK on 10 December 2001, with the device still in his possession. Clearly in turmoil, four days after his return Saajid had sent an email to his ‘handlers’, indicating that he might withdraw.

I gave a detailed mitigation on Saajid’s behalf about his politicisation. He was an intelligent, grammar-school-educated boy who left home at eighteen as a result of tensions with his father. Working in London as a kitchen porter and security guard, he was moved by accounts of the suffering and victimisation of Muslims in the Balkans, Chechnya and Kashmir, and particularly by the ethnic cleansing in the former Yugoslavia. In 1998 he went to Sarajevo, the capital of Bosnia, where thousands of Muslims had been killed. I argued that this wasn’t an academic anger, but that ‘he saw for himself, heard for himself, what had happened to Muslim families’. In January 1999 the nineteen-year-old Saajid travelled to Afghanistan and attended camps for military training, as he wanted to help ‘defend’ Muslim communities against attack: I compared him with those who had gone to fight Fascism in the Spanish civil war in the 1930s, and whose burning sense of solidarity was captured so compellingly in Ken Loach’s film Land and Freedom. He left to travel around Europe, and met Reid in Amsterdam. Saajid returned to Afghanistan following the 11 September 2001 attacks and was recruited by the Islamic organisation Abu Hafs for the plot.

I felt it was important for the court to understand the pressures some of these young people experience: how Saajid faced ‘moral blackmail’ to carry out the bombing, and how he was going through a turbulent time in Afghanistan. In a letter to his family he wrote: ‘I have a sincere desire to sell my soul to Allah in return for paradise.’ Saajid Badat had clearly crossed the line between defending the integrity of indigenous communities and inflicting aggressive injury and death upon innocent civilians.

By December 2001 Saajid had returned to Britain and showed clear signs of renouncing violence. He told his handler in an email dated 14 December, which was recovered by police, that he was ill: ‘I will keep you informed, but you will have to tell Van Damme [Reid’s cover name] he could be on his own.’

In 2007 I told the court in mitigation that Saajid had resolved to return to a normal life: he had resumed his studies at an Islamic college in Blackburn and had abandoned terrorism. Saajid’s faith, which according to most Islamic scholars condemns violence, had led him to pull out of the mass-murder plot, and I contended that, ‘It was faith that in one sense took him to the very brink of disaster, and at the same time it was the same faith that pulled him back.’

The judge, Mr Justice Fulford, told Saajid that he would have faced a fifty-year sentence, but gave him credit for pulling out of the plot, for pleading guilty at the first reasonable opportunity and for renouncing terrorism. He was sentenced to thirteen years in prison, where he remains.