Abstract
The essays in Waldron’s Torture, Terror, and Trade-Offs have important implications for debates about the criminalization of terrorism and terrorism-related offences and its consequences for criminal law and criminal justice. His reflections on security speak directly to contemporary debates about the preventive role of the criminal law. And his analysis of inter-personal security trade-offs invites much closer attention to the costs of counter-terrorism policies, particularly those pursued outside the criminal process. But is Waldron right to speak of a ‘welcome the return to the criminal justice model’? This article considers the arguments in favour of prioritizing the prosecution of terrorist suspects and asks if their prosecution can safely proceed without undue hazard to the criminal law and criminal process.
Similar content being viewed by others
Notes
Waldron (2010)—hereafter TTT.
Finkelstein and Lewis (2010, 195).
TTT ch.2.
Waldron writes ‘the balance we ought to be talking about is not so much a balance between one thing we all like (liberty) and another thing we all like (security). It is more like the balance that is sometimes referred to when we say we should balance the interests of a dissident individual or minority against the interests of the community as a whole.’ TTT 34.
TTT 123–127.
TTT 263–4.
Fly sheet to TTT.
TTT 112.
TTT 26. See also (Gardner 2006).
J Locke Two Treatises of Government II s.93 cited in TTT 40.
TTT13–14.
TTT 43.
TTT 45.
TTT 15.
TTT 12.
TTT 12.
TTT 117.
On the relationship between objective and subjective security see Zedner (2003, 155).
TTT 46. Here Waldron is referring to more dubious psychological values like making ourselves seem ‘more ferocious and vengeful’ in our responses to terrorist attack. His point applies no less to subjective security writ large.
Though see Schneier (2006).
Zedner (2011, 110).
TTT 46.
Namely the weighing of risks in cases where actions or measures that seek to reduce one risk create another.
Zedner (2011, 120).
The shooting of Jean Charles de Menezes on the London Underground by the Metropolitan Police just weeks after the July 2005 London bombings and a day after a failed further bomb plot is an obvious example.
Stuntz (2002).
TTT 16.
TTT 7.
Feldman (2002).
See e.g. ‘Belmarsh—Britain's Guantanamo Bay?’ BBC News 6 October 2004 http://news.bbc.co.uk/1/hi/magazine/3714864.stm. Last accessed 22.03.2012.
Following the ‘Belmarsh case’. A and others v. Secretary of State for the Home Department [2004] UKHL 56.
Or for whom deportation was not available because the suspect was a British national or could not be deported for risk of torture or inhumane treatment.
Under the Prevention of Terrorism Act 2005 s.2. Similar orders were also introduced under the Australian Anti-Terrorism Act 2005.
Lord Hope in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28 at 77. See discussion in Kavanagh (2010, 836).
Under the Terrorism Prevention and Investigation Measures Act 2011.
Dworkin (2002) cited TTT 37.
TTT 37.
TTT 16.
TTT 17.
The need to avoid ‘securitising’, and thereby undermining, strategies of integration aimed at those at risk of recruitment to terrorist groups is a key principle of the UK government’s Prevent Strategy. See http://www.homeoffice.gov.uk/counter-terrorism/review-of-prevent-strategy/. Last accessed 22.03.2012.
Since 9/11 British authorities have arrested 1,963 people for terrorism offences, but convicted only 246 people for terrorism related offences. Source: http://www.equalityhumanrights.com/uploaded_files/humanrights/ehrc_hrr_full.pdf 178. Last accessed 22.03.2012.
Macdonald (2011). JCHR Renewal of Control Orders Legislation 2011. Eighth Report of Session 2010-11. HC 838.
TTT 17.
Section 78 of Police and Criminal Evidence Act 1984 gives the courts discretion to exclude from the criminal trial evidence that has been obtained unfairly. However, that section has given rise to a considerable body of case law, not least the case of A and others v Secretary of State for the Home Department (No 2) [2005] UKHL 71, in which it was held that, while evidence directly obtained by torture is inadmissible, ‘the Secretary of State does not act unlawfully if he certifies, arrests, searches and detains on the strength of what I shall for convenience call foreign torture evidence.’ para.47. See analysis in Ashworth and Redmayne (2010, 350).
Macdonald (2011).
As evidenced, not least, by the fact that seven of those subject to Control Orders absconded. Equality and Human Rights Commission Human Rights Review 2012 183. www.equalityhumanrights.com/human-rights/human-rights-review/. Last accessed 22.03.2012.
Walker (2009b).
I have argued ‘One of the most damaging apsects of the move to pre-emption is that the demands of security are deemed to warrant departure from the ordinary strictures of the criminal process.’ Zedner (2007b, 264).
Equality and Human Rights Commission Human Rights Review 2012 182. www.equalityhumanrights.com/human-rights/human-rights-review/. Last accessed 22.03.2012.
Zedner (2008, 19).
TTT 10.
Ibid. Though we might take issue with Waldron’s apparent assumption in this quote that ‘increments in safety’ do in fact result from infringing liberties.
Ashworth and Redmayne (2010).
Zedner (2007b).
Ashworth and Zedner (2010).
TTT 42–3.
See e.g., Cabinet Office (2011) Security and Justice Green Paper Cm 8194. London: HMSO ch.1. http://www.official-documents.gov.uk/document/cm81/8194/8194.pdf. Last accessed 22.03.2012. Though most of the responses to the Green Paper question the strength of claims as to the need for secrecy.
Macdonald (2011, 9).
Made by Macdonald (2011, 9–10).
S.10(5)(a) Terrorism Preventive and Investigation Measures Act 2011.
House of Lords Select Committee on the Constitution. Terrorism Prevention and Investigation Measures Bill 19th Report of Session 2010-12: 4. http://www.publications.parliament.uk/pa/ld201012/ldselect/ldconst/198/198.pdf. Last accessed 22.03.2012.
TTT 108.
TTT 49.
TTT 49.
TTT 51.
TTT 49.
TTT 79.
Ibid.
TTT 49.
Dworkin (2003, 2002).
S.1Terrorism Act 2006 (UK), for example, prohibits the making of ‘a statement that is likely to be understood by some or all of the members of the public to whom it is published as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism or Convention offences.’
‘Preventive Justice’ is the subject of a Project being conducted at the University of Oxford by the author, Andrew Ashworth and Ambrose Lee, generously funded by the AHRC. The main objective of the project is to develop an account of the principles and values that should guide and limit the state’s use of preventive techniques that involve coercion. See e.g., (Ashworth and Zedner 2011). See also (Tadros 2008).
As the English law of attempts requires under the Criminal Attempts Act 1981.
Zedner (2009).
By contrast for an interesting defence of criminalizing terrorist threats see (Walen 2011).
Melia (2011, 144).
Roach (2011, 449).
Simester and von Hirsch (2011).
Tadros and Hodgson (2009).
Ashworth (2009, 89).
Terrorism Act 2000 s.57(1). See discussion in Walker (2009b, 22).
Walker cites the examples of ‘wires, batteries, rubber gloves, scales, electronic timers, overalls, balaclavas, agricultural fertilizer, and gas cylinders’ Walker (2009a, 187).
Ashworth (2011, 248).
Ashworth (2009, 89).
Gillan and Quinton v United Kingdom (2010) 50 EHRR 45, [2010] Crim LR 415.
‘Police use of terrorism stop and search powers drops 90 per cent’ The Daily Telegraph (13 October 2011) http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/8824203/Police-use-of-terrorism-stop-and-search-powers-drops-90-per-cent.html.
Under the Terrorism Act 2006 terrorist suspects could be held for up to 28 days. This statutory period lapsed in January 2012 with the result that the maximum term reverted to 14 days.
Under the Criminal Evidence Order Northern Ireland (1988).
Independent Reviewer of Terrorism Legislation, Lord Carlile, quoted in House of Commons Library (2011) The Use of Intercept Evidence in Terrorism Cases Standard Note: SN/HA/5249.
Lord Carlile QC, Second report of the independent reviewer pursuant to section 14(3) of the Prevention of Terrorism Act 2005 19 February 2007, available at:http://www.official-documents.gov.uk/document/cm71/7194/7194.asp. Paras 34-5. Last accessed 22.03.2012.
JUSTICE Intercept Evidence: Lifting the Ban (2006); House of Commons Library (2011) The Use of Intercept Evidence in Terrorism Cases Standard Note: SN/HA/5249.
Quote by the then Assistant Commissioner of the Metropolitan Police, Andy Hayman in oral evidence to the Home Affairs Select Committee. Quoted ibid 6.
Walker (2009b, 23).
Counter Terrorism Act 2008 s. 76(1)(a). Though under s.2 of the same act ‘It is a defence for a person charged with an offence under this section to prove that they had a reasonable excuse for their action’.
(Walker 2009a, 206).
(Walker 2009a, 210).
TTT 133–4.
The principle of the least restrictive alternative, see (Ashworth and Zedner 2012).
Dworkin (2002).
And to this end, I concur wholeheartedly with Waldron’s insistence that: ‘We are not entitled to readjust the system of civil liberties simply to make ourselves safer. If we are concerned to make ourselves safer, any readjustment must be filtered through the medium of these principles.’ TTT 18.
References
Ashworth, A. (2006). Four threats to the presumption of innocence. South African Law Journal, 123, 62–96.
Ashworth, A. (2009). Criminal law, human rights and preventative justice. In B. McSherry, A. Norrie, & S. Bronitt (Eds.), Regulating deviance: The redirection of criminalisation and the futures of criminal law (pp. 87–198). Oxford: Hart Publishing.
Ashworth, A. (2011). The unfairness of risk-based possession offences. Criminal Law and Philosophy, 5(3), 237–257.
Ashworth, A., & Blake, M. (1996). The presumption of innocence in English criminal law Criminal Law Review, 306–317.
Ashworth, A., & Redmayne, M. (2010). The criminal process (4th ed.). Oxford: Oxford University Press.
Ashworth, A., & Zedner, L. (2010). Preventive orders: A problem of under-criminalization? In R. A. Duff, L. Farmer, S. Marshall, M. Renzo, & V. Tadros (Eds.), The boundaries of the criminal law. Oxford: Oxford University Press.
Ashworth, A., & Zedner, L. (2011). Just prevention and the limits of the criminal law. In R. A. Duff & S. P. Green (Eds.), Philosophical foundations of the criminal law. Oxford: Oxford University Press.
Ashworth, A., & Zedner, L. (2012). Prevention and criminalization: Justifications and limits. New Criminal Law Review, 15(4), forthcoming.
Bonner, D. (2006). Checking the executive? Detention without trial, control orders, due process and human rights. European Public Law, 12(1), 45–71.
Burawoy, M. (2005). For public sociology. British Journal of Sociology, 56(2), 259–294.
Cole, D. (2003). Enemy Aliens: Double standards and constitutional freedoms in the war on terrorism. New York: The New Press.
Dennis, I., & Sullivan, G. R. (Eds.). (2012). Seeking security: Pre-empting the commission of criminal harms. Oxford: Hart Publishing.
Dubber, M. D. (2005). The police power: Patriarchy and the foundations of American Government. New York: Columbia University Press.
Dworkin, R. (2002). The threat to patriotism. The New York Review of Books, 49(3). http://www.nybooks.com/articles/archives/2003/nov/06/terror-the-attack-on-civil-liberties/. Accessed 12 June 2012.
Dworkin, R. (2003). Terror and the attack on civil liberties. The New York Review of Books, 50(17). http://www.nybooks.com/articles/archives/2002/feb/28/the-threat-to-patriotism/. Accessed 12 June 2012.
Dyzenhaus, D. (2001). The permanence of the temporary: Can emergency powers be normalized? In R. Daniels, P. Macklem, & K. Roach (Eds.), The security of freedom: Essays on Canada’s anti-terrorism bill (pp. 21–37). Toronto: Toronto University Press.
Farmer, L. (2006). The jurisprudence of security: The police power and the criminal law. In M. D. Dubber & M. Valverde (Eds.), The new police science: The police power in domestic and international perspective. Stanford Ca: Stanford University Press.
Feldman, N. (2002). Choices of law, choices of war. Harvard Journal of Law and Public Policy, 25(2), 457–485.
Fenwick, H. (2002). The Anti-Terrorism, Crime and Security Act 2001: A proportionate response to 11 September? The Modern Law Review, 65(5), 724–762.
Finkelstein, C., & Lewis, M. W. (2010). Should Bush Administration lawyers be prosecuted for authorizing torture? University of Pennsylvania Law Review (PENNumbra), Vol. 158, p. 195. Available at SSRN: http://ssrn.com/abstract=1628304.
Gardner, J. (2006). What security is there against arbitrary government? The London Review of Books, 28(5), 1–9.
Goldsmith, A. (2007). Preparation for terrorism: Catastrophic risk and precautionary criminal law. In A. Lynch, E. Macdonald, & G. Williams (Eds.), Law and liberty in the war on terror (pp. 59–74). Annandale, NSW: The Federation Press.
Hillyard, P. (1994). The normalization of special powers from Northern Ireland to Britain. In N. Lacey (Ed.), A reader on criminal justice (pp. 63–102). Oxford: Oxford University Press.
Horder, J. (2012). Harmless wrongdoing and the anticipatory perspective on criminalisation. In I. Dennis & G. R. Sullivan (Eds.), Seeking security: Pre-empting the commission of criminal harms. Oxford: Hart Publishing.
Husak, D. (2008). Overcriminalization: The limits of the criminal law. Oxford: Oxford University Press.
Ignatieff, M. (2004). The Lesser Evil: Political ethics in an age of terror. Edinburgh: Edinburgh University Press.
Kavanagh, A. (2010). Special advocates, control orders and the right to a fair trial. Modern Law Review, 63(5), 836–857.
Loader, I., & Sparks, R. (2010). Public criminology? Criminological politics in the twenty-first century. London: Routledge.
Lynch, A., & Reilly, A. (2007). The constitutional validity of terrorism orders of control and preventative detention. Flinders Journal of Law Reform, 10, 105–142.
Macdonald, S. (2007). ASBOs and control orders: two recurring themes, two apparent contradictions. Parliamentary Affairs, 60(4), 601–624.
Macdonald, K. (2011). Review of counter-terrorism and security powers cm 8003. London: HMSO.
Melia, M. C. (2011). Terrorism and criminal law: The dream of prevention, the nightmare of the rule of law. New Criminal Law Review, 14(1), 108–122.
Roach, K. (2007). The case for defining terrorism with restraint. In A. Lynch, E. Macdonald, & G. Williams (Eds.), Law and liberty in the war on terror (pp. 39–48). Sydney: The Federation Press.
Roach, K. (2011). The 9/11 effect: Comparative counter-terrorism. Cambridge: Cambridge University Press.
Schneier, B. (2006). Beyond fear: Thinking sensibly about security in an uncertain world. New York: Springer.
Simester, A., & von Hirsch, A. (2009). Remote harms and non-constitutive crimes. Criminal Justice Ethics, 28(1), 89–107.
Simester, A., & von Hirsch, A. (2011). Crimes, harms and wrongs: On the principles of criminalization. Oxford: Hart Publishing.
Stuntz, W. (2002). Local policing after the terror. Yale Law Journal, 111(8), 2137–2194.
Tadros, V. (2008). Crimes and security. Modern Law Review, 71(6), 940–970.
Tadros, V., & Hodgson, J. (2009). How to make a terrorist out of nothing. Modern Law Review, 72(6), 984–998.
Tadros, V., & Tierney, S. (2004). The presumption of innocence and the Human Rights Act. Modern Law Review, 67, 402–434.
Tomkins, A. (2011). National security and the due process of law. Current Legal Problems, 64(1), 215–253.
Waldron, J. (2010). Torture, terror and trade-offs: Philosophy for the White House. Oxford: Oxford University Press.
Walen, A. (2011). Criminalizing statements of terrorist intent: How to understand the law governing terrorist threats, and why it should be used instead of long-term preventive detention. Journal of Criminal Law and Criminology, 101(3), 803–853.
Walker, C. (2007). Keeping control of terrorists without losing control of constitutionalism. Stanford Law Review, 59(5), 1395–1464.
Walker, C. (2009a). Blackstone’s guide to the anti-terrorism legislation. Oxford: Oxford University Press.
Walker, C. (2009b). Prosecuting terrorism: The Old Bailey versus Belmarsh. Amicus Curiae, 79, 21–25.
Zedner, L. (2003). The concept of security: An agenda for comparative analysis. Legal Studies, 23(1), 153–176.
Zedner, L. (2005). Securing liberty in the face of terror: Reflections from criminal justice. Journal of Law and Society, 32(4), 507–533.
Zedner, L. (2007a). Preventive justice or pre-punishment? The case of control orders. Current Legal Problems, 59, 174–203.
Zedner, L. (2007b). Seeking security by eroding rights: The side-stepping of due process. In B. Goold & L. Lazarus (Eds.), Security and human rights. Oxford: Hart Publishing.
Zedner, L. (2008). Terrorism, the ticking bomb, and criminal justice values. Criminal justice Matters, 73, 18–19.
Zedner, L. (2009). Fixing the future? The pre-emptive turn in criminal justice. In B. McSherry, A. Norrie, & S. Bronnit (Eds.), Regulating deviance: The redirection of criminalisation and the futures of criminal law. Oxford: Hart Publishing.
Zedner, L. (2011). Terrorism and counter terrorism: What is at risk? In L. Skinns, M. Scott, & T. Cox (Eds.), Risk (pp. 109–130). Cambridge: Cambridge University Press.
Acknowledgments
I am grateful to colleagues at the Scottish Centre for Crime and Justice Research, University of Glasgow; Department of Government, LSE; and Faculty of Law, University of Pennsylvania for their discussion of earlier versions of this article. I thank Andrew Ashworth, John Ip, Nicola Lacey, Ambrose Lee, Massimo Renzo, Adam Tomkins, and Patrick Tomlin for their insightful comments on an earlier draft; Daniel Alati for his research assistance; and the Arts and Humanities Research Council for the award of a grant for a three- year study of ‘Preventive Justice’ (ID: AH/H015655/1).
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Zedner, L. Terrorizing Criminal Law. Criminal Law, Philosophy 8, 99–121 (2014). https://doi.org/10.1007/s11572-012-9166-9
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11572-012-9166-9