The Role of the Courts in Imposing Terrorism Prevention and Investigation Measures: Normative Duality and Legal Realism (original) (raw)
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European Journal on Criminal Policy and Research:, 2012
Since 2001, the vast majority of terrorist suspects in the UK have been dealt with through criminal prosecutions and trials in the ordinary English courts. However, the British government has also been determined to give itself extra powers to deal with a relatively small proportion of suspects that its feels cannot be prosecuted through the courts. This article focuses on the introduction of powers that allowed the government to detain foreign terrorist suspects indefinitely without trial and to restrict individuals’ movements through the imposition of control orders. These measures have been highly controversial and have been contested by important sections of British society. In this context, the powers have either been significantly constrained by the courts or dropped by the government. Analysing these developments, the article shows how norms of security, liberty and proportionality have helped to shape and constrain Britain’s legal response to terrorism over the last decade. Such constraints raise questions about the commonplace belief that liberal democracies in the post 9/11 world are moving towards the development of increasingly authoritarian responses to terrorism.
International Human Rights and Counter-Terrorism, 2019
In the UK the rise post-2005 in 'home-grown' terrorism, relying to a significant extent on strikes on soft targets by 'self-starters', means that the search for effective preventive measures remains a continuing concern. Below a number of the preventive counter-terror measures adopted post 9/11, and incrementally strengthened in response to the current threat, are found to fall into three categories and represent interventions at the stages in the path towards attacks. This chapter focuses on selected examples of these preventive measures. In terms of three key stages, firstly, there is the attempt to prevent radicalisation, under the 'Prevent' strategy. A second strategy relies on taking certain measures to control the activities of those considered likely-on the balance of probabilities-to engage in terrorist-related activity. A third preventive strategy relies on the special terrorism offences under the Terrorism Acts 2000 and 2006, as amended, intended to allow for intervention at a very early stage in terrorist plots and in preparing or instigating terrorist acts ('precursor' offences).
Terrorism, Security, and Liberty
2009
Concentrating specifically on terrorism in the United Kingdom, this dissertation seeks not to answer the question of security versus liberty, but to negate it. Using the judicial tests of necessity and proportionality, it assesses the case for the introduction of the recent counter-terrorism legislation, with comparison to existing criminal laws. It then turns to the treatment of terrorist suspects, to examine whether certain rights really are inalienable and universal, or whether exceptional circumstances determine differing prerogative. Finally, there is an examination of the everyday freedoms that terrorism legislation restricts, and an assessment of what extent the counter-terrorism measures themselves could pose a threat to democracy.
Laws
Terrorism is a concept that defies a simple and straightforward legal definition. Therefore, it is not surprising to find that there is no Comprehensive Convention on Terrorism with a universally accepted definition of what constitutes “terrorism.” Consequently, States have devised their own definitions of what constitutes terrorism that are typically found in their criminal law. This raises the fundamental question of whether there is a convergence or divergence in jurisprudential trends on what constitutes terrorism among States? Presumably, a convergence in jurisprudential trends is more likely to contribute to combatting the threat of terrorism at the international and national levels. Accordingly, this article comparatively analyzes the definition of terrorism in three common law jurisdictions: the United Kingdom, the United States, and Canada. It finds that although there are a number of similarities in the definition of terrorism in these three States, they have significantly...
Balancing Security and Liberty: Critical Perspectives on Terrorism Law Reform
ANU Press eBooks, 2008
Introduction: The Balancing Model Much of the debate post-September 11 (9/11) about expansion of state power to combat terrorism has been framed as striking a balance between security and liberty. 1 The 'balancing approach', whereby security is reconciled with respect for fundamental liberal rights and values, has been very influential in counter-terrorism law reform in Australia. 2 As the former federal Attorney-General Philip Ruddock pointed out: We don't live in an ideal world. We live in a world of trade-offs. And now we live in a world where we must accept the costs associated with protecting ourselves from terrorism … There will always be a trade-off between national security and individual rights. The task of government is to recognise these trade-offs and preserve our security without compromising basic rights and liberties. 3
U.K. Counterterrorism Law, Pre-Emption, and Politics
New Criminal Law Review: An International and Interdisciplinary Journal, 2017
Since the turn of the century, across North Atlantic countries, counterterrorism law has been an area of relentless, highly prioritized, legal production that often challenges rule of law principles. This article provides a general overview of United Kingdom counterterrorism legislation and, drawing from jurisprudence, state theory, and political philosophy, constructs an analytical framework to assess its implications for the broader shape, function, and logic of law. It starts by assessing the dynamic tension between authoritarian and democratic elements that constitutes modern law, thus setting the overall conceptual framework in which counterterrorism law pertains. It proceeds to analyze U.K. counterterrorism law, by juxtaposing it to its United States counterpart and by deciphering the key trends into which its provisions combine. Based on this account, the article considers the implications of counterterrorism law for the law-form, that is, for the articulation between legal content, logic, and institutionality. It finds that, although the content and logic of counterterrorism law are incompatible with rule of law principles, they are developed in an institutional framework adherent to the rule of law. To account for this paradox, the article concludes that counterterrorism law signals the advent of authoritarian legality, a reconfiguration of the rule of law where the latter holds its institutional shape, but comes to consist of, and be driven by, authoritarian content and purposes. The article outlines the main characteristics of authoritarian
James Cook University Law Review, 2008
Court handed down its judgment in Thomas v Mowbray. The case concerned the constitutional validity of the terrorism control order regime contained in the Commonwealth Criminal Code, as used against a Victorian man. Jack Thomas. While the decision dealt with a number of significant constitutional issues, this paper focuses on the Court's use of the Commonwealth's defence power to provide a foundation for the constitutional validity of the impugned legislation. This is, arguably, the most important aspect of the decision. Specifically, the writer argues the following: (i) that the Court's enlarged conception of the defence power was inconsistent with the text of the placitum; (ii) that the Court failed properly to perform the task of characterisation to determine whether the impugned legislation was within the scope of the defence power; and (iii) that the Court, in its invocation of thé defence power, miscbaracterised the nature of the threat posed to Australia by Jihadist terrorism.^ In relation to (i)