Terrorism Trials & Investigations

A Comparative Look at Preventive Criminal Charges in the US and UK: The Latest Homegrown-but-Trained-Abroad Case

By Robert Chesney
Tuesday, September 27, 2011, 4:57 PM

This past Sunday, police in Birmingham, England, made a series of arrests in connection with a "homegrown-but-trained-abroad" terrorism plot.  Irfan Nasser and Irfan Khalid allegedly traveled to Pakistan to obtain training, made martyrdom videos, and planned to carry out suicide bombings.  Ashik Ali also allegedly intended to carry out a suicide bombing.  Other defendants were charged with assisting the plot, or with withholding information about the plot from authorities.  The full details are posted here in a press release from the West Midlands Police.

From a comparative law perspective, what is interesting is the comparison between how such fact patterns are charged in the UK and how they might be charged here.  In the US, we would surely be looking at charges of conspiracy under 18 USC 2332a (explosives plot) and 2332b (transnational plot), as well as charges of providing and conspiring to provide material support in violation of 18 USC 2339A (predicated on the 2332a and 2332b offenses).  For the UK, you end up in about the same place, but through a different path.  Nasser, Khalid, and Ali are charged with "engaging in conduct in preparation of terrorist acts" in violation of section 5(1) of the Terrorism Act 2006, which provides:

(1)A person commits an offence if, with the intention of—

     (a)committing acts of terrorism, or

     (b)assisting another to commit such acts,

he engages in any conduct in preparation for giving effect to his intention.

(2)It is irrelevant for the purposes of subsection (1) whether the intention and preparations relate to one or more particular acts of terrorism, acts of terrorism of a particular description or acts of terrorism generally.

(3)A person guilty of an offence under this section shall be liable, on conviction on indictment, to imprisonment for life.

Note that this gets you the "preventive" capacity of an American conspiracy charge (i.e., it permits prosecution based on formation of the requisite mental state plus a not-that-demanding requirement of some steps toward acting on the required intent), but does not require the involvement of more than one person as would be the case with conspiracy.  Obviously that's a distinction without a difference in this case, which involves multiple defendants.  But it would be meaningful in a case involving a single individual, where the conspiracy option would not be available in the American system.  Whereas section 5(1) looks to make that an equally easy case in the UK system, prosecutors in the US would have to come up with either an aggressive interpretation of "attempt" or perhaps a theory of material support involving the defendant's provision of himself as "personnel" in furtherance of his own intended future act.  They Hamid Hayat case comes to mind in that regard, but the bottom line is that the UK approach seems to much more directly encompass this situation, for better or worse. 

Also note the other charges at work in the case, which includes a prohibition on financing a terrorist plot (very much akin to a material support charge) and also a provision criminalizing the failure to come forward with information about a terrorist plot (which does not really have an American analogue):

CHARGE 5; INFORMATION ABOUT ACTS OF TERRORISM, contrary to Section 38B (1) (a) and (2) of the Terrorism Act 2000

BAHADER ALI between the 29th July 2011 and the 19th September 2011 had information which he knew or believed might be of material assistance in preventing the commission by another person of an act of terrorism and did not disclose the information as soon as reasonably practicable.

Very interesting to say the least.