FLC140, Reflections on the Case of Subhaan Younis, Sean Gabb, 29th September 2005

Free Life Commentary,
Issue Number 140
29th September 2005

Reflections on the Case of Subhaan Younis
by Sean Gabb

While having coffee with Dr Tame yesterday [28th September 2005], I did a brief telephone interview with BBC Radio Oxford. The issue I was called on to discuss was whether it was right for a certain Subhaan Younis to be sent to prison for sixty days for having shown someone a video clip on his mobile telephone of a beheading in Iraq.

My answer to the question was no. I agreed that to seek out and take pleasure in such images showed a singular depravity of mind. I also agreed that to show such images to someone who had not agreed in advance to look at them was at least in bad taste. But I disagreed with the man’s being sent to prison. By all means, I said, let him be named. Let others know the depravity of his mind, and let him be shunned by the respectable on account of that. But no one should be punished for merely looking at or even publishing things that others might find offensive.

Of course, there is the matter of procurement. If this man had commissioned the beheading so that he might look at pictures of it, it would be right to prosecute him as an accessory to murder. However, so long as no such connection could be shown, he should not be sent to prison.

Then there is the matter of showing the images to someone who had not consented to look at them. According to the newspaper reports, the person to whom they were shown was shocked and upset. Here, though, while there might be some question of an action for the tort of nervous shock, I fail to see anything that ought to be regarded as a criminal matter. Mr Younis should not be in prison. He should be released now he is there.

And that was the whole of my radio discussion. I spoke clearly and firmly, and no one asked me any hard questions. In any event, the whole item took up only about five minutes, and there was no room to develop a full argument or to answer full objections. All I managed in the time was to outline the distinction, on which libertarians mostly insist, between doing and looking. But there is more to be said—as I realised afterwards in a long dissection of the issues with Dr Tame. Indeed, the Younis case is of little importance compared with the larger issues into which its discussion leads.

What Criminal Act?

Let us begin with the question of whether Mr Younis had committed any act that should be regarded as criminal. There is an exception as regards acts against the whole community. But where common crimes are concerned, it is fair to insist that when no individual victim can be identified, there can be no crime. I have no idea what motivated Mr Younis to show that image. He might have been trying to illustrate the horrors of Moslem terrorism. Or he might have believed in the accurate presentation of reality—as opposed to the sanitised, or censored, imagery provided on British television. But his name is Asiatic, and he could be one of those citizens of convenience—that is, someone who values his British passport purely for the material comforts to which it entitles him, who does not share our national ways, and who knows enough about us only to hate us. If so—and I say at once I have no evidence to believe it really is—he would fall into that large class of persons whose presence among us is becoming a problem that needs at least to be honestly discussed.

However, this being raised, let us put it aside and concentrate on whether he can be regarded as a common criminal. Here, we need to identify a victim. It was not Mr Younis himself. His possible moral corruption is not so much effect of the video clip as cause of the faults that led him to seek it out in the first place. So how about the woman to whom he showed the image? Can she be called the victim of an assault?

I do not think so. Mr Younis showed her something that she found upsetting. But let us be reasonable. What he showed her was most likely a jerky, pixellated video clip, and it must have been displayed on a screen of no more than one inch by one and a half. Any person of reasonably firm mind should have been more upset by a good newspaper report. Even applying the civil burden of proof, in making out the tort of nervous shock, I do not think it reasonable for him to have anticipated so extreme a reaction. Unless the accounts I have read of the incident have left out something important, I fail to see how showing that video clip could have been taken as an assault—or even the breach of the peace for which he was punished.

Procurement and Agency

The publisher and viewer of the clip being excluded as victims, let us turn instead to the unfortunate subject of the clip. Can we say that Mr Younis had in any sense procured his beheading? As said, there is no doubt that the direct procurement of images that show illegal acts should in itself be a crime. If I have a man killed for the sake of having his death filmed, I ought rightly to be charged as an accessory to murder. But how about what may be called indirect procurement—that is to say, how about acts that fall short of commissioning a criminal act, but which still contribute by a possible chain of inference to the committing of similar acts in the future?

This is an argument that frequently arises when people are found guilty of collecting certain kinds of pornographic image. We are told that while they may not have commissioned the specific images found in their possession, they have provided through their act of purchasing an incentive for the creation of similar images in the future. Does that argument apply in this case?

I do not think so—and that is granting its validity as an argument. There is nothing in the newspaper reports to show that Mr Younis had paid to obtain his video clip. Nor is there any reasonable chance that the Iraqi resistance group had beheaded someone with a view to selling the video footage. Nevertheless, while there is no reason to assume any financial incentive, the footage was released in order to attract approval and support outside the resistance group.

Motivation

Does Mr Younis support the Iraqi resistance? Did he approve of the beheading? The newspaper reports I have seen give no answer to these questions, and I have no evidence for thinking greater ill of him than I do for simply possessing and showing the video clip. But let us for the sake of argument suppose that he does support the Iraqi resistance, and that his support was quickened by sight of the beheading. Does this change matters? Could it be argued that the intention of the beheaders to gain approval and his granting of public approval did create a sufficient nexus to justify an accusation of indirect procurement?

I do not think so. It may be wrong to support the various groups resisting the American and British occupation of Iraq, and to glorify their acts. But this must be regarded as fair comment on events of public importance. To magnify any such comment with video clips of an atrocity is irrelevant. I know that the British Government is trying to create a new offence that will cover expressions of support for irregular political violence. But this is political censorship. It is the modern equivalent of the seditious libel laws that were used in the 1790s to stifle the support of some English radicals for the French Revolution. If applied consistently, the proposed law—indeed, the breach of the peace law used to punish Mr Younis—could be used to punish my own view that the Iraqi resistance groups stand in a tradition that leads through the Guerillas of the Peninsula War and the French Resistance of living memory. To answer yes to the above question is to sanction as close a censorship of the media as we have known in this country since the expiry of the Licensing Act.

Should Possession ever be a Crime?

But while I think I have answered the specific question of whether Mr Younis should have been sent to prison for showing that video clip, I have done so in a way that avoids what Dr Tame and I take as the wider and much more interesting question—of whether any possession or publication should in themselves be treated as crimes. What happened yesterday to Mr Younis was an act of disguised censorship, and I can join with the media class in deploring this. But I am drawn to discuss it by the general principle that some are using to justify his punishment. Should possession or publication be treated as crimes in themselves?

I do not think so. As I said yesterday about Mr Younis, where no connection can be shown to its original creation, there should be no crime in publication. Or, where no aggression can be identified, no crime can be imputed. The argument that buying what is already in being encourages the creation of more is invalid, so far as it muddles the necessary distinction between identifiable and prospective victims.

There is also the argument of procedural honesty—that to make a crime of possession is to give the police even greater scope for corrupt and oppressive behaviour than they otherwise enjoy. To prove an offence of procurement or publication usually requires objective evidence that is difficult to fabricate. To prove an offence of possession requires the unsupported word of a police officer or some agent of provocation. I do not think, at this late stage in our national decline, I need to bother with arguing that the police are corrupt and oppressive. It is notorious that the police in this country have a long history of “stitching up” individuals by planting whatever items may currently be demonised. Anyone who believes they are uniformed civilians, paid to do the job that we might, if so inclined, do for ourselves of protecting life and property, has never read a newspaper.

National Sovereignty and Law

Furthermore I think it highly dangerous to go any further than we so far have in the granting of extraterritorial jurisdiction. We have gone too far already. Unless we are to consent to the growth of an unaccountable and increasingly tyrannical body of international criminal law, we should insist on principle that acts committed elsewhere in the world ought not to be the business of our own criminal courts. For the same reason we should insist that those accused of criminal acts in this country should not be extradited to face trial elsewhere in the world—and that therefore our Government should refuse to implement the European Arrest Warrant, and should denounce the treaty signed a few years back with the United States of America.

I suspect most of my readers will agree with these two last points. But there are problems with the refusal to countenance any extra-territorial jurisdiction. Does this mean that, if a man living in this country should directly procure the filming of a terrorist act in France, he should not be subject to prosecution in this country? Does it mean that Egyptian nationals living in this country should be able with impunity to procure the assassination of the Egyptian President in their own country?

With regard to the second question, I can argue that, as a matter of policy, we should not allow foreigners into this country who are likely to complicate our foreign relations. And any who are found plotting here should be expelled at once—regardless of what punishment they can expect in their own countries. But answering the first question is difficult. Before the law was changed in 1858, in response to the Orsini bomb plot, there was no crime of conspiring to break the laws of another country. Nor, until the Fugitive Offenders Act of later in the century, was there any means of sending suspects from this country to face trial in another country.

I sympathise with the old concept of an absolutely separate territorial jurisdiction. On the other hand, the concept was applied in a world where, having regard to the state of communications, France was more distant from England than China is today. Paris is now within a three hour railway journey from Waterloo Station, and the price of telephone calls to anywhere in the world is heading toward zero. Perhaps the concept is no longer applicable in its strict sense. Perhaps, then, there is a case for laws to punish the direct procurement of crimes in another country. This would cover publishers who commission terrorist pornography from anywhere in the world. It would also cover people—such as Mr Younis is almost certainly not—whose approval of terrorist acts abroad amounts to commissioning. As said, such laws might not cover Mr Younis. But they would cover those hyphenated Americans who have spent the past forty years contributing financially to the Fenian insurrection in Ulster.

But this takes me further from the case of Mr Younis than I intended to go. I will conclude by repeating that he should not have been sent to prison on the basis of the facts reported in the newspapers. Nor should he have been sent there on the basis of any argument I have seen made or can imagine being made. I do not know Mr Younis. I have no sympathy for him. But this is irrelevant to the question of his punishment. What is relevant is to recall the words of John Lilburne as he was led out to punishment: “What they do to me today, they may do to any man tomorrow.”

Mr Younis should be released.

© 2005 – 2017, seangabb.

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