Terrorism investigations and prosecutions in comparative law

The collection of articles in this special issue originated from a one-day conference held at the School of Law, Queen Mary University of London on 10 May 2013, co-organised by the Queen Mary Criminal Justice Centre and the European Criminal Law Academic Network. The conference was supported by Hart Publishing and the European Criminal Law Association (UK). The purpose of that event and of this special issue is to highlight thematic similarities and differences between the meta-models of accusatorial and inquisitorial criminal procedures and to assess their implications and outputs as applied to terrorism investigations and prosecutions.

The focus of our research reflects the fact that terrorism has become a global preoccupation and therefore the reactions of nation states facing up to the same agenda become comparable. By contrast, before 9/11, those countries most afflicted by terrorism struggled to engage the attention of fellow nations, and so a lack of energy characterised international cooperation and comparative developments. Even the mighty United States had to resort to subterfuge and force in the absence of whole-hearted assistance from allies, such as in the case of Fawaz Yunis, who was lured from Lebanon onto a yacht in the eastern Mediterranean Sea with promises of a drug deal and arrested once the vessel entered international waters.¹ Many countries had no terrorism at all, and even some which had experienced destabilising terrorism campaigns, such as (West) Germany, produced a minimal legislative response confined to tangential issues (such as the role of lawyers and prison conditions).² By contrast, the United Kingdom (UK) had not stinted on domestic legislation against terrorism before 9/11, the latest compendium, the Terrorism Act 2000, arriving on 19 February 2000. However, British diplomats had long striven with limited success to win allies in countering terrorism, such as in the tasks of closing off funding for the IRA³ or securing the rendition of fugitives.⁴

The tide turned immediately following the 9/11 attacks. United Nations Security Council Resolution (UNSCR) 1373 of 28 September 2001, article 3, demanded the promotion of international cooperation and the national implementation of the then 12 terrorism-related multilateral treaties including, above all, the UN Convention on the Suppression of Terrorist Finance 1999.⁵ As an indicator of the response, the four nations which had become signatories to the Convention before 9/11 (Botswana, Sri Lanka, UK and Uzbekistan) were joined within two years by 128 others. As inspected and documented by the UN Counter Terrorism Committee (at least until it stopped publishing the details in 2006),⁶ a profusion of legislation has followed, inspired in part by the multi-lateral treaties existing at the time of 9/11,⁷ but spurred on further by three additional influences. One has been additional international law-making at the UN, with imperative requirements specified in the Security Council Resolutions 1624 of 14 September 2005 (‘Prohibition of incitement to commit terrorist acts’) and 2178 of 24 September 2014 (‘Addressing the growing issue of foreign terrorist fighters’). Second, regional institutions have also been stimulated into action, especially in Europe, with the Council of Europe's Convention on the Prevention of Terrorism 2005⁸ (and the Additional Protocol of the 19 May 2015 which also deals with foreign terrorist fighters) and the European Council Framework Decision on Terrorism of 2002.⁹ Third, national legislation in place at the time of 9/11, especially the UK's Terrorism Act 2000 and the US' Patriot Act 2001 following soon afterwards,¹⁰ has been adopted as a template by other countries. One can find strong resonances in many jurisdictions even as far afield as Ethiopia.¹¹ This policy transfer¹² may have been motivated in some cases by admiration of the design and content of the foreign counter-terrorism code, but advice and security arrangements, often between unequal national partners¹³ or flowing from international bodies such as the UN’s Counter Terrorism Committee or the Financial Action Task Force,¹⁴ also account for some of this reproduction. An example of national security partnerships may be located in the bilateral strategic partnership agreements entered into by the UK as part of the Foreign & Commonwealth Office's Counter Terrorism Programme, as underpinned by the Counter Terrorism Progress Fund which can assist the development of human rights as well as protective security and counter radicalisation.¹⁵ These have latterly been termed Justice and Human Rights Partnerships; each one ‘seeks to reduce the threat to the UK and its interests by developing the capacity of countries from which terrorist threats originate to investigate and prosecute terrorists with full respect for human rights’.¹⁶ Examples include a UK-Kuwait Joint Steering Group which was inaugurated in November 2012 to discuss issues of defence and security cooperation.¹⁷ Similar discussions took place with Saudi Arabia, under the Memorandum of Understanding on the Fight against Terrorism, the Sale of Narcotics and Organized Crime, though its details are not public.¹⁸ However, national security policy transfer has not always been smooth.¹⁹ To illustrate further, a treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Socialist Republic of Vietnam on Mutual Legal Assistance in Criminal Matters was signed in 2009.²⁰ Since then, a ‘UK-Vietnam Strategic Dialogue’ began following a strategic partnership agreement signed in 2010. Several meetings have followed, with counter-terrorism being an item on the agenda, including assistance with building a Training Centre for Counter Terrorism.²¹ At the same time, there are difficulties with the pursuit of this cooperation because of Vietnam’s human rights record, which means that it is designated by the UK government's Foreign & Commonwealth Office as a ‘country of concern’.²²

One result of these divergent influences is that the uniformity and strict compliance demanded at the international level is much diluted by national adaptations and choices:

The global anti-terror campaign may appear to have broken down the international law barrier to creating a binding legal framework applicable to all states. But that just tossed the problem of global coordination over to the comparatists, who could easily have predicted that the variety of national legal systems would produce hugely varying responses to the same mandates. The world is not yet a place where globally coordinated action will produce a world-wide web of legal interdiction.²³

Despite the consequent problems of inconsistency, which add to problems of constitutional affront and uncertain impact, the second result of the post 9/11 trend is that it is now impossible to find any jurisdiction without a substantial amount of counter-terrorism law. However, a third feature is that it has been a long haul to reach that situation, much longer than expected in 9/11. Thus, some countries have only just completed their quota. For example, Kuwait has recently put in place the Financing of Terrorism Law 2013,²⁴ Saudi Arabia's Penal Law for Crimes of Terrorism and its Financing 2013 is comprehensive but highly controversial,²⁵ while Vietnam has enacted framework legislation in the shape of the Anti-Terrorism Law 2013 but with many more details to be elaborated later.²⁶

In response to these processes of national policy transfer, some scholars have conducted comparative studies which have looked at the trends affecting the proliferation and endorsement of counter-terrorism measures. In this way, Laura Donohue, in The Cost of Counterterrorism: Power, Politics, and Liberty,²⁷ has produced a deep analysis of the paths of UK and US counter-terrorism laws and their interplay. David Cole has also explained how protections of liberty and privacy can impact on each other and produce different results in the counter-terrorism laws of the UK and US.²⁸ Most ambitious of all, Kent Roach in his book, The 9/11 Effect,²⁹ documents the instances and strengths of policy transfers between the jurisdictions of Australia, Canada, the UK and the US, with an overlay of UN influences. Interestingly, he concludes that ‘many states have looked not to the United States but to the United Kingdom for guidance’.³⁰ He also points to a prime danger with such policy transfers, namely that ‘British transplants or migrations have been adapted to very different and often less democratic local cultures.’³¹

The foregoing commentaries offer very valuable scholarship. But their scope is limited in some significant respects. In particular, they have tended to focus on common law jurisdictions with shared historical antecedents in law. This background often renders legal transplants very tempting because an ally, such as the UK, has performed all the legislative due diligence and has also set a strong precedent as to the legitimacy of the reform. It also makes the transplant relatively straightforward in technical terms, since the legal systems in the common law world are built upon similar principles, systems and terminology. However, much less attention has been paid to policy transfer in the counter-terrorism field between common law national systems and civil law national systems. Such broader comparative studies are rather thin on the ground, but there are some notable exceptions which have delineated extensive comparisons and important lessons with a focus on France,³² Germany, Italy, Spain and the UK.³³

In that vein, the aim of this special issue is to explore further the implications of counter-terrorism laws for civil and common law systems and whether principles or rules can be exchanged profitably between them. We seek to go further than previous studies by concentrating in depth on selected issues and by producing not just a comparison but an evaluation. This aim will necessarily entail consideration of the details of given features of counter-terrorism laws and evaluation of the prospects for policy transfer. In addition, our studies will also raise deeper issues of systems coherence.

The last point is the main theme of the initial two articles in the collection, which set out basic themes of comparison between criminal justice systems. The initial article, by John Spencer, ‘Adversarial vs inquisitorial systems: is there still such a difference?’, sets the scene for the potential for counter-terrorism developments to be shared between common law and civil law systems of criminal justice by querying the common perception that the English system of criminal procedure is ‘accusatorial’ whilst those in continental Europe are ‘inquisitorial’ and that these categories are distinct. It is contended that distinct traditions have been modified over the years on both sides, so that pure versions of the two meta-systems, ‘common law’ or ‘civil law’, no longer exist. Of course, this melding is in part attributable to other meta-systems overlays within Europe arising from the interventions by the European Convention on Human Rights and the European Union (EU), both of which have been important, if sometimes unwelcome, forces for harmonisation or at least transplantation and cross-fertilisation. With reference to counter-terrorism, the perpetual revolution of criminal justice reforms, reflected notably in France by influences from the common law model (such as the possibility of plea-bargaining, some recognition of the right to silence, and even the proposed abolition of the investigating judges) has been witnessed to a significant extent.³⁴ Equally, the existence of a mixed system in Italy shows that positive elements from the two systems may also be merged in order to ensure the respect of two opposite needs: the protection of society and the safeguard of suspects and defendants' rights.³⁵ Finally, the impact of EU criminal justice initiatives following the Stockholm Programme have been pushing towards increased harmonisation of the different approaches.³⁶

The difficulties of finding a suitable balance between the interests served by criminal justice is further illustrated by the second article, ‘Of hearsay and beyond: is the Italian criminal justice system an adversarial system?’ by Michele Panzavolta. Through the prism of successive reforms of the Italian procedural code, an examination of such features as the role of investigation as opposed to trial, of appeals, and of rules of evidence such as hearsay, all help to draw out the impacts for the protection of the individual or the assertion of state authoritarianism. The article also reiterates the point of Spencer that jurisdictions do not seek purity per se but rather are susceptible to pressures which produce successive reforms and almost inevitably amount to more mixed systems.

The remainder of the articles focus on terrorist investigations and prosecutions. They take up the implications of the differences in the two meta-systems and also their growing harmonisation so as to analyse and critique how these factors are affecting developments in counter-terrorism laws. A range of such issues is selected.

At the pre-trial stage, the common law indulgence generally shown towards street-level policing powers has been occasionally brought to task by European human rights judgments, though less so based on the direct threat to liberty³⁷ and more so based on the contingent implications for privacy.³⁸ The result is to exert new forms of control over policing discretion and opening judicial oversight over traditional policing activity. This trend will be examined by Genevieve Lennon in her article, ‘Stop and search powers in UK terrorism investigations: a limited judicial oversight?’ She finds that both civil law and common law systems are affected by the trend. What can be learnt here is, first, that street-level counter-terrorism laws often have a major impact on individuals and communities, more so than some of the legal issues on which the spotlight often more brightly shines, such as special offences against incitement to terrorism or terrorism prevention and investigation measures.³⁹ The second message is that a myriad of detailed techniques – not only exercisable by the judges but also by the legislature and executive – are required in order to secure observance of individual rights and police accountability. In that respect, a comparison between both meta and micro systems can be profitable.

Post-charge questioning of terrorist suspects involves a notable set of further legal techniques, the very meaning and operation of which can differ markedly between common law and civil law criminal justice systems. The article by Clive Walker, ‘Post-charge questioning in UK terrorism cases: straining the adversarial process’, explains how post-charge questioning was introduced in UK law in 2008, after studies as to whether a more comprehensive borrowing from inquisitorial systems would be appropriate. Since that radical solution was not accepted, different forms of legal architecture and oversight were required in the UK as compared to civil law systems. Nevertheless, this transplantation has been received with trepidation by professionals, reflected in the fact that the law was not brought into force for several years and that it has never been applied in any case. Thus, we learn that policy transfer on paper and in practice can be very different when insufficient account is taken of the meta-system setting.

Another stark contrast between meta-systems concerns the roles of the interception of communications. In the UK, interception data are barred from use as evidence in normal criminal proceedings, though they may be used in special tribunals which can operate under forms of ‘closed material procedures’.⁴⁰ By contrast, civil law systems (and indeed many other common law systems) rely heavily upon intercept evidence at trial. In her articles, ‘The interception of communication in France and Italy – what relevance for the development of English law?’, Francesca Galli explains the operation of intercept data collection and usage in France and Italy and assesses the relevance of these foreign experiences for the development of English law.

The final article in the series, ‘Terrorism and pre-emptive civil processes’ by Dan Squires returns to the fundamental problem of what makes terrorism so hard to handle under ‘normal’ legal processes, whether they are civil law or common law systems. The article explores in particular why the emphasis on pre-emption when dealing with terrorism has resulted in a move away from criminal justice which entails at the same time considerable compromises to what would otherwise be the normal expectations as to standards of justice. Rejecting on the facts any argument based on a rational risk calculus, the author finds that the only convincing explanations lie in political rather than legal terms. No easy solutions can be found for repairing the damage to due process, whether by specifying a minimum standard of disclosure (the ‘gist’) or by the appointment of special advocates, albeit these devices have been tried out in several common law jurisdictions and have received some endorsement by the European Court of Human Rights.⁴¹ By contrast, his article doubts the efficacy of such devices as a counterbalance to the damage caused by what he views as the cruel and unnecessary excesses of counter-terrorism laws. There may be two provisos to be considered in future studies. One is that the element of certainty of commitment to terrorism which is claimed to be generally absent or at least unproven may become somewhat easier to sustain in the case of returning ‘foreign terrorist fighters’ (about which more below). They at least have committed defined actions with defined intentions, all of which can more comfortably be disclosed and examined. Thus, the author's doubts about the predictive knowledge of the security authorities may become less of a worry. Second, if counter-terrorism legislation is to be viewed as an illegitimate aberration by being preventative in its approach, then the same is true of much of what is novel in criminal justice systems in the last few decades, including anti-social behaviour orders, football hooliganism orders and other social control orders, and confiscation regimes against drug dealers.⁴² In that respect, the current counter-terrorism laws are much more embedded than the likes of wartime detention regimes mentioned by the author, as was always the intention of Lord Lloyd who was the ‘founding father’ of the UK's Terrorism Act 2000.⁴³ This finding may point towards the need for work on a better jurisprudence of intelligence rather than the rejection of the proposition that intelligence can ever be a sound basis for legal action.⁴⁴

In conclusion, the combating of terrorism is becoming a preoccupation of an ever-widening circle of countries. One factor for that spread is that the phenomenon of foreign terrorist fighters⁴⁵ triggers concerns for countries from which the fighters derive and to which they return – in other words, a potentially very wide range of jurisdictions. In the future, the way forward for states is likely to involve more of the same. The main approach will involve dialogue between, and education of, policy circles which will seek consensual and consolidated solutions, often reflecting an amalgam of civil law and common law precedents. However, this mode of approach will be interspersed with strong and precipitate action whenever an outrage occurs in a given country. At that point, quick and ready-made solutions will be sought, resulting in further jurisdictional policy transfer. However, the resulting formations will not be uniform or necessarily elegant since neither meta-system has a meta-sovereign to ensure otherwise, nor are states willing for their basic sovereignty to be lost even in the face of terrorism.⁴⁶

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes on contributors

Francesca Galli is Assistant Professor at the Faculty of Law of the University of Maastricht. She holds a BA and MPhil in Political Sciences (2005) with a specialisation in international and diplomatic studies (Laurea in Scienze internazionali e diplomatiche) at the University of Trieste (Italy), a Masters of Law of the Institut d'Etudes Politiques de Paris (Master en carrières judiciaires et juridiques, Diplôme de l’Institut d'Etudes Politiques) (2006) and a PhD in law at the University of Cambridge (2010) entitled Anti-terrorism legislation in the UK, France and Italy from 1965 Onwards, focusing on selected themes of criminal law and procedures in the area of counter-terrorism legislation and case law. Before joining the Department of International and European Law she has worked as an FNRS post-doctoral researcher at the Institut d'Etudes Européennes of the ULB in Brussels where she has conducted a research project under the supervision of Prof. Anne Weyembergh entitled: «L'Union européenne et la prévention du terrorisme: impact sur le droit pénal et redéfinition de la relation entre le droit pénal européen et les droits pénaux nationaux” (2010–2013). Galli's main area of interest is the relationship between European and national criminal law. Her research has developed around the shift towards prevention in the fight against terrorism. She has first analysed the broader picture of developments in criminal justice in recent years from a comparative law perspective and then brought the analysis of current trends to a European dimension. Her monograph, The Law on Terrorism: The UK, France and Italy Compared, has been published by Bruylant in 2015. Francesca is a scholar of the Maastricht Centre for European Law, a member of the European Criminal Law Academic Network and a member of the Association Internationale de Droit Penal.

Valsamis Mitsilegas is Professor of European Criminal Law and Director of the Criminal Justice Centre at Queen Mary, University of London. From 2001 to 2005 he was legal adviser to the House of Lords European Union Committee. His interests and expertise lie primarily in the area of EU law, in particular EU Justice and Home Affairs (including immigration, asylum and border controls, criminal law, police and judicial cooperation in criminal matters and the external dimension of EU action in these fields). He is also an expert in the field of national and international legal responses to transnational organised crime, money laundering and terrorism. Professor Mitsilegas provides regular advice to the UK government and the judiciary of England and Wales. He is actively engaged with the legal profession regarding the impact of EU law on the domestic legal system. He is also a regular consultant to parliaments, EU institutions and international organisations. Professor Mitsilegas is also active with non-governmental organisations, think tanks and academic networks aiming to shape European and domestic law and policy on immigration and crime.

Clive Walker is Professor Emeritus of Criminal Justice Studies at the School of Law, University of Leeds, where he has served as the Director of the Centre for Criminal Justice Studies (1987–2000) and as Head of School (2000–2005, 2010). He has written extensively on terrorism, with a PhD and LLD (University of Manchester, 1982 and 2015) and numerous published books and papers not only in the UK but also in several other jurisdictions. He has been a visiting professor at many universities, including George Washington and Stanford Universities in the USA, and Melbourne and New South Wales in Australia. His latest books on terrorism include Terrorism and the Law (Oxford University Press, 2011), work for which was funded by an AHRC fellowship, and The Anti-Terrorism Legislation (3rd ed., Oxford University Press, 2014). He is currently the special adviser to the Home Office's Independent Reviewer of Terrorism Legislation and has served as a special adviser to the UK Parliamentary Select Committee which scrutinised what became the Civil Contingencies Act 2004. A book commentating upon that Act, The Civil Contingencies Act 2004: Risk, Resilience and the Law in the United Kingdom, was published by Oxford University Press in 2006. In 2016, he became a Queen's Counsel (Hon).

Notes

1. US v. Yunis 924 F.2d 1086 (1991).

2. See Kurt Groenewold, ‘The German Federal Republic’s Response and Civil Liberties’, Terrorism and Political Violence 4 (1992): 136–50.

3. See James Adams, The Financing of Terror (New York: Simon & Schuster, 1986); Clive Walker, The Anti-Terrorism Legislation (Oxford: Oxford University Press, 2002), 77–8; Jonathan M. Winer and Trifin J. Roule, ‘Fighting Terrorist Finance’, Survival: Global Politics and Strategy 44 (2002): 87–104.

4. See Geoff Gilbert, Transnational Fugitive Offenders in International Law (The Hague: Nijhoff, 1998), Chap. 6.

5. UN Treaty Series 2178, 197. See further Andrea Bianchi, Enforcing International Norms against Terrorism (Oxford: Hart, 2004); Paul Allen Schott, Reference Guide to Anti-Money Laundering and Countering the Financing of Terrorism, 2nd sup. ed. (Washington, DC: World Bank Publications, 2006).

6. See http://www.un.org/en/sc/ctc/resources/countryreports.html.

7. In addition, asset sanctions were required by UNSCR 1267 of 5 October 1999 against the Taliban, as extended to Al Qa’ida by UNSCR 1333 of 19 December 2000. These have now been replaced by UNSCR 1988 and 1989 of 17 June 2011.

8. Council of Europe Treaty Series (CETS)196.

9. European Union Council Framework Decision on Terrorism. See Francesca Galli and Anne Weyembergh, eds, EU Counterterrorism Offences (Brussels: Editions de l’Université de Bruxelles, 2012).

10. Public Law (PL) 107-56.

11. See Anti-Terrorism Proclamation 2009 (Proclamation No. 652/2009). See Article 19, Comment on Anti-Terrorism Proclamation, 2009, of Ethiopia (London: 2010); Wondwossen Demissie Kassa, ‘Examining Some of the Raisons d’Etre for the Ethiopian Anti-terrorism Law’, Mizan Law Review 7 (2013): 49–66.

12. See Trevor Jones and Tim Newburn, Policy Transfer and Criminal Justice (Maidenhead: Open University Press, 2007); Mark Evans, ‘Policy Transfer in Critical Perspective’, Policy Studies 30 (2009): 243–68.

13. See Kim Lane Scheppele, ‘Global Security Law and the Challenge to Constitutionalism after 9/11’, Public Law [2011]: 353–77, 365.

14. For its activities, see FATF, Terrorism Financing (Paris: FATF, 2008); and FATF, International Standards on Combating Money Laundering and the Financing of Terrorism & Proliferation: The FATF Recommendations (Paris: FATF, 2012).

15. Foreign & Commonwealth Office, Human Rights and Democracy 2013 (London: Cm. 8842, 2014), 93; Foreign & Commonwealth Office, Annual Human Rights and Democracy Report 2014 (London: Cm 9027, 2015), 67.

16. Home Office, Response to the Seventeenth Report from the Home Affairs Committee Session 2013-14 HC 231: Counter-Terrorism (London: Cm 9011, London, 2015), 6.

17. https://www.gov.uk/government/news/uk-kuwait-joint-steering-group-communique.

18. https://www.gov.uk/government/priority/safeguarding-britains-national-security-in-saudi-arabia; UN Counter-Terrorism Committee, Third Report of Saudi Arabia (New York: S/2003/583, 2003), 12, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N03/384/65/PDF/N0338465.pdf?OpenElement.

19. See Colin Murray, ‘Out of the Shadows: The Courts and the United Kingdom’s Malfunctioning International Counter-Terrorism Partnerships’, Journal of Conflict & Security Law 18 (2013): 193–232.

20. London: Cm. 7587, 2009.

21. See https://www.gov.uk/government/news/foreign-office-minister-hosts-first-ever-uk-vietnam-strategic-dialogue, 2011; https://www.gov.uk/government/news/uk-vietnam-strategic-dialogue, 2012; https://www.gov.uk/government/news/london-hosts-third-uk-vietnam-strategic-dialogue, 2013.

22. Human Rights and Democracy: The 2012 Foreign & Commonwealth Office Report (London: Cm. 8593, 2013).

23. Kim Lane Scheppele, ‘International Standardization of National Security Law’, Journal of National Security Law & Policy 4 (2010): 437–53.

24. No. 106.

25. Royal Decree No. 44 (12/2013). See http://www.hrw.org/news/2014/03/20/saudi-arabia-new-terrorism-regulations-assault-rights; https://www.amnesty.org/en/articles/news/2014/02/saudi-arabia-new-terrorism-law-one-more-tool-crush-peaceful-protest/. For another view, see Mehmood-Ul-Hassan Khan, ‘Saudi Arabia’s Counter Terrorism Law: A Strategic Orientation’, Defence Journal Pakistan 17 (April 2014): 17, http://www.defencejournal.com.

26. No. 28/2013/QH13.

27. Laura Donohue, The Cost of Counterterrorism: Power, Politics, and Liberty (Cambridge: Cambridge University Press, 2008).

28. David Cole, ‘English Lessons’, Current Legal Problems (2009): 136–67.

29. Kent Roach, The 9/11 Effect (Cambridge: Cambridge University Press), 2012.

30. Ibid., 427.

31. Ibid.

32. See Frank Foley, Countering Terrorism in Britain and France (Cambridge: Cambridge University Press, 2013).

33. See Anna Oehmichen, Terrorism and Anti-terror Legislation, the Terrorised Legislator?: A Comparison of Counter-terror Legislation and Its Implications on Human Rights in the Legal Systems of the United Kingdom, Spain, Germany and France (Cambridge: Intersentia, 2009); Aniceto Masferrer, ed., Post 9/11 and the State of Permanent Legal Emergency (Dordrecht: Springer, 2012); Anneke Petzsche, Strafrecht und Terrorismusbekämpfung – Eine vergleichende Untersuchung der terroristischer Vorbereitungshandlungen in Deutschland, Großbritannien und Spanien (Baden-Baden: Nomos, 2013); Aniceto Masferrer and Clive Walker, eds, Counter-Terrorism, Human Rights And The Rule Of Law: Crossing Legal Boundaries in Defence of the State (Cheltenham: Edward Elgar, 2013); Francesca Galli, The Law on Terrorism: the UK, France and Italy compared (Bruxelles: Bruylant, 2015).

34. See Foley, Countering Terrorism in Britain and France.

35. See Jacqui Hodgson, ‘The Role of the Criminal Defence Lawyer in Adversarial and Inquisitorial Procedure’, in Strafverteidigung vor neuen herausforderungen: denkanstöße aus sieben rechtsordnungen, ed. Thomas Weigend, Susanne Walther, and Barbara Grunewald (Berlin: Duncker & Humblot, 2008), 45–59.

36. See European Council, The Stockholm Programme – An Open and Secure Europe Serving and Protecting Citizens (Brussels: 2010/C 115/01); European Commission, Green Paper: Strengthening Mutual Trust in the European Judicial Area – A Green Paper on the Application of EU Criminal Justice Legislation in the Field of Detention (Brussels: COM(2011) 327 final).

37. Austin v. UK, App. No. 39692/09, (2012) 55 EHRR 14; Colon v. Netherlands, App. No. 49458/06, (2012) 55 EHRR SE5.

38. Gillan v. UK, App. No. 4158/05, (2010) 50 EHRR 45.

39. See Clive Walker, The Anti-Terrorism Legislation, 3rd ed. (Oxford: Oxford University Press, 2014), Chaps 6, 7.

40. See Adam Tomkins, ‘Justice and Security in the United Kingdom’, Israel Law Review 47 (2014): 305–29; Clive Walker, ‘Living with National Security Disputes in Court Processes in England and Wales’, in Secrecy, Law and Society, ed. Greg Martin, Rebecca Scott Bray, and Miiko Kumar (London: Routledge, 2015), 23–42.

41. A v. UK, App. No. 3455/05, (2009) 49 EHRR 29.

42. See Clive Walker, Terrorism and the Law (Oxford: Oxford University Press, 2011), Chap. 7.

43. See Inquiry into Legislation against Terrorism (London: Cm 3420).

44. Clive Walker, ‘Intelligence and Anti-terrorism Legislation in the United Kingdom’, Crime, Law and Social Change 44 (2006): 387.

45. See EU Counterterrorism Coordinator, Foreign Fighters and Returnees (Brussels: 15715/14, European Council, 2014); European Council, Foreign Fighters and Returnees (Brussels: 16002/14, European Council, 2014); Daniel Byman, ‘The Homecomings’, Studies in Conflict and Terrorism (2015): DOI:10.1080/1057610X.2015.1031556; David Malet, ‘Foreign Fighter Mobilization and Persistence in a Global Context’, Terrorism & Political Violence (2015): DOI:10.1080/09546553.2015.1032151.

46. This point is made explicit in the Treaty on European Union, art. 4(2): ‘The Union … shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.’