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ABSTRACT
Crimes such as terrorism pose some of the biggest contemporary challenges to criminal justice systems across the world. Systemic reaction in preventing such criminality raises numerous legal and political issues, for instance, cross-jurisdictional collaboration, investigation and prosecution and of course the erosion of civil liberties such as the right to privacy. This article explores two current criminal justice challenges posed by terrorism: the successful prevention, prosecution and management of perpetrators and matters relating to due process and fairness. The idea of a National Security Court (NSC) or ad hoc NSC is developed around the criticisms levied at the use of secret courts and Diplock trials, the rigorous testing of evidence and special advocates in the United Kingdom. The evidence used to prosecute such criminality is explored, taking motivation from Foucault’s ‘panopticons’ and Benjamin’s ‘crystal constellations’ to create ‘coincidental forensics’, where fragments of evidence from criminality are brought together to complete a picture. The overarching aim of this article is to highlight some of the contemporary challenges facing criminal justice in balancing a set of complex competing interests in relation to terror crime.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes
1 The United Kingdom authorised a drone airstrike that killed two British men who had radicalised to join the terror group ISIS. The attack was made following evidence obtained from surveillance showing that the two men planned to commit heinous crimes on British soil. The then prime minister, David Cameron, stated that the attack was authorised as a ‘necessary and proportionate [measure] for the individual self-defence of the UK’ and its ‘inherent right to self-protection’.
2 Knowledge of crime aids political decision making, measurement of activity and choices made—the Foucauldian notion of discursive regimes can be applied here.
3 I borrow Jeremy Bentham and Michel Foucault’s notion of panopticism to describe the response to terror crime as requiring a panoptic or all-visual response. This is in line with Foucauldian reasoning that this solution (panopticism), although he discussed it in relation to prisons, leads to an entire ‘new’ society being formed.
4 For instance, the modern terrorist is often not an alien but a British citizen; it could be your neighbour, and that makes detecting, distinguishing, surveilling and preventing them from perpetrating acts of terror an incredible task.
5 My forthcoming article (Singh, C., Defining and Responding to Terrorism in 2020: The Panoply of Challenges Facing International Criminal Justice) reviews this in depth—this article is informed by conference discussions at various academic conferences and from my time as Research Fellow at the Hong Kong University. See: Saul, Citation2006 and Citation2014.
6 Fragments of evidence refer to anything in the available media that can positively aid an identification of the perpetrator(s) and bring them to justice. The term media is used to denote any available evidence, ie, content from a video, voice recording, photograph or statement etc. See: Benjamin (Citation2001).
7 The Counter Terrorism and Border Security Act 2019 amends the TA 2000 with the aim of closing the digital gap and reflecting contemporary radicalisation patterns. The 2019 Act allows the CPS and police to intervene much earlier during the investigation stage and strengthens sentencing and offender management. See s 1 (amends s 12—adds reckless expressions in support) and s 3 (amends s 58—obtaining information likely to be useful to a terrorist, now includes terrorist material viewed online or streamed rather than downloaded to form a record with permanence). See also ss 4–7 and 18 of the 2019 statute for further amendments to the TA 2000.
8 The term terrorism originates from the Latin word ‘terrere’ which means to tremble or quiver.
9 More information on the full-code test is available to download from the Crown Prosecution Service website.
10 Statistical evidence indicates that the impetus for prosecution has gathered some pace during 2001–2016. Note that the gathering of relative statistical evidence was first started in 2001.
11 Operation of police powers under the Terrorism Act Citation2000 and subsequent legislation: Arrests, outcomes, and stop and search, Great Britain, year ending December 2019. Note: the data is provided to the Home Office by the National Counter Terrorism Policing Functions Command (NCTPFC) and is taken from a live database and thus is ‘real time’ information that is most accurate at the time the record is created and the information is provided to the Home Office, for current research purposes as at March 2019.
12 In 2019, 54 prisoners held for terrorism-related offences were released from custody. For islamic extremism in Europe see also: Archick, Rollins, & Woehrel, Citation2005
13 Any evaluation that looks to determine if an expert can justify (objectively) their conclusions would need to take into account the following (as a bare minimum): the extent and quality of the data, the rationale underpinning any inference drawn, degree and precision of uncertainty, the peer review process, the completeness of the data leading to any inference drawn thereby and if their methods have followed established methodological practices in the field.
14 Readers should be aware of the evidential and public interest tests used by the Crown Prosecution Service in making prosecution decisions. See ibid note 16.
15 This is the English standard of proof in criminal proceedings.
16 In the United Kingdom, there are equally a raft of issues in relation to the rights of a defendant to use informant evidence as evidence in defence, privilege, public interest immunity and in-camera court proceedings, ie, media blackout.
17 The decision concerned the rights of Moussaoui under the Sixth Amendment of the United States Constitution.
18 The judgment has been criticised for not requiring enough of the state and being too demanding on the appellant.
19 It has been suggested that the Obama administration failed to close the facility because of a number of obstacles preventing it from doing so. One such issue related to the practical consequence of bringing the detainees onto American soil; this action would have resulted in the accrual of rights for the individuals and liabilities for the state. Thus, the only viable option would be to process the individuals at the facility and prevent any new admissions. In addition, a number of issues relating to international law would also arise.
20 Secret detention is a practice that is considered to be in violation of international human rights law whether or not during a state of emergency and armed conflict. Furthermore, it is also in violation of international humanitarian law during armed conflict of any sort. Secret detention has the effect of removing a detainee from the legal framework that means the safeguards that are contained in the relevant international instruments are rendered meaningless including the ability to issue a writ of habeas corpus (independent judicial assessment of the detention). For further reading on secret detention and summaries of cases some in which it is alleged that the United Kingdom has been complicit in torture.
21 Ibid note 36.
22 In Khyam there were a number of redactions made, for instance the interviews of Amin (one of the co-defendants) taken in Pakistan where he had been tortured and ill-treated, and there was a much heavier reliance of notes (600 pages) made in interviews taken in the United Kingdom.
23 The United Kingdom’s Government in 1973 established Diplock courts, juryless courts designed to prevent the intimidation of jurors by paramilitaries.
24 There were two types of order, namely: non-derogating control orders that lasted 12 months with annual review/renew and derogating control orders. The former did not require the United Kingdom’s Government to opt out of the Article 5 right to liberty under the European Convention of Human Rights and Fundamental Freedoms. Around 35 people were subject to these orders. The latter infringed the right to liberty and required an opt-out but were never used.
25 Under the British Nationality Act 1981, the United Kingdom’s Government is entitled to strip people of British nationality on terrorism-related grounds. Under the statute in its original form, the power only applied to those holding dual nationality; in 2014 it was extended to all ‘those who there were reasonable grounds to consider that they could be eligible for another nationality’. The criticism was that this would have the effect of rendering people stateless, which is contrary the United Kingdom’s international obligations. At the time of writing, 150 jihadists and various other criminals have been stripped of their British citizenship.
26 It should be noted that there are examples of when electronic tagging has proven ineffective, with tags being easily removed and the individual absconding.
27 This provision created a special regime for the detention without charge of terror suspects. This can include a restriction on the ability of the suspect to receive legal advice. The original time limit for such detention was 7 days; this was amended by s 306 of the Criminal Justice Act 2003 to 14 days. The Government sought to extend this to 90 days following the terror attacks on London (7 July 2005). Instead, a compromise limit of 28 days was reached (s 23 of the Terrorism Act 2006); this temporary increase via the notorious sunset clause lapsed in 2011. The limit currently stands at 14 days. Note: the rationale that underpins a lengthier period of detention relates to the complexity in investigating terrorism cases and arduous task of obtaining admissible evidence or evidence that can be legitimately received by the court and stands little risk of being excluded for breaches of law or abuse of process etc.
28 The reference originally reads:
an increasingly attractive compromise solution to the seemingly irreconcilable division between those who believe that terrorism suspects are not entitled to the traditional criminal process and those that believe not only that they are, but that any other system is categorically unconstitutional.
29 When put to a House of Commons vote on the Bill, 291 voted for the 90-day amendment and 322 voted against it. Interestingly, 49 Labour MPs rebelled against their own party. But the House did back a 28-day detention instead by 323 to 290.
30 Special advocates are lawyers with at least 5 years of legal practice experience. The selection procedure involves a panel of senior government officials and lawyers with the treasury solicitor’s department. All special advocates must go through a thorough vetting process in which they must disclose detailed personal and financial information.
31 Wade argues that:
The war against official secretiveness [rages on] which on other fronts has been won … abuse of so-called crown privilege under which the government used to claim that litigants must be denied access to evidence needed to establish their rights if the evidence was found within very wide classes which were officially confidential.