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Abstract
The article examines how the procedures for investigating and prosecuting terrorism as a criminal offence have come to be regarded as inadequate, or at least insufficient, since 9/11. How do we explain, and how should we evaluate, the proliferation of new regimes and the new paradigm of civil prevention orders as a means of responding to terrorism?
Keywords:
Disclosure statement
No potential conflict of interest was report by the author.
Notes on contributor
Dan Squires QC is a barrister practicing at Matrix Chambers specialising in public law and human rights and a Visiting Professor in the Law Department at Queen Mary University of London. He represents claimants and public authorities as well as non-governmental organisations. Dan’s human rights/public law practice encompasses a wide range of areas including terrorism, national security, prison law, police powers, privacy, and general issues relating to fair trial rights. He has appeared in European Court of Human Rights and Supreme Court cases on terrorism stops, police databases, religious freedoms in the workplace, financial sanctions regimes imposed on those accused of terrorism, race discrimination in school admissions, prison law and the retention of DNA by the police. He has also been involved in leading cases on the treatment of detainees in Iraq. Dan is the co-author, with Cherie Booth QC of The Negligence Liability of Public Authorities (Oxford University Press, 2006) and has published articles in leading law journals. Dan has taught at King's College London, London School of Economics, the University of Puerto Rico and Northeastern University, Boston. He has held fellowships at the Carr Centre of Human Rights at Harvard University (2003–2004) and the Cegla Centre at Tel Aviv University (2005) and has been a visiting scholar at the University of British Columbia, Vancouver (2007) and adjunct professor and visiting scholar at Northeastern University, Boston (2011).
Notes
1. Lord Lloyd, Inquiry into Legislation against Terrorism (London: Cm 3420, 1996).
2. See Clive Walker, The Anti-Terrorism Legislation, 3rd ed. (Oxford: Oxford University Press, 2014).
3. This shift is not absolute. New terrorism criminal offences have been created since 9/11 (see Terrorism Act 2006, Pt I), and the Counter Terrorism Act 2008 extended sentencing powers. Furthermore, non-criminal security measures existed pre-9/11: see for example interment in Northern Ireland in the early 1970s (Gerard Hogan and Clive Walker, Political Violence and the Law in Ireland (Manchester: Manchester University Press, 1989), Chap. 3). However, the extent of the non-criminal responses is new.
4. See footnotes 43 et seq.
5. Anti-Terrorism Crime and Security Act 2001, Pt.IV. The terms of the derogation under art.15 of the European Convention are set out in Human Rights Act 1998 (Designated Derogation) Order 2001 (SI 2001/ 3644).
6. [2004] UKHL 56.
7. See Prevention of Terrorism Act 2005. The Act also included powers to make ‘derogating control orders' which would have deprived subjects of their liberty (see ss.4–6). No derogating control order was made.
8. Most notably, forced relocation was dropped but has now been revived by the Counter Terrorism and Security Act 2015, s.16.
9. Counter Terrorism Act 2008, Sch.7.
10. See Terrorism (United Nations Measures) Orders 2001, 2006 and 2009.
11. United Nations Security Council Resolution 1267 (1999) and subsequent resolutions permit the freezing of the assets of those ‘associated with’ Al-Qaida by a committee of the UN Security Council. For EU powers, see EC 2580/2001 and 881/2002.
12. The word ‘preventative’ assumes an impact which is not assumed in the word ‘pre-emptive’. See Helen Fenwick and Gavin Phillipson, ‘Covert Derogation and Judicial Deference: Redefining Liberty and Due Process Rights in Counterterrorism Law and Beyond’, McGill Law Journal 56 (2011): 863, fn 3. See also Lucia Zedner, ‘Preventive Justice or Pre-punishment? The Case of Control Orders’, Current Legal Problems 60 (2007): 174.
13. Secretary of State for the Home Department v. MB [2007] UKHL 46, para. 24.
14. Earlier regimes under the Anti-Terrorism Crime and Security Act 2001 and Prevention of Terrorism Act 2005 required ‘reasonable suspicion’. More recent regimes, such as The Terrorist Asset-Freezing etc. Act 2010 and Terrorism Prevention and Investigation Measures Act 2011, have required the somewhat higher standard of a reasonable belief. The 2011 Act has since been amended by the Counter-Terrorism and Security Act 2015, s.20, so as to require proof ‘on the balance of probabilities’.
15. The permissible restrictions have been detailed by the Independent Reviewers on Terrorism Legislation. See for example David Anderson, Control Orders in 2011, Final Report of the Independent Reviewer on the Prevention of Terrorism Act 2005 (London: Home Office, 2012), Annex 1, 2.
16. There was no restriction on the number of times control orders or asset freezing measures could be renewed. The same is true of measures imposed pursuant to the Terrorism Prevention and Investigation Measures Act 2011, but they now require proof of ‘new’ terrorism related activity for renewal beyond two years (s.5).
17. Ahmed v. HM Treasury [2010] UKHL 2, para. 6.
18. Ibid., para. 60.
19. See Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights (16th Report): Annual Renewal of Control Orders Legislation 2010 (2009-10 HL 64/HC 395), para. 44. That observation applies equally to TPIMs and asset freezing.
20. Ibid., para. 44.
21. Ibid., 3.
22. Hansard (House of Commons) Public Bill Committee, TPIM Bill, 21 June 2011, Q130.
23. The article is quoted in Anderson, Control Orders in 2011, para. 3.39.
24. See, for example, Prevention of Terrorism Act 2005, Schedule para 2(b), in relation to control orders. Similar provisions apply in other regimes.
25. See, for example, Prevention of Terrorism Act 2005, Schedule para. 7, and Civil Procedure Rules Part 76. Similar provisions apply in the other regimes.
26. [2009] UKHL 28.
27. Anderson, Control Orders in 2011, para. 3.7.
28. Secretary of State for the Home Department v. MB [2006] EWCA Civ 1140, para. 67.
29. See Prevention of Terrorism Act 2005, s.1(9). The other regimes adopt essentially the same definition, though with minor changes to the Terrorism Prevention and Investigation Measures etc Act 2011, s.4, following the Counter-Terrorism and Security Act 2015, s.20.
30. Terrorism Act 2000, s.12.
31. Ibid., s.15.
32. Terrorism Act 2006, s.1.
33. Ibid., s.6.
34. See, for example, Secretary of State for the Home Department v. AM [2012] EWHC 1854 and Secretary of State for the Home Department v. AY [2012] EWHC 2054.
35. Anderson, Control Orders in 2011, para. 2.9.
36. David Anderson, Terrorism Prevention and Investigation Measures in 2012, First Report of the Independent Reviewer on the operation of the Terrorism Prevention and Investigation Measures Act 2011 (London: Home Office, 2013), para. 7.15.
37. Ibid., para. 7.20.
38. Ibid., para. 7.18.
39. H.L.A. Hart, Punishment and Responsibility (Oxford: Oxford University Press, 1968), 22.
40. See further ibid., at 22–4; and also George Fletcher, Rethinking Criminal Law (Boston, MA: Little Brown, 1978), 802–7.
41. See Hart, Punishment and Responsibility, 22.
42. Lucia Zedner, ‘Securing Liberty in the Face of Terror: Reflections from Criminal Justice’, Journal of Law and Society 32 (2005): 507, 524.
44. Anderson, Control Orders in 2011, para. 2.11.
45. Lord Carlile, Fifth Report of the Independent Reviewer Pursuant to Section 14(3) of the Prevention of Terrorism Act 2005 (London: Home Office, 2010), para. 1.
46. Anderson, Control Orders in 2011, para. 3.21.
47. BBC Today programme on 23 January 2014, http://www.bbc.co.uk/news/uk-25847438.
48. Andrew Ashworth and Mike Redmayne, The Criminal Process, 4th ed. (Oxford: Oxford University Press, 2010), 41–2.
49. Ibid., 42.
50. Jeremy Waldron, ‘How Law Protects Dignity’, Cambridge Law Journal 71 (2012): 200, 210.
51. AF(no 3) v. Secretary of State for the Home Department [2009] UKHL 28 para. 61 (per Lord Phillips) and para. 72 (per Lord Hoffmann).
52. John v. Rees [1970] Ch 345, 402.
53. Ronald Dworkin, ‘The Real Threat to US Values’, The Guardian, 9 March 2002.
54. Jeremy Waldron, Torture Terror and Trade Offs: Philosophy for the White House (Oxford: Oxford University Press, 2010), 25–6.
55. Dworkin, ‘The Real Threat to US Values’.
56. Ronald Dworkin, ‘Terror and the Attack on Civil Liberties’, New York Review of Books 50, 6 November 2003.
57. Conor Gearty, ‘Terrorism and Human Rights’, Government & Opposition 42 (2007): 340, 361.
58. See Tony Blair's speech to the Labour Party National Conference on 16 July 2005: http://news.bbc.co.uk/1/hi/uk/4689363.stm.
59. https://www.gov.uk/government/speeches/threat-level-from-international-terrorism-raised-pm-press-conference, 29 August 2014.
60. Zedner, ‘Securing Liberty in the Face of Terror’, 507, 516.
61. Cass Sunstein, ‘Terrorism and Probability Neglect’, Journal of Risk and Uncertainty 26 (2003): 121.
62. Zedner, ‘Securing Liberty in the Face of Terror’, 507, 518, quoting Phil Thomas, ‘Emergency and Anti-Terrorist Powers 9/11: UK and USA’, Fordham International Law Journal 26 (2003): 1208, 1205–6.
63. Ronald Cass, ‘Damage Suits against Public Officers’, University of Pennsylvania Law Review 129 (1981): 1110, 1133–74; Peter Schuck, Suing Government: Citizen Remedies for Official Wrongs (New Haven, CT: Yale, 1983), 59–81.
64. See for example Christopher Slobogin, ‘The Civilization of the Criminal Law’, Vanderbilt Law Review 58 (2005): 121, 144–50, for discussions of the research and an argument that assessments of future dangerousness should form the basis for criminal punishment at least after conviction.
65. Terrorism Act 2000, s.1.
66. For a summary of the various measures taken, see Kamoka and others v. The Security Service [2015] EWHC 60 paras 7–14.
67. Rod Nordland, ‘In Libya Former Enemy is Recast in Role of Ally’, New York Times 2 September 2011, A1.
68. See the cases discussed in AN v. SSHD [2010] EWCA Civ 869.
69. On detention without trial: Secretary of State for the Home Department v. A [2004] UKHL 56; Secretary of State for the Home Department v. A (no 2) [2005] UKHL 71. On control orders: Secretary of State for the Home Department v. MB [2007] UKHL 46; Secretary of State for the Home Department v. E [2007] UKHL 47; Secretary of State for the Home Department v. JJ [2007] UKHL 45; AF (no 3) v. Secretary of State for the Home Department [2009] UKHL 28; Secretary of State for the Home Department v. AP [2010] UKHL 24. On deportation: RB v. Secretary of State for the Home Department [2009] UKHL 10; W (Algeria) v. Secretary of State for the Home Department [2012] UKSC 8. On asset freezing:
Ahmed v. HM Treasury [2010] UKSC 2; Bank Mellat v. HM Treasury [2013] UKSC 39. On employment vetting: Home Office v. Tariq [2011] UKSC 35.
70. See A v. UK App. No. 3455/05, (2009) 49 EHRR 29; and Othman v. UK App. No. 9138/09, (2012) 55 EHRR 1.
71. David Anderson, Terrorism Prevention and Investigation Measures in 2013, Second Report of the Independent Reviewer on the operation of the Terrorism Prevention and Investigation Measures Act 2011 (London: Home Office, 2014), para. 5.34 and Annex 6.
72. David Anderson, Terrorism Prevention and Investigation Measures in 2014, Second Report of the Independent Reviewer on the operation of the Terrorism Prevention and Investigation Measures Act 2011 (London Home Office, 2015), para. 1.3.
73. Ibid., para. 2.3.
74. Ibid. The TPIM notices of 7 of the 10 had expired after two years, two had absconded and one was in prison. The notice of the latter (DD) resumed after release from prison: Anderson, Terrorism Prevention and Investigation Measures in 2014, para. 2.4.
75. Fifty-two people were subject to control orders (Anderson, Control Orders in 2011, para. 3.14). Forty-five orders were made between 2005 and 2009, and seven between 2009 and 2012: para. 3.17). Of the 52 individuals, 24 were UK nationals (ibid., para. 3.14).
76. The JCHR in January 2014 described TPIMs as ‘withering on the vine as a counter-terrorism tool of practical utility’: Post-Legislative Scrutiny: Terrorism Prevention and Investigation Measures Act 2011 (2013-14 HL 113/HC 1014), Conclusions, para. 15.
77. The asset-freezing provisions in the Anti-Terrorism, Crime and Security Act 2001, Part 2 have been used once, to deal not with terrorism but with the collapse of an Icelandic bank. See the Landsbanki Freezing Order SI 2668/2008; Genevieve Lennon and Clive Walker, ‘Hot Money in a Cold Climate’, Public Law [2009]: 37.
78. David Anderson, Fourth Report on the Operation of the Terrorist Asset-Freezing etc Act 2010 (London: Home Office, 2015), para. 2.22.
79. Ibid., para. 2.16. The only exception was 2011 when five Iranians were listed after they were designated by the US following a plot to assassinate the Saudi ambassador in the US, allegedly directed by the Iranian government (David Anderson, Second Report on the Operation of the Terrorist Asset-Freezing etc Act 2010 (London: Home Office, 2012), para. 2.14).
80. Anderson, Fourth Report on the Operation of the Terrorist Asset-Freezing etc Act 2010, para. 2.18.
81. As David Anderson notes (ibid., para. 2.20(d)) notes, only three of the 25 Treasury-listed individuals at the end of the review period were at liberty in the UK. The rest had been convicted of serious terrorism offences in the UK or were located overseas (ibid., Annex A).
82. For the experience in Australia with control orders, where only two orders have ever been made, see Australian Government, Council of Australian Governments Review of Counter Terrorism Legislation (2013), paras 178 and 180; Clive Walker, ‘The Reshaping of Control Orders in the United Kingdom: Time for a Fairer Go, Australia!’, Melbourne University Law Review 37 (2013): 143.
83. Explanatory Notes to the Bill (London: Home Office, 2014), paras 3–4.
84. This demand for apparent activity is shared and reinforced by international edicts: see UNSCR 2178 of 24 September 2014 and the Council of Europe Additional Protocol to the Convention on the Prevention of Terrorism of 19 May 2015.
85. Michael Ignatieff, ‘The Terrorist as Auteur’, New York Times, 14 November 2004.
86. Fletcher, Rethinking Criminal Law, at 542, 800.
87. Nicola Lacey, ‘In Search of the Responsible Subject: History, Philosophy and Social Science in Criminal Law Theory’, Modern Law Review 64 (2001): 350, 361.
88. Ibid., 362.
89. [2004] UKHL 56, para. 89.
90. Ibid.
91. An officer of the Royal Marines wrote of internment in Northern Ireland: ‘It has, in fact, increased terrorist activity, perhaps boosted IRA recruitment, polarised further the Catholic and Protestant communities and reduced the ranks of the much needed Catholic moderates’ (see Desmond Hamill, Pig in the Middle: The Army in Northern Ireland (London: Methuen, 1985), 63).
92. 223 US 214 (1944).
93. [1942] AC 206, 244.
94. See his speeches in Secretary of State for the Home Department v. Rehman [2001] UKHL 47 [62]; RB v. Secretary of State for the Home Department [2009] UKHL 10; AF (no 3) v. Secretary of State for the Home Department [2009] UKHL 28.