Abstract
Few would deny that murder, bodily harm, and the destruction of property are properly the subject of criminal law. Offences bringing such behaviour within the ambit of criminal law are core features of every criminal code across Europe. It would appear rational then that such offences when perpetrated or planned on a large scale – usually central to any definition of what terrorist offences aim to punish for1 – should be subject to the strong arm of the law on an equally massive scale. Within the continental European context, it is impossible to imagine anyone denying the appropriateness of dealing with terrorism via the criminal law. Although there is rightfully discussion surrounding the definition of terrorism2 and (where related offences are formulated too widely) controversy whether all forms of behaviour covered by terrorist-related offences are appropriately included (being that they are thus included in this emotive area of the law which aims to punish the most heinous of crimes), prima facia it seems absurd for anyone to seriously deny that acts of terrorism must primarily concern justice systems as a subject of criminal law. Indeed, in the vast majority of cases, one might question the need for any additional “special” criminalising law for terrorism; only rarely does some form of behaviour associated with it not fall within the traditional ambit of criminal law.3
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Notes
- 1.
Although the UN definition (in Security Council Resolution 1566) relates to death and serious injury only, Part 1(2)b of the UK TA 2000 refers also to destruction of property – see, e.g., Golder and Williams (2004).
- 2.
For discussion, see Rabbat, this volume.
- 3.
And indeed some commentators assert that it may even be easier to prosecute for the underlying crimes rather than seeking the label terrorist, see Beckman (2007) p. 11.
- 4.
- 5.
Lord Lloyd of Berwick (1996).
- 6.
Home Office and Northern Ireland Office (1998), paragraph 7.16. This proposal was made at a time in which there was perhaps a chance of the emergency law approach – deemed necessary to deal with the Northern Ireland conflict – could have been replaced by a non-emergency scheme; centrally the TA 2000 brought extended police detention following arrest under judicial control (schedule 8, part 3) turning the emergency measure requiring derogation from the Convention [see Brannigan and McBride v. United Kingdom, ECtHR, Series A, No. 258-B (19993)] into a “normal” measure – a possibility whose chances of fruition ended on 11 September 2001 – see Warbrick (2004), p. 363, 364, and 392. See also Warbrick’s discussion of the areas providing inspiration for another; if a measure has worked in the anti-terrorist context, it will be adopted elsewhere, p. 390.
- 7.
Gearty (2007), p. 43 and 47.
- 8.
Themselves the subject of great controversy in some Continental systems.
- 9.
See Duff.
- 10.
- 11.
- 12.
2005.
- 13.
Rule 1.1.g Criminal Procedure Rules 2005 – see Ministry of Justice (2008).
- 14.
1 lew CC 261.
- 15.
See, e.g., Lord Hoffmann in A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) [2004] UKHL 56 and Feldman (2006).
- 16.
Lord Hoffmann in A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) [2004] UKHL 56.
- 17.
At paragraph 97.
- 18.
See the PTA NI temporary measures anchored into permanent law by the TA 2000, for reflection further afield, see Luban (248–249); where taken to far, such an approach can be seen to undermine the legitimacy of a state, see Chadwick (1997), p. 341. How quickly such powers are then used in different contexts can be seen in the case of R (Gillan) v. Metropolitan Police Commissioner [2004] E.W.C.A. Civ 1067, summarised by Gearty (2005), p. 30.The scope for misuse has also already been displayed – see Green (2008). Zedner (2005), p. 530 argues that it s vital this not be allowed to happen.
- 19.
in departure from a previously pre – HRA – more deferent stance – Fenwick p. 1336, which saw courts accepting that it is fundamentally for the Government to decide whether national security is threatened – see Shafir v Rehman CA – 24 May 2000 and CCSU v Minister for the Civil Service [1985] AC 374.
- 20.
- 21.
[2004] UKHL 43; [2005] 1 AC 264.
- 22.
s. 3 of the 2000 TA.
- 23.
See the Court of Appeal decision in R v Keogh [2007] All ER (D) 105 (Mar); [2007] EWCA Crim 528, 7 March 2007.
- 24.
Fenwick 1337.
- 25.
In accordance with article 19(1)(a) HRA, Fenwick 1337.
- 26.
Also documented in this volume, see Spencer.
- 27.
Fenwick 1466–1467 (1047–1052).
- 28.
In accordance with part 2 of the TA.
- 29.
See also Smith, this volume.
- 30.
See also the court discussion of the role played by Special Advocates and means by which their efficacy can be improved above all by ensuring some kind of exchange between them and the defendant they represent – e.g., Secretary of State for the Home Department v. MB [2007] UKHL 46, paras. 35, 51–54, 62–68, 81–85.
- 31.
See Spencer, this volume.
- 32.
See infra.
- 33.
48 h and then a further 5 days upon extension by the Secretary of State - section 7 (2) of the Prevention of Terrorism (Temporary Measures) Act (PTA) 1974.
- 34.
The first detainee was Paul Hill, “pressured” into “confessing” his participation in a pub bombing in Guilford. The Guildford four case remains an extreme example of a miscarriage of justice in the British system – see Davenport and Baauw (1995) p. 252.
- 35.
See, e.g., Morris and Russell (2005).
- 36.
Russell (2008).
- 37.
Estimated as very high: the current threat level of the UK is severe, the second highest possible. MI5 has identified 2,000 individuals who pose a threat to the country because of their support for terrorism and estimate that as many as another 2,0002008a may not be known (PA ).
- 38.
See sections 120 and 121.
- 39.
Fenwick, p. 1425.
- 40.
A and others para. 28 et seq.
- 41.
Para 68.
- 42.
A and others.
- 43.
For detail, see Forster.
- 44.
See Sec. of State for the Home Dept. v JJ, KK, GG, HH, NN, LL [2006] EWHC 1623 (Admin) (QB); 2008?
- 45.
s 8(2) PTA.
- 46.
Section 8(1) PTA as defined by section 1(9) PTA.
- 47.
s.1(3)a PTA any measure which Secretary of State or Court deems necessary to prevent involvement by the person in terrorism related offences as defined by section 1(9) PTA.
- 48.
See section 3 and schedule of the 2005 Act which provides for special court rules for control order proceedings.
- 49.
See the House of Lords judgment in MB, op cit, paras. 16–24, 48–50 and 90.
- 50.
Sanders and Young (2007) 67 et seq and (2003) 233–237; for the effect on Muslim communities, see Choudhury and Milmo (2008a); for more personal accounts, Oborne (2008); for reflection on this by British authorities, Hewitt (2008), pp. 107–118; for the disproportionate targeting of ethnic minorities, see the Independent (2005).
- 51.
Although not as unusual as one might expect, see Sanders and Young (2007) p. 76 et seq. for an overview of stop and search powers without the reasonable suspicion requirement and an evaluation thereof. The courts have emphasised the limits applying to such powers (the need for authorisation of their use by a high ranking police officer within a restricted geographical area) – see, e.g., R (on the application of Gillan) v Commissioner of the Police for the Metropolis [2006] UKHL 12, paras. 31 et seq.
- 52.
Para. 81 of the House of Lords judgment.
- 53.
Note also calls by the Government’s independent reviewer of anti-terrorist legislation that use of such stop and search powers must be seriously reduced – see Lord Carlile of Berriew (2005) para. 106.
- 54.
See, e.g., para. 50 of the House of Lords judgement.
- 55.
See Ireland v. the UK, judgement of the 18th of January 1978 (1979–1980) 2 EHRR 25.
- 56.
A policy developed of the existing law by the Metropolitan Police based upon section 3 of the Criminal Justice Act in that it provides for the use of proportionate and necessary reasonable force and developed in regular consultation with and approved by the appropriate official bodies – see Gregory (2007a).
- 57.
- 58.
Section 38B (1)(a)&(b).
- 59.
See also Fenwick (2007) p. 1412.
- 60.
Interestingly section 38B is similar to the provision formerly found in section 18 of the 1989 PT (temporary provisions) Act which was replaced by a permanent anti-terror regime in 2001 by the TA. That a provision of this kind was not considered appropriate in the permanent setting and then only reintroduced in 2001 in a perceived emergency situation – though no longer as a temporary measure – is telling.
- 61.
Darbyshire (2008) 66 et seq.
- 62.
But compare this to statements made by the European Court of Human Rights in Heaney and McGuiness v Ireland (2001) 33 EHRR 12 – see Clark (2004) 25. The impression is certainly that such offences were created in order to be able to proceed against individuals the authorities wished to place in preventive detention because they are regarded as a risk although there is insufficient evidence to tie them to any classic criminal charge – see Walker (2004); potentially they, however, apply to a large group of people and the fact that they are strongly under-used (Fenwick (2007) 1333) only confirms such interpretation of their purpose.
- 63.
See, e.g., Fenwick 1331.
- 64.
In relation to anti-terrorist activity, intelligence is identified as “the secret of winning the battle against terrorism in an open democratic society” – Wilkinson (2006), p. 62; the failure to use intelligence has been identified as the missed opportunity to prevent the attacks of 11 September 2001, see Fijnaut et al (2004), pp. 1–6.
- 65.
For an assessment of the very specific, strongly secret service driven, anti-terrorist intelligence situation, see Gregory (2007).
- 66.
- 67.
- 68.
See para. 9 of the House of Lords judgment in Gillan, op cit and Sanders and Young (2007), p. 76 et seq.
- 69.
See, e.g., Verkaik (2003).
- 70.
See network of agencies in which the ARA worked – ARA.
- 71.
Fenwick (2007) p. 1371.
- 72.
Fenwick (2007) p. 1332.
- 73.
See Gearty (2006) p. 126, 137, and 139.
- 74.
Home Office (d).
- 75.
See the House of Lords judgement in MB accepting that control order proceedings do not expose the affected person to a risk of punishment - paras. 16–24, 48–50, and 90.
- 76.
Haymann (2005).
- 77.
See the press, e.g., O’Neill (2008) and Walker (2007) but also (the human rights NGO) Liberty’s “charge or release” campaign (http://www.liberty-human-rights.org.uk/issues/2-terrorism/index.shtml). See also the High Court judgment of the 16 February 2007 in Secretary of State v E.
- 78.
See Liberty (2007); Warbrick has, for example, commented that detention without trial was necessary because the Government could not seek a conviction because of not wishing to reveal sources in intelligence gathering operations or because evidence was hearsay displaying the severe consequences the current situation may be having – see Warbrick (2004) p. 395.
- 79.
See Sec. of State for the Home Dept. v JJ, KK, GG, HH, NN, LL [2007] UKHL 45; [2006] EWHC 1623 (Admin) (QB).
- 80.
See paragraph 14 of Sec. of State for the Home Dept. v E [2007] UKHL 47. Provision is made by section 8 of the 2005 TA to ensure the Secretary of State consults a chief officer of the relevant police force to check whether there is sufficient evidence for a prosecution and for a requirement that that chief officer is informed of any control order made and then responsible for reviewing the potential for prosecution as long as the control order is in force. Tellingly, there is no requirement that a prosecution is brought and the courts concede that this may be a difficult decision for the Secretary of State to make because she cannot control prosecutions - Baroness Hale of Richmond in paragraph 26 of the above judgement. See also McNulty (2008a). Gearty (2005a), pp. 527–529, furthermore points to the very broad number of offences available upon which to base a prosecution, making this all the more astonishing. Arguments have been heard from the Government that this is often not possible have come under attack with the Attorney General, the Director of Public Prosecution, and the former Head of MI5 as well as a number of NGOs arguing that intercept evidence should be made admissible in criminal trials to counter this argument [see Liberty (2007)].
- 81.
Among other counterterrorism experts, Lord Carlile – the Government’s independent reviewer of terrorism legislation, has called for more prosecution of terrorism suspects rather than the overuse of control orders – see Walker (2007).
- 82.
Interestingly Gearty (2005), p. 32, identified a trend towards increased prosecution in 2005.
- 83.
- 84.
- 85.
Thus, the police made 1,228 arrests between 11 September 2001 and 31 March 2007, 132 were charged with terrorist offences and 76 handed over to immigration authorities; 41 had been convicted under the Terrorism Act by September 2008 with trials of 114 persons – not all charged with terrorist offences – still pending (Home Office 4).
- 86.
Secretary of State v E [2007] UKHL 47; [2007] EWCA Civ 459.
- 87.
See the House of Lords judgment in MB, op cit. – the failure to address this argument also means that deeper issues also remain to be addressed, most fundamentally of course the fact that depriving suspects of rights is to fall for the fallacy of presuming guilt, the cardinal sin in undermining the principles of criminal procedure – see Luban (2005) 252–254.
- 88.
In relation to the Northern Ireland Settlement, see Warbrick (2004), pp. 375–376.
- 89.
Although there is no fundamental difference in the treatment of British citizens and non-British citizens inherent in the criminal law, the possibility of deportation will certainly mean that factually treatment may differ. This has become particularly clear recently in the discussion of detention without trial (Section 4 of the Anti-Terrorism, Crime and Security Act 2001) and thus in the anti-terrorist context – where an argument of discrimination was brought before the courts and could be made that such specialist mechanisms are a clear indication of a willingness to treat different categories of suspects differently. The House of Lords was critical of this argument stating that the scenario in question related specifically to foreigners who were thus in a situation British citizens could not find themselves in. This scheme was in force from 2001 until 2004 when it was declared in breach of articles 5 and 14 of the European Convention by the House of Lords in A and others v the Secretary of State for the Home Department ((2004) UKHL 56;[2005] 2 AC 68; [2005] 2 WLR 87; [2005] All ER 169). The Government then replaced this with the control orders scheme which falls outside of the criminal justice system (see part 4 of the 2005 PTA) and is applicable to both British citizens and foreigners.
- 90.
The depths of this pragmatism and lack of principle can be seen in the UK’s intervention in the case of Saadi before the European Court of Human Rights, in which it argued as a third party intervener argued that the risk a deportee faces of being tortured should be balanced against the risk he poses to national security in the state wishing to deport him: see Saadi v. Italy, judgement of the Grand Chamber of the 28 February 2008 (application number 37201/06) and Dworkin (2008).
- 91.
Although this is not always easy to maintain in the face of cases such as Yezza, see Osley (2008).
- 92.
Germany, for instance, requires a sentence to at least 3 years to allow deportation as a consequence – Szyszkowitz (2005), p. 50.
- 93.
Note, for example, that 3 of 18 men placed under control orders – a scheme firmly in control of British authorities – have absconded: Liberty (2007).
- 94.
The control orders scheme thus has serious implications for any right to be informed of the case against one – see Norton-Taylor (2008).
- 95.
Reportedly established to prevent anyone associated with terrorism securing any assets at all (The Times 2007).
- 96.
Home Office.
- 97.
O’Neill 2008.
- 98.
- 99.
Home Office (c).
- 100.
McNulty (2008).
- 101.
Home Office, though according to Liberty (2007) it appears to have been 18.
- 102.
By 2008, the relevant figures were “263 separate accounts containing over £650,000” – see http://www.publications.parliament.uk/pa/cm200708/cmhansrd/cm080520/wmstext/80520m0001.htm, note that asset recovery and freezing is foreseen in accordance with section 28 of the 2000 TA but that these orders are described as in line with the Terrorism (United Nations Measures) Order 2006.
- 103.
Beck (1992); Braithwaite (2000) – in this respect, it is also interesting to note that an additional 61 million pounds sterling have been allocated to the responsible police forces to fight terrorism, whilst far greater sums have gone to the health service and fire services to enhance coping capabilities [Home Office (f)]
- 104.
Home Office 3.
- 105.
Home Office 2001.
- 106.
See, e.g., Summers 2003.
- 107.
Created by section 1 of the Crime and Civil Disorder Act 1998.
- 108.
See Home Office (e).
- 109.
Fenwick, p. 1346.
- 110.
Feeley and Simon (1994).
- 111.
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Wade, M. (2010). Fighting Terrorism – the Unprincipled Approach: the UK, the War on Terror and Criminal Law. In: Wade, M., Maljevic, A. (eds) A War on Terror?. Springer, New York, NY. https://doi.org/10.1007/978-0-387-89291-7_15
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