Counter-terrorism, Constitutionalism and Miscarriages of Justice: A Festschrift for Professor Clive Walker 9781509915729, 9781509915750, 9781509915736

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COUNTER-TERRORISM, CONSTITUTIONALISM AND MISCARRIAGES OF JUSTICE The purpose of this book is to honour the influential and wide-ranging work of Professor Clive Walker. It explores Professor Walker’s influence from three perspectives. Firstly, it provides a historical reflection upon the development of the law and policy in relation to counter-terrorism and miscarriages of justice since the 1970s. This historical perspective, which is often overlooked, is particularly timely 17 years after 9/11 as trends become clearer and historical perspective even more valuable. So too with miscarriages of justice: while there was considerable public and political scrutiny following high-profile miscarriages such as the Birmingham Six, Guildford Four, and others, in the early 1990s, today there is much less scrutiny, despite significant concern relating to issues such as legal aid and access to justice increasing the potential (if not likelihood) for miscarriages to occur. By including a critical historical perspective, this book enables us to learn lessons from the past and to minimise contemporary risks of miscarriages of justice. Secondly, this book provides a critical analysis of the law and policy as it stands today, and its future trajectory. Applying Walker’s theoretical and analytical contributions to the field, the authors focus on pressing contemporary concerns, identifying lacunae where relevant, as well as the possible, probable and preferable future trends. Finally, the book celebrates and recognises the significant contributions by Walker, with each chapter built around one or more of Walker’s key works.

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Counter-terrorism, Constitutionalism and Miscarriages of Justice A Festschrift for Professor Clive Walker

Edited by

Genevieve Lennon Colin King and

Carole McCartney

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2019 Copyright © The editors and contributors severally 2019 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2019. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Walker, Clive (Professor), honouree.  |  Lennon, Genevieve, editor.  |  King, Colin (Colin Patrick), 1981- editor.  |  McCartney, Carole, editor. Title: Counter-terrorism, constitutionalism and miscarriages of justice : a festschrift for Professor Clive Walker / edited by Genevieve Lennon, Colin King and Carole McCartney. Description: Oxford, UK : Hart Publishing, 2019. Identifiers: LCCN 2018028226 (print)  |  LCCN 2018030720 (ebook)  |  ISBN 9781509915743 (Epub)  |  ISBN 9781509915729 (hardback : alk. paper) Subjects: LCSH: Terrorism—Prevention—Law and legislation.  |  LCGFT: Festschriften. Classification: LCC K5256 (ebook)  |  LCC K5256 .C68 2019 (print)  |  DDC 344.05/32517—dc23 LC record available at https://lccn.loc.gov/2018028226 ISBN: HB: 978-1-50991-572-9 ePDF: 978-1-50991-573-6 ePub: 978-1-50991-574-3 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

FOREWORD adam crawford and david wall At the 30th anniversary lecture for the Centre for Criminal Justice Studies in early 2017, Sir Keir Starmer MP said that his colleagues on both sides of government regard Professor Clive Walker QC as ‘the expert of experts’ on matters of counter-terrorism law, civil rights and miscarriages of justice. This view was shared by the distinguished participants of the festschrift for Clive held over the two days of 30 November and 1 December 2017 – and who would disagree? The many distinguished presenters and participants at that event and those who have contributed to this book illustrate Clive’s good standing in the academy, the law and the government. We were very honoured to be asked by the editors of Clive’s festshrift to write this foreword. However, as readers will notice we have not contributed chapters to the book and this is primarily because neither of us would claim to be an expert in Clive’s key research areas of counter-terrorism law and policy and miscarriages of justice; and certainly not of the calibre of those whose contributions make up this impressive collection of essays. Our contribution is therefore that of long-term colleagues, loyal disciples and occasional sparring partners. We leave it to others in this collection (better placed than ourselves) to highlight and engage with the significant contribution, impact and implications of Clive’s scholarship across his primary chosen fields of study and analysis. This foreword is therefore a little more personal. We would like to add some collegial reflections and comments. For in addition to being a beacon – shining light in dark places – in the eyes of the ­academy, the law and government, Clive remains to many also a cherished colleague and friend, including those who organised and attended the festschrift. We have both worked with and alongside Clive for over 25 years (albeit one of us did a five-year stretch in Durham – University that is); often following in Clive’s long intellectual shadow and occasionally trying to fill his well-worn and well-travelled boots. In essence, Clive brought us both to Leeds, employing us for slightly different purposes, at much the same time in 1992, for which we are immensely grateful. In the years that followed, it is fair to say, we collectively built what now stands as a great testimony to Clive’s foresight, intellectual philosophy and damn hard work – namely the Centre for Criminal Justice Studies (CCJS). In this adventure, with all its twists and undulations, we were definitely Clive’s foot soldiers. Both of us subsequently went on to become the Director of the CCJS (David between 2000 and 2005; Adam between 2005 and 2011), but we were

vi  Foreword merely holding tight to the wheel; maintaining the logistical direction set by our erstwhile helmsman and colleague, whose lodestar we dutifully followed. If you were (hypothetically) to chop Clive’s arm off, you would probably find the words University of Leeds written around the bone like a stick of Blackpool rock (plus ‘Hartlepool United’ in a smaller font). Born and bred in Hartlepool, Clive came to the University of Leeds to study law in 1972 and graduated with First class honours in 1975. He then trained and worked as a solicitor before moving to the University of Manchester to work on his PhD and also take up a law lectureship. He moved back to a lectureship in law at the University of Leeds – his Alma Mater – in 1983. At that time Leeds had a strong criminal law contingent which included amongst others Professor Brian Hogan QC, Peter Seago JP OBE, a lecturer and prominent local magistrate who later became head of the School of Law and strongly supported the creation of the CCJS in 1987, and Ian Brownlee who later joined the Crown Prosecution Service. One of the first of its kind, the Centre for Criminal Justice Studies gave Clive a focus for his research into counter-terrorism and human rights. He was, of course, its first director and one of his first major publications from the Centre was Justice in Error (1993), a book of commissioned chapters which he edited with his former student and then rising barrister Keir Starmer. He also brought funded research into the School of Law, still a novelty in those years and embraced socio-legal research in what was then a distinctly black-letter Law School. First, there was a study of pre-trial reviews and then a project on legal aid, and many more projects followed as the volume of staff increased. The MA in Criminal Justice Studies was designed and introduced in October 1993, the same year that Clive was conferred as Professor of Criminal Justice Studies. For the next three decades, the Centre grew in terms of research outputs, new degree programmes and staff. In 2001, the BA in Criminal Justice and Criminology was launched, which brought new students into the School of Law and also additional staff to support the increased teaching. Today, and still located in the School of Law – which Clive headed from 2000 to 2005 – the CCJS has over 20 teaching and research staff and a greater number of researchers and PhD students, some of which remain under Clive’s tutelage. It is now a vibrant and internationally regarded centre that has been instrumental in propelling the growing reputation of the School of Law to the high regard with which it is held. While the CCJS was largely set up to build upon the legacy of Professor Brian Hogan, it was forged in Clive’s distinctive mould. Hence, if you were (hypothetically) to slice the CCJS in two – or less crudely, to engage in advanced molecular forensics – you would no doubt find Clive’s DNA inscribed therein. In many senses, its core attributes reflect key characteristics of Clive’s own approach to his research, learning and scholarship. The following are but a few. An ambition to subordinate the machinations of law to the demands of justice. This pursuit is so evident throughout Clive’s work, most notably his calls to ­constitutionalise counter-terrorism law in the UK and in drawing attention to miscarriages of justice and the forces that permit instances of justice in error.

Foreword  vii Equally, this has been a recurring theme of CCJS research across the decades in the diverse fields of policing and criminal justice. A concern for the relevance of research and its application to the real world to effect change, improve understanding and address injustices. Long before research ‘impact’ became a mantra of government and university managers, Clive’s work and that of the CCJS was tied to its deep-rooted concern for societal influence and policy relevance. Engaging with professional practice to shape research questions, exchange knowledge, mobilise collective capabilities and generate new insights through co-production, were all grist to the mill. We may have given these practices new names in the passing years, but their essence was inscribed into the CCJS from the outset and embedded in formal practices through engagement with the CCJS Advisory Board, practitioner-focused conferences and wider public engagement. An eye for the international significance of knowledge and learning. Clive has always been a keen exponent of the international mission of research and teaching in universities, whether that entails attracting international undergraduates, postgraduates and PhD students or building international research networks and collaborations. It also attends to thinking through the international and comparative dimensions of particular fields of study. While crime and justice are often conceived in relation to nation states – as categories and symbols of statehood  – their understanding also demands a broader, international horizon and contextualisation. This internationalisation agenda has been an evolving dimension in the growth of the CCJS (which now boasts greater numbers of international colleagues, despite the precarity of Brexit). Consequently, the considerable number of international contributors to this festschrift is unsurprising not only because Clive enjoys the opportunities of travel that arise, but also because good research travels. An embracing of a pluralism of intellectual approaches, disciplines and ­methodologies – what Stuart Hall once referred to as ‘the eclecticism of theory and method’. While Clive is a lawyer by background and training, he was always open  to and embracing of the contribution and insights from other disciplines, methods and approaches. He (rightly) bristled at the idea of one dominant – or dominating – discourse, theory or perspective. There lies the road to injustices of diverse kinds and the subordination of knowledge to the exigencies of power. While he ranged in his own use of cross-disciplinary resources – politics, history and social theory were disciplinary places that he visited frequently – Clive was especially keen that a centre for the study of crime, law and justice, like the CCJS, should be peopled by scholars of difference rather than sameness. Hence, the CCJS as the first UK-based centre for criminal justice studies, as opposed to criminology, sought distinctly to bring together colleagues keen to study crime and criminal justice practices from various disciplinary and epistemological perspectives. To date, the CCJS has been a home to academic researchers with disciplinary backgrounds in history, political science, social policy, sociology, psychology, criminology, statistics and computer science, as well as (a few) legal

viii  Foreword scholars. Securing and maintaining such a mix within the context of a School of Law has been no mean feat. As a 1982 OECD report wryly noted: ‘communities have problems, universities have departments’. The CCJS was designed as an exception to this rule and its breadth and scope for interdisciplinarity still marks it as distinctive. The importance of normative principles in the face of political and managerial pressures and niceties. Constitutions and due process matter. They do so precisely because they are inscribed by and express commitment to deeply held principles. This theme runs throughout much of Clive’s work and informs the importance of articulating and reaffirming the normative girders that underpin an academic mission. The CCJS has been well served by its adherence to its own principles that have allowed colleagues (whoever happens to be at the helm) to navigate the flotsam and jetsam that abound across the choppy waters of higher education. Clive was always the first to remind colleagues of due process and constitutional principles before embarking on any hasty change to the administration or management of the CCJS or School of Law. This was done not simply in a traditional conservative way designed to hold back change, but rather to ensure that any change conformed with and adhered to cherished values and norms, lest they otherwise be incrementally eroded. The parallels with piecemeal securitisation through counter-terrorism laws were always striking. In sum, the CCJS is Clive – sutured into its physical, social and cultural environment, its day-to-day routines and its grand visions, as well as its existential wellbeing. Moreover, Clive the scholar and Clive the colleague have rarely parted company. He practised what he preached; or as the Americans would say ‘he walked the talk’. He may have been obdurate, stubborn and difficult, at times, and you always knew that you never got the last word, but decisions, outcomes and effects were always better for his interventions. The CCJS and School of Law (we) owe so much to his diligent, quiet and patient legacy. After all, Rome was not built in a day. Clive not only played an important role in both of our early careers, but he also played a similar role in the careers of many other colleagues and researchers, including the present CCJS Director Professor Louise Ellison. Many of these (once) early career academics and PhD students will remember receiving Clive’s detailed and incisive comments on their work – usually written in his distinctive hand, in fountain pen, and often reminding them of the golden rule of ‘six footnotes per page’. The seriousness and dedication with which Clive discharged his duties as PhD supervisor has been his hallmark and from which nearly 50 grateful individuals have benefited over the years. They have formed something of a diaspora of Walkerites, infused with a combination of intellectual curiosity, principle and rigour – all attributes that distinctly mark Clive’s work. It is a testament to his influence, authority and labours that many former PhD students returned to celebrate his career at his festschrift and/or have contributed to this collection of essays in his honour. This collection is well timed in that it follows

Foreword  ix his recent appointment as Queen’s Counsel and also as Emeritus Professor. But, of course, Clive has not let retirement get in the way of his mission in life – he is as busy as he ever was. Festschrifts are generally reserved for the most outstanding of scholars, and this one is definitely no exception. The pages that follow constitute a collection of essays written by an exceptional array of scholars and commentators whose work and lives Clive has touched in many and varied ways. The contributors include a stellar cast of those working in the fields of counter-terrorism and miscarriages of justice both in the UK and beyond. They comprise internationally renowned academics and leading practitioners; they also include a considerable number of people who Clive either directly supervised or mentored in some capacity at important stages in their own careers and intellectual development – ­particularly his former PhD students and including the three editors themselves. On behalf of all those who have been touched in some way by Clive’s oeuvres and legacy, we are grateful, first and most significantly, to the man himself, but also to the editors – Genevieve, Carole and Colin – for putting together this excellent festschrift collection. We hope that you – like us – enjoy and appreciate the full compendium as a small (but significant) testimony to and reflection upon a scholarly career rich in insight and inspiration as well as a little bit of perspiration.

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TABLE OF CONTENTS Foreword: A Tribute to Clive Walker���������������������������������������������������������������������������v Adam Crawford and David Wall List of Contributors��������������������������������������������������������������������������������������������������� xiii 1. Introduction������������������������������������������������������������������������������������������������������������1 Genevieve Lennon, Colin King and Carole McCartney PART I COUNTER-TERRORISM 2. The Constitutional Governance of Counter-Terrorism����������������������������������������9 Brice Dickson 3. Beyond the Ordinary: Criminal Law and Terrorism������������������������������������������27 Dermot Walsh 4. Terrorism and Counter-Terrorism in the UK: From Northern Irish Troubles to Global Islamist Jihad�������������������������������������������������������������������������45 Steven Greer 5. Strategies for Countering Terrorism: An Australian Perspective�����������������������63 Keiran Hardy and George Williams 6. Shades of Independent Review����������������������������������������������������������������������������81 David Anderson 7. The Use of Special Advocates in Countering Terrorism: Human Rights, Best Practice and Procedural Tradition���������������������������������������������������������������99 John Jackson 8. Lawyers, Military Commissions and the Rule of Law in Democratic States�������������������������������������������������������������������������������������������������������������������117 Fionnuala Ní Aoláin 9. Excluding Terrorists�������������������������������������������������������������������������������������������135 Jessie Blackbourn

xii  Table of Contents 10. Speaking of Terrorism and Terrorist Speech: Defining the Limits of Terrorist Speech Offences�����������������������������������������������������������������������������151 Anneke Petzsche and Manuel Cancio Meliá 11. All-Risks Counter-Terrorist Policing���������������������������������������������������������������167 Genevieve Lennon PART II MISCARRIAGES OF JUSTICE 12. Defining Miscarriages of Justice in the Context of Post-9/11 Counter-Terrorism�������������������������������������������������������������������������������������������187 Kent Roach 13. The Doctrine of Public Interest Immunity and Fair Trial Guarantees����������209 Simon McKay 14. The Forensic Science Paradox��������������������������������������������������������������������������227 Carole McCartney 15. Post-Conviction Review in England and Wales: Perpetuating and Rectifying Miscarriages of Justice�������������������������������������������������������������249 Stephanie Roberts 16. Justice Denied? Compensation for Miscarriages of Justice�����������������������������269 Hannah Quirk and Colin King 17. Revisiting Miscarriages of Justice: Innocence Projects, Review Commissions and Expert Evidence����������������������������������������������������������������������������������������287 Kathryn M Campbell PART III A RETROSPECTIVE 18. Living with Counter-Terrorism Laws and their Discontents����������������������������307 Clive Walker Index��������������������������������������������������������������������������������������������������������������������������327

LIST OF CONTRIBUTORS David Anderson QC practises from Brick Court Chambers in London. From 2011 to 2017 he was the UK’s Independent Reviewer of Terrorism Legislation. In June 2018, he was awarded a knighthood for services to National Security and to Civil Liberties and appointed to the House of Lords where he sits on the cross-benches as a working peer. Jessie Blackbourn is a Research Fellow in the Centre for Socio-Legal Studies at the University of Oxford, Socio-Legal Research Fellow at Wolfson College, and Honorary Fellow at the UWA Law School. Her research interests lie broadly in the field of anti-terrorism law with a particular focus on oversight and review. She is currently engaged in research which evaluates the effectiveness of institutional mechanisms for review of anti-terrorism legislation, with a particular interest in the role of offices of independent reviewers of terrorism legislation in Australia and the UK. Kathryn Campbell is an Associate Professor in the Department of Criminology at the University of Ottawa, with a background in criminology and law. She was a recipient of the European Institutes of Advanced Studies fellowship in 2016, at the Israel Institute of Advanced Studies, Hebrew University, Jerusalem. Kathryn is the author of Miscarriages of Justice in Canada: Causes, Response, Remedies (University of Toronto Press, 2018), as well as several articles and book chapters on evidentiary issues related to wrongful convictions. Kathryn is the faculty director of Innocence Ottawa, a pro bono, student run innocence project at the University of Ottawa. Manuel Cancio Meliá is full Professor of Criminal Law at the Universidad Autónoma de Madrid. Among his works, monographs on victims’ behaviour relevance in criminal law (which was his doctoral thesis, Conducta de la víctima e imputación objetiva, 1998, 2nd edn, 2001), on terrorism offences (Los delitos de terrorismo: estructura típica e injusto, 2010) and on the so-called ‘enemy criminal law’ (Derecho penal del enemigo, 2003, 2nd edn, 2006, together with G Jakobs), and his participation in several commentaries of the Spanish penal code are to be highlighted. Other texts (books, chapters, articles, case discussions, as an author and/or editor), regarding criminal law principles, criminal law legal dogmatics, comparative criminal law studies, European criminal law and several single offences (sexual crimes, terrorism, personal injuries, crimes against the environment, organised crime), have been published in Spain, Europe, most countries in Latin America, the United States and China.

xiv  List of Contributors Brice Dickson is Emeritus Professor of International and Comparative Law at Queen’s University Belfast. He served as the first Chief Commissioner of the Northern Ireland Human Rights Commission from 1999 to 2005. He currently serves as an independent member of the Northern Ireland Policing Board and of the Privacy Advisory Committee of Northern Ireland’s Department of Health. In recent years his publications have focused on judicial activism in the highest courts. He is the editor of Judicial Activism in Common Law Supreme Courts (Oxford University Press, 2007), co-editor of The Judicial House of Lords 1879–2009 (Oxford University Press, 2009), and author of The European Convention on Human Rights and the Conflict in Northern Ireland (Oxford University Press, 2010) and Human Rights and the United Kingdom Supreme Court (Oxford University Press, 2013). He is currently working on a study of the Supreme Court of Ireland. Steven Greer is Professor of Human Rights at the University of Bristol Law School. He studied law at the University of Oxford and sociology at the London School of Economics and has a PhD in law from Queen’s University of Belfast. He has taught at several UK universities, held visiting appointments in West Germany, Australia and France, and delivered guest lectures and academic papers all over the world including the Middle East, China and the US. He is Fellow of the Academy of Social Sciences and Fellow of the Royal Society of Arts, has acted as consultant/advisor to various organisations, and has published widely, particularly in the fields of criminal justice, human rights, and law and terrorism. His most recent book, co-authored by J Gerards and R Slowe, Human Rights in the ­Council of Europe and the European Union: Achievements, Trends and Challenges was published by Cambridge University Press in 2018. Keiran Hardy is a Lecturer in the School of Criminology and Criminal Justice at Griffith University and a Postdoctoral Research Fellow in the Griffith Criminology Institute. His current research project applies theories of crime prevention to countering violent extremism programmes across Europe and Scandinavia. His other research interests include cyber-terrorism, counter-insurgency and intelligence whistle-blowing. John Jackson is Professor of Comparative Criminal Law and Procedure at the University of Nottingham School of Law. He was previously Dean of the School of Law at University College Dublin, and before that he was a Professor of Public Law at Queen’s University Belfast. He is the author of a number of books, articles and research reports in the areas of criminal evidence and criminal justice, including (with Sean Doran), Judge without Jury: Diplock Trials in the Adversary System (Oxford University Press, 1995); (with Sarah Summers), The Internationalisation of Criminal Evidence (Cambridge University Press, 2012); and, most recently (with Sarah Summers), Obstacles to Fairness in Criminal Proceedings: Individual Rights and Institutional Forms (Hart Publishing, 2018).

List of Contributors  xv Colin King is a Reader in Law at the University of Sussex and co-founder of the Crime Research Centre. He was an Academic Fellow at the Honourable Society of the Inner Temple from 2014 to 2017. Colin is co-editor of The Palgrave Handbook of Criminal and Terrorism Financing Law (King, Walker and Gurulé, Palgrave, 2018) and Dirty Assets: Emerging Issues in the Regulation of Criminal and ­Terrorist Assets (King and Walker, Ashgate, 2014). He is currently conducting ­empirical research on proceeds of crime legislation as part of an AHRC Leadership Fellowship. He recently published a book on Negotiated Justice and Corporate Crime (King and Lord, Palgrave, 2018). Genevieve Lennon is a Senior Lecturer and Chancellor’s Fellow at the School of Law, University of Strathclyde. She completed her PhD under Clive Walker at the University of Leeds. Her main research areas encompass counter-­terrorism law and policy, in particular in relation to human rights, accountability and counter-terrorist policing, and she has also published on policing more generally. She is contributing co-editor of the Routledge Handbook of Law and Terrorism ­(Routledge, 2015) and is currently co-authoring a monograph, Protective Security Against Terrorism (Cambridge University Press). Carole McCartney is a Professor at the School of Law, Northumbria University. Previously Senior Lecturer in Criminal Law and Criminal Justice at the University of Leeds, and Bond University, Queensland. Carole has written on Australian justice, Innocence Projects, miscarriages of justice, policing cooperation, and DNA, forensic science and criminal justice more widely. She established an Innocence Project at the University of Leeds in 2005 and was project manager for the Nuffield Council on Bioethics report The Forensic Uses of Bio-information: Ethical Issues and the Nuffield Foundation project The Future of Forensic Bioinformation. She completed an EU Marie Curie international research fellowship (2009–12) on Forensic Identification Frontiers. She continues to work on projects around forensic science and miscarriages of justice, biometrics, and science and justice. She is convenor of the Research Interest Group on ‘Science and Justice’ at Northumbria University. Simon McKay is a civil liberties lawyer who has acted and continues to act in a large number of high-profile cases in the UK, including R v Clegg [1995] (British paratrooper accused of murder whilst on duty), the Porton Down Inquiry (death of a serviceman from Sarin poisoning at a defence human research establishment), the MPs’ expenses scandal, and the Supreme Court decision of R (BSkyB) v Metropolitan Police [2014] (secret hearings for purposes of obtaining production orders). He is a former legal adviser to the British government on national security related issues. He is author of Blackstone’s Guide to the Investigatory Powers Act 2016 (Oxford University Press, 2017), Covert Policing Law & Practice (2nd edn, Oxford University Press, 2015) and widely published in a number of peer-reviewed journals. Simon has co-written chapters for Investigating Terrorism (Wiley, 2015 with C Walker) and is a contributing author to the Handbook of Intelligence Law (Boorberg Press, with C Walker).

xvi  List of Contributors Fionnuala Ní Aoláin is Regents Professor and the Robina Chair in Law, Public Policy and Society at the University of Minnesota Law School. She is concurrently Professor of Law and Associate Director at Ulster University’s Transitional Justice Institute (Belfast). She was appointed United Nations Special Rapportuer on the Protection and Promotion of Human Rights while Countering Terrorism in 2017. Her book Law in Times of Crisis with Professor Oren Gross (Cambridge University Press, 2006) was awarded ASIL’s Certificate of Merit for creative scholarship (2007). She is co-author of On the Frontlines: Gender, War and the Post Conflict Process (Oxford University Press, 2011), and co-editor of the Oxford Handbook on Gender and Conflict (2017). Ní Aoláin was appointed by the UN SecretaryGeneral as Special Expert on promoting gender equality in times of conflict and peacemaking (2003). She has served as Expert to the ICC Trust Fund for Victims (2015), and Consultant to UN Women and the OHCHR on a study on Reparations for Conflict Related Sexual Violence (2013). She was nominated twice by the Irish government as judge to the European Court of Human Rights (2004 and 2007). She serves on the Open Society’s Women’s Program, the Board of the Center for Victims of Torture and the Board of the Georgetown Institute for Women, Peace and Security. Anneke Petzsche is a Senior Research Fellow and Lecturer at Humboldt-­ University, Berlin. She finished her PhD in 2013 on German, English and Spanish anti-­terrorism law for which she was awarded a scholarship from the­ Studienstiftung des Deutschen Volkes. During 2011, she undertook research visits at the University of Leeds and the Universidad Autónoma de Madrid. Her PhD is titled ‘Strafrecht und Terrorismusbekämpfung – Eine vergleichende Untersuchung der Bekämpfung terroristischer Vorbereitungshandlungen in ­ Deutschland, Großbritannien und Spanien’ and was published in 2013. She has since published various articles on the subject matter of terrorism in German and English. Together with Professor Heger, she hosted an international ‘trialogue on terrorism’ at Humboldt-University in January 2015 and will host another conference on ‘historical experiences and current challenges of terrorism’ in July 2018. Hannah Quirk is Reader in Law at King’s College London. Before that, she worked at the University of Manchester, the Legal Services Research Centre, the Criminal Cases Review Commission and the Innocence Project New Orleans. Her book, The Rise and Fall of the Right of Silence (Routledge) was published in 2016. She is a member of the editorial board of Legal Studies and the Criminal Law Review. She sits on the executive board of Justice, the University of Manchester’s Legal Advice Centre Advisory Board and is a director of South Manchester Credit Union. Kent Roach CM, FRSC is Professor of Law and Prichard-Wilson Chair of Law and Public Policy at the University of Toronto Faculty of Law. His 13 books include: Constitutional Remedies in Canada (winner of the Owen best book Prize); Due Process and Victims’ Rights (shortlisted for the Donner Prize); The Supreme Court on Trial (same); (with Robert J Sharpe) Brian Dickson: A Judge’s Journey (winner

List of Contributors  xvii of the Dafoe Prize); and The 9/11 Effect: Comparative Counter-Terrorism (winner of the Mundell Medal); and (with Craig Forcese) False Security: The Radicalization of Canadian Anti-Terrorism (winner of the Canadian Law and Society Association best book prize). He has edited the Criminal Law Quarterly since 1998. He has written on many aspects of criminal justice including wrongful convictions and counter-terrorism. He has appeared as counsel 10 times in the Supreme Court of Canada. He also served as research director for both the Goudge Inquiry on Forensic Pathology involved in wrongful convictions and the Commission of Inquiry into the 1985 Air India terrorist bombing. He was elected a Fellow of the Royal Society of Canada by his fellow academics in 2002; he was appointed a member of the Order of Canada in 2015, and he was awarded the Molson Prize in 2017 for his contributions to the social sciences and humanities. Stephanie Roberts is a Senior Lecturer in the School of Law at the University of Westminster where she teaches criminal law and criminal procedure and evidence. Her research interests are criminal appeals and miscarriages of justice and she has published widely on these topics as well as delivering numerous conference papers. She has worked as a consultant for JUSTICE on criminal appeals and she is currently on the Advisory Board of FACT (Falsely Accused Carers and Teachers organisation). She is currently working on an empirical study of procedural irregularity appeals. 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 and miscarriages of justice, with many published papers and books not only in the UK but also in several other jurisdictions. In 2003, he was a special adviser to the UK parliamentary select committee which scrutinised what became the Civil Contingencies Act 2004, from which experience he published The Civil Contingencies Act 2004: Risk, Resilience and the Law in the United Kingdom (Oxford University Press, 2006). His books on miscarriages of justice comprise two leading collections in collaboration with Keir Starmer: Justice in Error (Blackstone Press, 1993) and Miscarriages of Justice (Blackstone Press, 1999). His books on terrorism are also recognised and cited widely and range over the years from The Prevention of Terrorism in British Law (Manchester University Press, 1986) and (with Gerard Hogan) Political Violence and the Law in Ireland (Manchester University Press, 1989) to the more recent Terrorism and the Law (Oxford University Press, 2011), The Anti‐Terrorism Legislation, (3rd edn, Oxford University Press, 2014), and the Routledge Handbook of Law and Terrorism (Routledge, 2015). Current collaborations have also concentrated on the financing of terrorism, including, C King and C Walker (eds), Dirty Assets: Emerging Issues in the Regulation of Criminal and Terrorist Assets (Ashgate, 2014) and C King, C Walker and J Gurule (eds), Handbook of Criminal and Terrorism Financing Law (Palgrave Macmillan, 2018). He was appointed by the Home Office in

xviii  List of Contributors 2010 as Senior Adviser to the Independent Reviewer of Terrorism Legislation. He became a Queen’s Counsel (Hons) in 2016. Dermot Walsh is Professor of Law at the University of Kent (formerly at the University of Limerick). He was elected a Member of the Royal Irish Academy in 2011. He specialises in policing and criminal procedure and has published widely on the use and abuse of counter-terrorism legislation in Ireland (North and South). George Williams is the Dean, the Anthony Mason Professor, and a Scientia Professor at the University of New South Wales Faculty of Law. He has held an Australian Research Council Laureate Fellowship, appeared before the Australian High Court in many cases over the last two decades, and is a well-known media commentator. In 2011 he was made an Officer of the Order of Australia for distinguished service to the law.

1 Introduction genevieve lennon, colin king and carole mccartney As with all careers, there are highs and lows in academia. One undisputed ­highlight, however, is the festschrift. The Oxford English Dictionary (OED) defines it as ‘a collection of writings forming a volume presented to a scholar or savant on the occasion of his attaining a certain age or period in his career’.1 The OED illustrates its definition with a quote from Nature, which states that ­‘Festschriften are for men who have put their stamp on some branch of enquiry’.2 Professor Clive Walker has certainly made his mark, so it is fitting that we honour him with a ­festschrift to mark his 40 years as an academic. Although now officially in ‘retirement’, Clive’s productivity remains undiminished. As of 1 March 2018, he has authored or co-authored 18 books (one further is in press), 56 book chapters and 163 journal articles. Even allowing for a 40-year career, he averages almost six articles or chapters annually, plus a book biannually. The literal translation of festschrift – ‘festival writing’ – is also apt as this collection marks not only Clive’s substantial scholarly achievements, but also his personal impact on the contributors. This notion of ‘festival writing’ reflects too the ease with which this project came together, and the lively, stimulating and collegiate atmosphere of the symposium held in November 2017 at which the contributors presented their chapters. That event was enabled primarily by funding from the Modern Law Review Seminar Series, with additional support from the Honourable Society of the Inner Temple, and the University of Leeds Centre for Criminal Justice Studies and School of Law. This last patron is easily understood when reading of the major contribution that Clive has made to the University of Leeds, in particular to the Centre for Criminal Justice Studies, as discussed by his friends and colleagues in the Foreword. Aside from finding the right timing for this festschrift, given that Clive has yet to ‘retire’ in any meaningful sense, there was another challenge with this



1 Oxford 2 ibid.

English Dictionary, ‘Festschrift’, available at: www.oed.com/view/Entry/69578.

2  Genevieve Lennon, Colin King and Carole McCartney endeavour. Having ruled out a book spanning 60 chapters, how to sensibly narrow the field? For it is not simply the quantity of his output that made it challenging to focus this festschrift, there was also the breadth of publications. What ‘branch of enquiry’ is most apposite when Clive has put a stamp on so many? In deciding upon miscarriages of justice and counter-terrorism as our focal points, we ignore his scholarship on, for example: libel law, media law, and civil contingencies. Even within the fields of miscarriages of justice and counter-terrorism, there were still difficult choices to be made with respect to sub-topics within each, thus topics like cyber-terrorism and terrorism financing (both of which Clive has written on extensively) have not been included. Despite this, we hope this collection offers a fair appraisal of his scholarly impact to date. This impact is discussed in greater detail in each chapter of Parts I and II of this collection; and we leave it to our esteemed friends and colleagues to elucidate Clive’s contribution to their respective fields. As mentioned, Clive’s scholarly imprint is only one aspect of his career that we celebrate with this work. The second is the effect that Clive has had on the people he has worked with through the years. Every author approached, no matter how busy (and they most certainly are), replied instantly, saying, ‘yes, of course I would like to be involved’;3 many going on to comment on how much Clive had done for them. All the contributors to this festschrift have worked with Clive, many as co-authors and/or on edited collections, while for a number of contributors he was their PhD supervisor or examiner. We also consciously chose to ensure a mix of early career and established academics to reflect the fact that Clive consistently gives opportunities and significant support to those at the start of their academic careers. All the contributors were therefore delighted to have this opportunity to reflect upon Clive’s influential and authoritative body of work, considering the development of both law and policy in relation to counter-terrorism, constitutionalism and miscarriages of justice since the 1970s. Each chapter provides both a critical analysis of contemporary law and policy, and its future trajectory, building upon Clive’s theoretical and analytical work, and applying these to pressing contemporary concerns. Part I’s discussion of counter-terrorism opens by considering the legal superstructure in which counter-terrorist laws are situated, with, in chapter two, Dickson examining how constitutions could better regulate counter-terrorism laws and reduce the incidence of terrorism. Having outlined how constitutions across the world engage with counter-terrorism, he discusses what constitutions could do, arguing for improved socio-economic rights for groups, bolstered electoral provisions and explicit engagement with citizenship stripping powers. He calls for constitutional governance over the security services and for a deeper

3 A caveat – one individual was very sorry to decline due to our time frame and the fact that he would be involved in legal challenges against the travel ban introduced by the new US Administration.

Introduction  3 constitutional commitment to international humanitarian law and effective ­monitoring of human rights. Continuing the analysis of the structural impact of counter-terrorism, in chapter three Walsh provides a historical analysis of UK counter-terrorist laws to illustrate how they have moved beyond the ‘ordinary’. He focuses on the definition of terrorism; membership and related offences; support and encouragement offences and the offence of withholding information; and precursor offences. Walsh concludes that their deviations in relation to, for example, the principle of legal certainty present a significant challenge to the rule of law. Responses to terrorism are also explored further in chapter four, where Greer contrasts and compares the ‘Troubles-based’ and ‘Jihadi-based’ types of terrorism within the UK. He concludes that while differences and similarities are evident across the board, differences predominant in terms of their respective sociopolitical backgrounds, with counter-terrorist law and policy presenting a complex picture of similitude and contrast. Reflecting the international and comparative outlook adopted in Clive Walker’s research, chapter five engages with responses in the Australian context. Hardy and Williams examine whether Australian counter-terrorist strategies are rational, effective and protect individual rights. They detail the four periods of Australian counter-terrorist strategy since 9/11, concluding the legislation falls short in each category, being politicised, and focused on short- rather than long-term goals in addition to unnecessarily undermining core rights. Given the impact of counter-terrorism laws and strategies, an important question is accountability and independent review. As Senior Adviser to the Independent Reviewer of Terrorism Legislation (as well as being the author of many submissions to government consultations), Clive has provided expert advice, commented on drafts and penned appendices to the Reviewer’s Reports. In chapter six, then, Anderson reflects upon his experiences during his second term as the Independent Reviewer, providing insight into the multiple channels of influence and complex networks (including the media, parliamentarians, judges and stakeholders) required to turn recommendations into action. He details the evolution of the role of Independent Reviewer and discusses his annual and oneoff reports, including Citizenship removal resulting in statelessness and A Question of Trust. This book then moves on to consider specific aspects of counter-terrorism laws and responses, specifically the use of special advocates, the right of access to counsel, exclusion of terrorists, counter-terrorism speeches, and all-risks p ­ olicing. In chapter seven, Jackson considers the ever expanding role of the Special Advocate within counter-terrorism. Drawing upon qualitative interviews with UK special advocates and fieldwork in other jurisdictions, he discusses their evolution as ‘creatures of human rights’, and how they have evolved through transnational ‘best practice’. He argues that there is a role for special advocates, particularly in ex parte applications (for example, in relation to surveillance warrants). However, when a special advocate acts for a defendant who has been deprived of their rights,

4  Genevieve Lennon, Colin King and Carole McCartney their role detrimentally impacts upon the adversarial system, raising the question of whether the damage is worthwhile. Difficulties in how counter-terrorism laws and strategies impact upon the rights of individuals are picked up again in chapter eight, where Ní Aoláin examines counter-terrorist trial and detention, considering why states retain certain elements of due process while discarding others. She focuses on the right of access to counsel, in particular within ‘exceptional’ or military courts. She concludes with a fascinating case study of the role of defence lawyers in Guantanamo Bay, based in part on her interviews with Guantanamo Bay military lawyers in her role as UN Special Rapporteur for Human Rights While Countering Terrorism. The impact of exclusion policies on the rights of terrorists and terrorist suspects, and the effectiveness of the policies themselves, is the focus of chapter nine in which Blackbourn assesses the means used to exclude terrorists from the UK or parts thereof, detailing the development of exclusion policies since 1974. She criticises the legal powers including on the basis that they have failed to prevent terrorism, that they have been misused by targeting extremists, and that they are not used as a last resort. She concludes by outlining potential future trajectories, noting that although the powers are rarely used it seems unlikely that they will be repealed any time soon. In chapter ten, Petzsche and Cancio Meliá examine counter-terrorist speech, focusing on offences relating to material support, preparatory acts of terrorism, and glorification or apology in Germany, Spain and the UK. They are critical of the precursor nature of many of these offences and for their excessive breadth, which they view as confounding categories of terrorist speech (which should be ­criminalised) with speaking of terrorism (which should not). They conclude by calling for more restrained laws, including a greater causal nexus to a terrorist act. Part I concludes by looking at the impact of all-risks counter-terrorist policing powers, on individual rights and considering whether they adhere to constitutional norms. In this regard, in chapter eleven Lennon examines the historical and contemporary application of all-risks counter-terrorist policing powers in the UK, France and the United States. She concludes that the powers continue to carry significant costs that have not been adequately contained and that these issues are particularly pressing in light of the most recent wave of terrorist attacks which lend themselves to the justificatory narrative that underpins all-risks powers. In Part II, the focus turns to miscarriages of justice, albeit there is an evident overlap with issues related to terrorism. In the first chapter in this Part ­(chapter  twelve), Roach considers the meaning of ‘miscarriage of justice’ in the context of terrorism as defined, and counteracted, post 9/11. Roach demonstrates how Walker’s crucial and critical rights-based definition of ‘miscarriage of justice’ has become more apposite than ever, particularly in the context of how domestic and international efforts to deal with the terrorist ‘threat’ have developed. Often, such efforts can be specific to terrorist suspects, but many special measures taken by states to prevent, and punish, terrorist offences can also spill over into ­‘ordinary’ criminal trials. Roach interrogates the fact that miscarriages of justice

Introduction  5 were historically closely linked to terrorist trials, yet appear not to be coming to light since 9/11, questioning whether the system has now drawn counter-­terrorism laws so broadly that wrongful convictions under a conventional conception may not be occurring, but that Walker’s rights-based miscarriages of justice must still be considered prevalent. One area where we have witnessed the migration of legal concepts from other areas of law (in this instance, specifically civil justice) is the use of Public Interest Immunity procedures (PII) to prevent the disclosure of evidence to the defence. This PII doctrine, and its diminishment of the rights of the accused, is discussed in detail by McKay in chapter thirteen. The use of PII constitutes a significant threat to fair trials and justice, and risks the creation of miscarriages of justice. As McKay details, the use of PII may be defeating fair trial safeguards and represents a significant threat to defendants and their capacity to challenge ‘secret’ evidence. In such circumstances, miscarriages of justice may prove unavoidable, yet remain undetected and falling outside normal appellate processes. Miscarriages of justice are also often linked to the use, and abuse, of forensic science. However, as McCartney considers in chapter fourteen, the link between miscarriages of justice and forensic science is complex and forensic science has a paradoxical role in the criminal justice system. Reform attempts need to understand this ‘forensic paradox’ if the utility of forensic techniques is to be maximised and future wrongful convictions prevented. She concludes that scholars should also revisit Walker’s broad definition of miscarriages of justice and consider the role that forensic science may have in wider abuses of human rights. The correction of miscarriages of justice that (may) have occurred is the focus of Roberts in chapter fifteen, in which she examines the creation and working of both the Court of Appeal (Criminal Division) and the Criminal Cases Review Commission (CCRC). Both of these bodies were created in the wake of significant public disquiet about wrongful convictions, and they have both since proven controversial in their approach to miscarriages of justice. Indeed, their critics continue to bemoan their lack of success in overturning apparent injustices. However, Roberts points out that the scholarly debate over what constitutes a ‘miscarriage of justice’ is now rarely replicated in the public discourse of these bodies, and while the CCRC remains beholden to the Court of Appeal ‘safety test’, debate over whether ‘innocence’ or due process are paramount will continue to be ‘academic’. Definitions of miscarriages of justice have come to the fore, however, in matters of compensation post-exoneration. As Quirk and King detail in chapter sixteen, the matter of financially compensating those individuals who have won their appeals at the Court of Appeal has demanded that both the courts and government consider what a miscarriage of justice is in order to decide on eligibility. However, as these authors point out, the definition now used in compensation decisions departs significantly from the test applied by the Court of Appeal in deciding whether or not to overturn a conviction. In order to be entitled to compensation, it must now be established beyond reasonable doubt that the person did not commit

6  Genevieve Lennon, Colin King and Carole McCartney the offence in question. This not only creates a disjuncture between the Court of Appeal test for a miscarriage of justice and the test applied for compensation decisions, it also limits the ability of exonerees to ever qualify for compensation except in the most extreme circumstances. To conclude Part II, Campbell (chapter seventeen) considers the international picture of miscarriages of justice, both in the literature and in more practical terms. Comparing the rise of ‘innocence projects’ in the US and UK as a response to miscarriages of justice, she looks again at Walker’s definition and the contrast between his broad conception of rights-based injustice and the narrow focus of much ‘wrongful convictions’ literature, and resulting practical responses, driven largely by the US ‘innocence movement’. She also considers the scope of review commissions, through the lens of a possible Canadian CCRC, before looking more closely at Canadian examples of high-profile wrongful convictions, again with their British equivalents, around forensic pathology and the reforms demanded by a series of high-profile cases of egregious injustice involving pathologists both in Canada and the UK. Rounding out this festschrift, Part III consists of a chapter by Clive Walker himself. This chapter is based on the keynote lecture given at the November 2017 conference dedicated to his work. In this chapter, Clive considers how best to structure anti-terrorist law, reflecting upon the four options he proposed in his 1996 article ‘Anti-terrorism Laws for the Future’ and whether his preferred choice – ‘handle with special care legislation’ has stood the test of time.4 His survey of executive, legislative and judicial performance over the past two decades or so highlights both ideals and delinquencies, but far more of the former than latter. Unsurprisingly, Clive holds to the two pillars of constitutionalism and criminalisation as the appropriate basis for anti-terrorist law. In reviewing his earlier proposals and how the law has been implemented since, he highlights how failure to adhere to these two ‘ideals’ creates discontents, centred around intrusions into liberties and freedoms justified in the name of security. He examines the cause and impact of three discontents: state exaggeration and over use; collective discontents; and individual discontents. After four decades of researching and writing in this area, he ultimately concludes that while significant challenges persist and we will continue to have to live with counter-terrorism and its discontents, if we persevere with ‘handle with special care legislation’ based on the ideals of constitutionalism and criminalisation our efforts may not be futile.



4 C

Walker, ‘Anti-terrorism Laws for the Future’ (1996) 146 New Law Journal 586–88, 657–58.

part i Counter-Terrorism

8 

2 The Constitutional Governance of Counter-Terrorism brice dickson Introduction The aim of this contribution to the marking of Clive Walker’s inestimable work in the field of counter-terrorism is to consider what more could be done at the constitutional level to regulate counter-terrorism. After summarising the status quo, the chapter looks first at what constitutions could do to reduce the incidence of terrorism, then at what they could do to ensure that state security services and law enforcement bodies are held to account for the counter-terrorism operations they engage in, and finally at how constitutions could guarantee the protection of fundamental human rights during the implementation of counter-terrorism measures. The overall message is twofold. It suggests that by giving the phenomena of terrorism and counter-terrorism greater prominence constitutions can facilitate more moderate and consensus driven debate over what is and is not acceptable in a modern liberal democracy when attempts are made to eliminate terrorism. It also proposes that the strategies which need to be adopted in the context of counterterrorism are not dissimilar from those which need to be adopted regarding other twenty-first century scourges. Those strategies must centre around international collaboration and ensuring that national constitutions pay much more heed to international standards than has been the tradition to date.

I.  The Status Quo This is not the place to bemoan the fact that there is no internationally agreed ­definition of terrorism. For present purposes it is enough to say that at both national and international levels almost all definitions view the core element of terrorism as being the use of violence for political ends.1 The primary problem 1 See B Saul, ‘Terrorism as a Legal Concept’ in G Lennon and C Walker (eds), The Routledge Handbook of Law and Terrorism (London, Routledge, 2015).

10  Brice Dickson with this view is that when a state seeks to combat such violence it must itself sometimes use violence for political ends. Even if state violence is used by way of defence against attacks on key state institutions or to protect residents who are under imminent risk of loss of life, resort to it can inevitably lead to charges of hypocrisy and, in some people’s eyes, to a legitimation of the use of violence by non-state actors. Weber’s assertion that a state is a human community which successfully claims a monopoly on the legitimate use of physical force within a given territory2 is a truism which is all too apparent if one examines the history of independent states in the world today, the majority of which have gained their current status by overcoming a previous power-holder through the use of force. That they want to maintain that monopoly on the legitimate use of force in order to counter those who seek to undermine it through violence is understandable and, on many occasions, laudable. The challenge is how to regulate state use of violence in ways which do not make the state’s counter-terrorism task too difficult or the work of terrorists too easy. In addition, the state needs to avoid actions which have the indirect effect of helping terrorists to highlight their supposed grievances – the oppression of minorities, restrictions on freedoms and political marginalisation. National constitutions frequently contain provisions recognising the state’s official forces of law and order, but they do not often have provisions explicitly outlawing the use of violence for political ends by non-state actors. For ­example, Article 1(8) of the US Constitution of 1789 empowers the US Congress ‘to  make rules for the government and regulation of the land and naval forces’ and Article 4(4) says that the United States shall, on the application of a state’s legislature (or executive when the legislature cannot be convened), protect that state against domestic (meaning internal) violence. This is the only occurrence of the word ‘violence’ within the US Constitution. Infamously, however, the Second Amendment to the Constitution, agreed in 1791, provides that ‘A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed’. Despite the specific contextual background to this provision,3 in modern times it has been elevated by the US Supreme Court to the status of a basic human right comparable to those recognised in the UN’s Universal Declaration of 1948.4 The US Constitution otherwise contributes to counter-terrorism by implicitly permitting the President to issue Executive Orders: just as Article 1(1) says that ‘all legislative powers herein granted shall be vested in a Congress of the United States’, so Article 2(1) says that the executive power shall be vested in the President. It is mostly because Article 2(1) does not limit the President’s executive power to that granted by the Constitution that the exact scope of the power remains unclear. 2 M Weber, Politics as a Vocation (New York, Oxford University Press, 1946; originally published 1919) 77–78. 3 D Kates, ‘Handgun Prohibition and the Original Meaning of the Second Amendment’ (1983) 82 Michigan Law Review 204. 4 See, in particular, District of Columbia v Heller 554 US 570 (2008).

Constitutions and Counter-Terrorism  11 Two further features of the US Constitution, which are also common in many other national constitutions, are that it does not expressly prohibit the use of torture and it does not prohibit Congress from passing laws which contravene international human rights law. The former feature was exploited by President George W Bush, whose administration was able to use techniques such as waterboarding without the need for any Executive Order expressly authorising it.5 Even when the President got around to issuing an Executive Order on interrogation techniques he left room for the use of techniques such as sleep deprivation.6 President Obama issued an Executive Order repealing President Bush’s,7 but President Trump has let it be known that he wants to restore the Bush Order or something like it.8 A similar story can be told in relation to the phenomenon of extraordinary rendition and the establishment of ‘black sites’ outside the US.9 The US Constitution’s failure to recognise international human rights law means that Congress can pass laws such as the National Emergencies Act 1974,10 which permits the President to declare an emergency and activate specified emergency provisions so long as they are notified to Congress. Emergencies last for a year unless Congress resolves to terminate them earlier or to prolong them. As of December 2017, there were no fewer than 28 national emergencies extant in the US,11 two of which were declared in the aftermath of the 9/11 terrorist attacks.12 On 14 September 2001 the US Congress agreed a Joint Resolution known as the Authorization for Use of Military Force, which has the status of a public law. It allows the President to ‘use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001’.13 However, the US Supreme Court subsequently held in Hamdan v Rumsfeld that military courts established in Guantanamo Bay without congressional approval were unconstitutional because they violated the Geneva Conventions on the Laws of War, which the Court said were part of the US Uniform Code of Military Justice.14 5 See D Cole (ed), The Torture Memos: Rationalizing the Unthinkable (New York, The New Press, 2009). 6 Executive Order 13440 of 20 July 2007. 7 Executive Order 13491 of 22 January 2009. 8 Draft Executive Order, January 2017, available at: assets.documentcloud.org/documents/3412672/ Trump-draft-executive-order-on-detention-and.pdf. 9 D Forsythe, The Politics of Prisoner Abuse: The United States and Enemy Prisoners after 9/11 (Cambridge, Cambridge University Press, 2011). 10 50 USC 1601 et seq. 11 For a list see Ryan Struyk, ‘Here are the 28 active national emergencies. Trump won’t be adding the Opioid crisis to the list’ CNN Politics (15 August 2017), available at: edition.cnn.com/2017/08/12/ politics/national-emergencies-trump-opioid/index.html. As many as 21 of the emergencies relate to sanctions imposed on foreign countries. 12 Declaration of National Emergency by Reason of Certain Terrorist Attacks: georgewbushwhitehouse.archives.gov/news/releases/2001/09/20010914-4.html; Blocking Property and Prohibiting Transactions with Persons who Commit, Threaten to Commit, or Support Terrorism: www.treasury. gov/resource-center/sanctions/Documents/13224.pdf. 13 s 2(a). 14 548 US 557 (2006).

12  Brice Dickson The two temporary Executive Orders issued by President Trump in early 2017, banning entry into the US of foreign nationals from specified countries,15 were not issued under emergency legislation but under the President’s powers conferred by the Constitution and by Acts of Congress dealing with immigration. The first Order was struck down by federal judges but its replacement was upheld by the Supreme Court.16 In December 2017 the Supreme Court allowed a third, permanent, version of the travel ban to remain in place pending further appeals before lower courts17 and in January 2018 it announced that it would hear arguments on the third ban in April, meaning that a decision can be expected before the end of June.18 The third ban affects citizens from North Korea and Venezuela as well as six predominantly Muslim countries.19 The overall conclusion to be drawn from the current use of constitutionalism in this sphere in the US is that there are significant gaps in the governance arrangements. It is sometimes argued that the approach of European countries is more defensible,20 partly because of the human rights framework derived from general principles of EU law and the European Convention on Human Rights (ECHR). The UK, for example, allows for declarations of emergency, but the current statutory system has been roundly criticised by Walker, who describes Part II of the Civil Contingencies Act 2004 as ‘an irrelevance – it has become little more than a symbolic assertion of government power’.21 The Act defines an emergency as an event or situation threatening serious damage to human welfare or the environment in any part of the UK, or as war or terrorism threatening serious damage to the security of the UK.22 Subsequent sections confer regulatory power on senior ministers to take various actions to deal with the emergency, but section 23 sets some restrictions on what can be done, including prohibiting any attempt to amend the Human Rights Act 1998.23 Countries such as Spain and France provide for emergencies in their constitutions but also in their ‘ordinary’ laws. In Spain, section 116(3) of the 1978 Constitution provides that a state of emergency can be proclaimed by the

15 Executive Order 13769 of 27 January 2017 and Executive Order 13780 of 16 March 2017. 16 See Mark Sherman, ‘US Supreme Court allows Donald Trump to uphold “Muslim travel ban” restriction on refugees’ The Independent (13 September 2017). 17 See Adam Liptak, ‘Supreme Court Allows Trump Travel Ban to Take Effect’ The New York Times (4 December 2017). 18 SM, ‘Donald Trump’s travel ban heads back to the Supreme Court’ The Economist (23 January 2018). The 4th and 9th Circuit Courts of Appeals have already condemned the third ban because it mainly targets Muslims. 19 Namely Iran, Libya, Syria, Yemen, Somalia and Chad. 20 See, eg, Cian Murphy, ‘The Constitution of EU Counter-Terrorism Law’, 16 July 2012, available at: www.ejiltalk.org/the-constitution-of-eu-counter-terrorism-law. 21 C Walker, ‘The Governance of Emergency Arrangements’ (2014) 18 International Journal of Human Rights 211, 223. 22 Civil Contingencies Act 2004, s 19(1). 23 See, generally, C Walker and J Broderick, The Civil Contingencies Act 2004: Risk, Resilience and the Law (Oxford, Oxford University Press, 2006) ch 7.

Constitutions and Counter-Terrorism  13 government after prior authorisation by Parliament. It can initially last for up to 30 days but can be extended for a further 30 days. Law 4/1981 provides that an emergency can be declared when the free exercise of rights and freedoms of citizens, the normal functioning of democratic institutions, the public services essential to the community, or any other aspect of public order is so seriously altered that the ordinary exercise of powers is insufficient to maintain it.

To date no such declaration seems to have been issued, not even after the 2004 terrorist attack on a train in Madrid, which killed 192 people. In France an Act of Parliament dating from 1955 allows the President to declare an emergency lasting up to 12 days but which can be extended by Parliament for set periods, in practice three or six months.24 This was the route chosen by President Hollande in the wake of terrorist attacks in Paris in November 2015.25 The initial declaration was extended five times26 and finally expired only on 1 November 2017.27 Measures taken under the emergency have been reviewed on five occasions by the Conseil constitutionnel to check that they are suitable, necessary and proportionate.28 The 1955 Act requires there to be either imminent danger resulting from serious attacks on public order or from events which are serious enough to amount to ‘a public calamity’. An alternative course of action is available under Article 16 of France’s 1958 Constitution, which permits the President to take measures when the institutions of the Republic, the independence of the nation, the integrity of its territory, or the fulfilment of its international commitments are under grave and immediate threat and when the proper functioning of the constitutional governmental authorities is interrupted.

So far Article 16 has been invoked only once, in response to a coup attempt by army generals in Algeria in 1961. The 1937 Constitution of Ireland does not foresee declarations of emergency as such but Article 28.3.3 allows the national Parliament to enact any law it wishes ‘if it is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion’. Such laws are immune

24 Loi no 55-385 du 3 avril 1955 relative à l’état d’urgence. 25 See ‘French President declares state of emergency following Paris shootings’ The Telegraph (14  November 2015); BBC News, ‘Paris attacks: “France will destroy IS” – Hollande’ (16 November 2015). 26 See, eg, Adam Withnall, ‘Nice attack: Hollande extends France’s state of emergency after Bastille Day massacre’ The Independent (15 July 2016). 27 Loi no 2017-1154 du 11 juillet 2017. The same power was used by President Chirac following serious civil unrest in 2005. See M Landler, ‘France Declares State of Emergency to Curb Crisis’ New York Times (8 November 2015). 28 Corinne Luquiens et al, ‘Developments in French Constitutional Law: The Year 2016 in Review’ (I-CONnect Blog, 11 November 2017), available at: www.iconnectblog.com/2017/11/ developments-in-french-constitutional-law-the-year-2016-in-review.

14  Brice Dickson from being declared invalid under the Constitution, with the exception of any law imposing the death penalty. Following an amendment to Article 28 in 1939, the provision was invoked during the Second World War, even though Ireland remained neutral during that conflict. The emergency was not formally brought to an end by a resolution of the Dáil and Senate until 1976, but on that day it was replaced by another declaration prompted by the civil unrest in Northern Ireland. That second declaration was not declared to be over until 1995,29 a step which removed the immunity from constitutional challenge. This did not, however, affect the validity of the Offences Against the State Acts 1939–85 (now 1939–98), nor of the Special Criminal Court established in accordance with that legislation.30 As recently as November 2017, in a non-terrorist case, the High Court of Ireland declared a provision in the Offences Against the State (Amendment) Act 1998 to be unconstitutional because it breached a person’s right to remain silent when being questioned by the police.31 The UK, Spain, France and Ireland are all countries which have to comply with the ECHR, but very few applications brought to the European Court of Human Rights have successfully called into question a constitutional or legislative provision in the counter-terrorism field. In two judgments legislation introduced in connection with the ‘Troubles’ in Ireland were held to violate Articles 5 and 6 of the ECHR,32 but otherwise international human rights law has happily tolerated the constitutional governance arrangements in place. Of course, Article 15 of the ECHR permits Member States of the Council of Europe to derogate from certain rights during emergencies ‘threatening the life of the nation’. To date the European Court has not expressly declared that an emergency declared by a Member State did not qualify as such for ECHR purposes, though it has held that a declaration did not extend to certain parts of the Member State in question or did not justify the taking of particular measures.33 Whether it is good practice to devise constitutional provisions allowing for ‘emergency’ laws to be introduced to deal with terrorist attacks remains a moot point. On balance, I would submit that it is not desirable. A declaration can be used by governments for propaganda purposes, to create the illusion that people

29 See Dáil Éireann Debate, Cessation of State of Emergency: Motion, vol 448, no 6, col 1538, 7 February 1995. 30 Under the Offences Against the State Act 1939, s 35, which requires the government to proclaim that ‘the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order’. The Special Criminal Court currently operates under a proclamation issued on 26 May 1972: see Offences Against the State (Scheduled Offences) Order 1972 (SI 142). 31 s 9(1)(a); see Sweeney v Ireland [2017] IEHC 702. 32 Brogan v UK (1989) 11 EHRR 117 (concerning detention periods under the Prevention of Terrorism (Temporary Provisions) Act 1984) and Heaney and McGuinness v Ireland (2001) 33 EHRR 12 (concerning the duty of suspects to provide information to the police under the Offences Against the State Act 1939, s 52). 33 See the summary of relevant European Court decisions in its Factsheet, Derogation in Time of Emergency (November 2017), in particular Sakik v Turkey (1998) 26 EHRR 662 and Aksoy v Turkey (1997) 23 EHRR 553.

Constitutions and Counter-Terrorism  15 will be safer as a result of the ensuing emergency measures. It may also risk giving security and law enforcement services carte blanche to significantly interfere with the fundamental rights of a large number of entirely innocent people for a lengthy period. A declaration may therefore provoke further unrest and be ­counterproductive. In addition, it is extremely difficult to find a form of words which allows for a situation to be genuinely defined as an emergency. A better model is to have a set of counter-terrorism powers permanently on the statute book, ready to be exercised in accordance with strict preconditions and accountability mechanisms as and when the need arises.34

II.  How Constitutions Might Reduce Terrorism Turning to what measures constitutions could contain which would help to reduce terrorism – and therefore the need for counter-terrorism – there are perhaps five types of provision which might be envisaged. They are socio-economic provisions, equality provisions, access to justice provisions, nationality provisions and electoral provisions. Countering terrorism by reducing social and economic dissatisfaction within society makes eminent sense, particularly so as regards ‘home-grown’ terrorism, where the aim of the terrorists is to force the government to alleviate grievances experienced by people within their own country. Perpetrators of terrorism in South  Africa, Northern Ireland and Columbia have justified it by pointing to various injustices they wanted the governments to correct. Opinions reasonably differ over which of the actions taken by those pro-violence groups were genuinely explicable because of governmental refusal to change relevant policies. Most would probably agree that violence used to undermine apartheid in South Africa was more ‘worthy’ than those which motivated the IRA in Northern Ireland or the FARC in Columbia, but even in relation to South Africa many would differentiate between violence in the form of a bomb attack on a state-owned power station and violence in the form of placing a burning tyre round the neck of an informant. Violence is often used before it can reasonably be judged to be a last resort. There are lessons to be learned by separatists, surely, from the fact that within the UK and Spain, the regions of Scotland and Catalonia are each closer to achieving a breakaway from their respective larger states than either Northern Ireland or the Basque country, even though in Scotland and Catalonia violence has not recently been a feature of the struggle for independence while in Northern Ireland and the Basque country thousands have died. This is not to deny that the longer grievances are left to fester and the more unwilling governments are to negotiate remedies, the more likely it is that people



34 See

further ch 18 (Walker) in this collection.

16  Brice Dickson will feel driven to using violence to achieve political change.35 This means that constitutions should not just protect the civil, political, social, economic and cultural rights of individuals but also give meaningful recognition to the interests of various groups within society, especially if what links the members of those groups are factors such as ethnicity, religion, language or national allegiance. In this regard nations need to go beyond where international human rights law has got to, for it is widely accepted that the post-Second World War settlement was a great achievement as far as individuals’ rights are concerned but much less so as regards the rights of disaffected groups.36 Constitutions could also make better use of directive principles of social policy.37 In tandem with the protection of socio-economic rights constitutions need to expressly promote and safeguard the values of equality, fairness and respect. People must be reasonably confident that a non-violent solution to their complaints can be negotiated through democratic processes. This in turn requires the constitution to exalt the rule of law, with all that that means in terms of transparency, accountability and access to justice. No single person or group should be left in a condition where they cannot find a legitimate way to air their dissatisfaction with how they are being treated or how society is organised. There must be extensive opportunities for freedom of speech, assembly and association, even if the views expressed are unpalatable to a majority of the population. Just as sunlight can be the best disinfectant, so sound can be the best deodorant. Constitutions often contain provisions on nationality and/or citizenship, with many of them setting out how those statuses can be denied or removed. Rarely, if at all, is specific reference made to denial or removal of citizenship on the grounds of alleged involvement in terrorism, but it would surely be reasonable to permit such provisions provided that the citizenship is one that was previously requested and bestowed, that its removal would not breach the individual’s right to a private and family life and that the individual has an additional nationality which would avoid him or her from becoming stateless.38 It would be inappropriate for a constitution to represent citizenship as a reward rather than as a right, but citizenship could be conferred, and with it the right to enter and leave the country at will, subject to the condition that the person does not take up arms against the country which is bestowing that privilege.

35 See, generally, M O’Rawe, PD Silk and B Spalek, ‘The Role of Communities and Police in Preventing Ideological Violence: Considering the Literature, Policies, and Potential’ in PD Silk, B Spalek and M O’Rawe (eds), Preventing Ideological Violence (Basingstoke, Palgrave Macmillan, 2013). 36 Notoriously, Art 27 of the International Covenant on Civil and Political Rights of 1966 is the treaty’s only provision recognising group rights. It provides that persons belonging to ethnic, religious or linguistic minorities must not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. 37 L Weis, ‘Constitutional Directive Principles’ (2017) 37 Oxford Journal of Legal Studies 916. 38 See further ch 9 (Blackbourn) in this collection.

Constitutions and Counter-Terrorism  17 Constitutions could require domestic laws to be enacted criminalising the use of violence for political ends in other countries, thereby opening up the possibility of prosecuting the users of such violence when they return to their home c­ ountry. There is a case to be made, as well, for limiting resort to the ‘political offence’ exception in national extradition laws, at least where the offence in question has involved the use of serious violence. International refugee law already allows refuge to be denied to applicants, even though they have been persecuted, if they have committed a serious ‘non-political’ crime outside the country of refuge: this gives the requested state some discretion to decide whether the alleged offence, given its horrendous consequences, really deserves the label ‘political’.39 Again, if states are understandably reluctant to extradite violent individuals to countries where they might be executed or tortured, the constitution should allow national courts to try and punish those individuals for the politically motivated violence alleged to have been used abroad even if they are not now in their home country.40 Constitutions could also use electoral law to help prevent terrorism. They could require people who wish to stand for election to formally declare their abhorrence of the use of violence for the purpose of encouraging a change to government policy. It may even be acceptable for constitutions to deny the right to vote to persons who have been convicted of the use of violence for political ends, because they have in effect committed a crime against democracy by doing so. On the other hand, denying the right to vote could be something of an own goal in this context, presenting the supporters of violence with a propaganda coup. If constitutions prevent candidates from standing for election on a pro-violence manifesto there should in any event be no candidates standing who would be willing to give effect to the wishes of voters who think that violence is justifiable. At a more general level, constitutions sometimes make it clear what status international law has within the state but they rarely differentiate between the various branches of international law. A good argument can be made for giving a higher constitutional status to international law dealing with terrorism and with human rights. Constitutions should expressly provide for the criminalising of terrorism worldwide, just as international law already requires the expansion of domestic jurisdiction over torture allegedly perpetrated by state officials to situations where either the alleged perpetrator or the victim is a national of the prosecuting state.41 And special recognition should be given to victims of terrorism. In the wise words of Michael Kirby, a former long-serving member of the High Court of Australia: The dangers to the planet render more urgent the building of the international rule of law. No country, however wealthy and powerful in arms and economics, can shoulder,

39 See the opinions expressed by Supreme Court judges in Ireland in cases where members of the IRA relied on the political offence exception to resist extradition to Northern Ireland, eg, McGlinchey v Wren [1982] IR 154, 160 (O’Higgins CJ). 40 This is the principle of aut dedere aut judicare. 41 UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), Art 5.

18  Brice Dickson single handedly, the burdens of being the effective world policeman. The diversity of humanity demands … utilization of established national courts in spreading, where appropriate, any emerging consensus of humanity that international law expresses and reinforces.42

III.  The Accountability of Security Services and Law Enforcement Bodies Too many constitutions perpetuate the assumption that there are many activities conducted on behalf of the state which must remain secret and with which the security services can be entrusted without the need for any public explanation of their methods or results. The ‘neither confirm nor deny’ stance is too readily trotted out in an attempt to obfuscate and excuse. Good constitutional governance would provide for effective regulation of state security services. While recognising that some practices and information must be kept secret for fear of facilitating terrorist activity, the state should otherwise do all that it can to reduce the opaqueness of security service activity, whether occurring at home or abroad. In the UK there have been recent reforms that make the security services accountable in ways which many other countries would not accept but which still reserve a few matters for the eyes of a small number of people. At the end of the day, for example, the British public are asked to trust the word of senior judges who produce decisions and reports on whether the actions of security personnel in hacking into computers, planting listening devices, infiltrating organisations and interacting with informants have all been undertaken in accordance with requirements set down in legislation.43 It is of course possible, some would say likely, that state security services also engage in actions which are not regulated, but the opportunities for doing so are fewer than before and those who take part in them are at greater risk than ever of being disciplined by their superior officers at the time or outed by others in later years. In March 2018 the Prime Minister announced that she had passed to the Investigatory Powers Commissioner’s Office (IPCO) the direction issued to security service agents concerning their participation in criminality. The IPCO must oversee such participation and decide if the direction has been breached. What remains unpublished is the guidance issued to the security services stipulating in what circumstances individual agents can break the law: the general public is asked to put its faith in the independence and impartiality of the IPCO.44 42 M Kirby, ‘International Law – The Impact on National Constitutions’ (2006) 21 American University International Law Review 327, 362–63. 43 See, eg, Ira Ryk-Lakhman, ‘The Investigatory Powers Act and International Law’ (UCL Journal of Law and Jurisprudence Blog) Part 1 (26 December 2016) and Part 2 (9 January 2017). 44 See REPRIEVE, ‘Theresa May forced to publish secret order on crimes by MI5’ (1 March 2018), available at: reprieve.org.uk/press/theresa-may-forced-publish-secret-order-crimes-mi5.

Constitutions and Counter-Terrorism  19 Through whistle-blowing by former insiders such as Edward Snowden and organisations such as Wikileaks and the International Consortium of Investigative Journalists, many high-profile incidents have been brought to light which expose illegal practices on the part of state security personnel, especially within the US.45 Various inquiries and legal actions have contributed to this process. Some of these relate to nefarious activities of intelligence officers operating for the British Army in Northern Ireland. Sir John Stevens’ inquiry found that these officers colluded in the murder of many civilians.46 A review by a senior QC into the murder of solicitor Pat Finucane in 1989 led to a public apology by Prime Minister David Cameron for the ‘shocking levels of collusion’ on the part of the Force Research Unit within the British Army.47 The police, too, need to remain fully accountable when they are conducting counter-terrorism activities. Inquiries into the conduct of Mark Kennedy and others, who infiltrated protest groups in England and had sexual relations with female protestors leading some of them to become pregnant, show that even in the first decade of the twenty-first century the controls on such operatives were inadequate.48 The Northern Ireland Police Ombudsman Nuala O’Loan, in her 2007 report into links between police officers and informants in the Ulster Volunteer Force, an illegal paramilitary group, found that informants could be linked to 10 murders and 10 attempted murders, alongside multiple other crimes including a bomb attack in the Republic of Ireland.49 A comparable report was issued by a subsequent Police Ombudsman in 2016.50 There is no foolproof way of ensuring that unlawful actions by security service and law enforcement officers will always be brought to light, but constitutions should ensure that as thorough a system as possible is in place to aim at that goal. In the UK there was no explicit statutory recognition of the ­security services until 1989.51 Recent legislation has updated their powers as well as

45 See, eg (on Snowden) BBC News, ‘Edward Snowden: Leaks that exposed US spy programme’ (17 January 2014); (on Wikileaks) Amy Goodman, ‘The world owes a debt to WikiLeaks’ w ­ histleblowing’ The Guardian (6 July 2011); (on the Panama Papers) International Consortium of Investigative Journalists, ‘About’, available at: www.icij.org/about. 46 Sir John Stevens, Stevens Enquiry: Overview and Recommendations (17 April 2003). 47 Henry McDonald and Owen Boycott, ‘David Cameron admits “shocking levels of collusion” in Pat Finucane murder’ The Guardian (12 December 2012). They are commenting on the review conducted by Sir Desmond de Silva QC: D de Silva, The Report of the Patrick Finucane Review HC 802-I (London, Stationery Office, 2012). 48 R Evans and P Lewis, Undercover: The True Story of Britain’s Secret Police (London, Guardian Books and Faber & Faber, 2012). 49 N O’Loan, Operation Ballast: Investigation into the circumstances surrounding the murder of Raymond McCord Jr (Office of the Police Ombudsman for Northern Ireland, 2007). 50 Police Ombudsman for Northern Ireland, Statutory Report – The Murders at the Heights Bar, Loughinisland, 18 June 1994 (Office of the Police Ombudsman for Northern Ireland, 2016). This report was later castigated by McCloskey J: In the Matter of an Application by Thomas Ronald Hawthorne and Raymond White for Judicial Review v Police Ombudsman for Northern Ireland [2018] NIQB 5. 51 See the Security Service Act 1989. Most of this has since been repealed and replaced by legislation such as the Security Service Act 1996, the Regulation of Investigatory Powers Act 2000 and the Investigatory Powers Act 2016. Most of the 2016 Act is not yet in force (as of 12 March 2018).

20  Brice Dickson relevant accountability mechanisms. It makes it clearer which conditions have to be fulfilled to ensure that interceptions are lawfully conducted and communications data lawfully retained.52 Ultimately the Judicial Commissioners whose approval is required for the issuing of interception and examination warrants will do their work partly behind closed doors.53 On the other hand, the Investigatory Powers Tribunal, which investigates complaints that public authorities, including law enforcement agencies, have unlawfully violated a person’s right to privacy or a number of other rights, does allow adversarial hearings in open court on the basis of ‘assumed facts’.54 Closed hearings can occur only when the Tribunal is explaining how it has arrived at its legal conclusions based on those facts. The Investigatory Powers Act 2016 allows an appeal to be brought to the Court of Appeal against a decision of the Investigatory Powers Tribunal55 and creates the position of an Investigatory Powers Commissioner to replace three previous officials – the Interception of Communications Commissioner, the Chief Surveillance Commissioners and the Intelligence Services Commissioner.56 All of this has been arrived at through ‘ordinary’ legislation rather than through a constitution, but there is no reason why the general principles underlying such legislation should not be summarised at the constitutional level. South Africa can again provide a model in this regard, as section 199 of its 1996 Constitution requires, amongst other things, that the security services must be regulated by national legislation, must act and teach their members to act in accordance with the Constitution and the law including customary international law, must disobey a manifestly illegal order and must not further in a partisan way the interest of a political party or prejudice such an interest so long as it is constitutionally legitimate. A new threat to constitutionalism and the international rule of law is presented by the use of drones during counter-terrorism operations. A report by Goldman Sachs suggests that annual military spending on drones will rise to $70 billion by 2020, though it does not specify what proportion of that will be allocated to counter-terrorism.57 Given that the US is heavily involved in combating what it calls ‘international terrorism’ in countries such as Afghanistan, Iraq, Pakistan, Somalia and Yemen,58 it is safe to assume that many of the fatalities resulting from 52 Investigatory Powers Act 2016, ss 3–14 and 44–98. 53 ibid, s 23. If a Judicial Commissioner refuses approval for a warrant a second application can be made to the Investigatory Powers Commissioner, but no appeal is possible against that Commissioner’s refusal: ibid, s 23(5). 54 See the description of the Tribunal’s work on the home page of its website (www.ipt-uk.com) and rule 10(6) of the draft Investigatory Powers Tribunal Rules 2017. 55 s 242, inserting s 67A into the Regulation of Investigatory Powers Act 2000. 56 s 227(1)(a). Lord Justice Fulford was appointed to the role of Investigatory Powers Commissioner in March 2017. 57 Drones – Reporting for Work (no date given), available at: www.goldmansachs.com/our-thinking/ technology-driving-innovation/drones. 58 For figures on the use of drones in four of these countries (not Iraq) see the website of the Bureau of Investigative Journalism: www.thebureauinvestigates.com/stories/2017-01-01/drone-warsthe-full-data.

Constitutions and Counter-Terrorism  21 drone strikes in those places can be categorised as victims of counter-terrorist activity. Yet there are no effective accountability mechanisms in place to check that such drones are being deployed and activated lawfully. Sarah Kreps has usefully summarised the benefits and dangers attached to the use of drones within counter-terrorism and seems supportive of the view that because drone strikes create more terrorists than they kill, especially in Pakistan and Yemen, they should be used much less frequently.59 It is impossible to obtain reliable figures for the number of people killed by drones, and how many of them were actively involved in terrorism at any time, never mind at the time of their death, but for Pakistan, in the year 2011, estimates of the percentage of civilian fatalities resulting from drone strikes vary from 8 per cent to 34 per cent.60 The total number of fatalities resulting from drone strikes in Pakistan between 2004 and 2017 is supposedly 2,514.61 After examining the relevant international law norms Mary Ellen O’Connell considers their use from 2004 to 2009 to have been unlawful.62 What makes it difficult to hold states accountable for their use of drones during counter-terrorist operations is the fact that within international law there is uncertainty as to when such a drone strike would be unlawful. It depends on whether the fight against international terrorism is governed by the laws of war or by international human rights law and on when lethal force would be ‘proportionate’ for the purposes of the former or ‘absolutely necessary’ for the purposes of the latter.63 It follows that it may not help much if national constitutions were simply to cross-refer to international law in the context of the right to life, because this would probably be interpreted as a reference to international humanitarian law, the lex specialis in times of war, which tolerates the killing of terrorists so long as they were reasonably assessed as posing an imminent danger to the ­country operating the drone. This certainly seems to be the view of the US and UK ­governments.64 Good claims can be made for asserting that, in the UK at least, drone operators could be convicted of murder under domestic criminal law even if the deaths occurred abroad.65 59 SE Kreps, Drones: What Everyone Needs to Know (Oxford, Oxford University Press, 2016) esp 29–32. 60 ibid 23. 61 See: www.statista.com/statistics/428663/casualties-from-us-drone-strikes-in-pakistan. 62 ME O’Connell, ‘Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004–2009’ in S Bronitt, M Gani and S Hufnagel, Shooting to Kill: Socio-Legal Perspectives on the Use of Lethal Force (Oxford, Hart Publishing, 2012). 63 D Brunstetter and A Jimenez-Bacardi, ‘Clashing Over Drones: The Legal and Normative Gap Between the United States and the Human Rights Community’ (2015) 19 International Journal of Human Rights 176. 64 B Egan, Legal Adviser to the US State Department, ‘International Law, Legal Diplomacy, and the Counter-ISIL Campaign’, lecture at the American Society of International Law, Washington DC, 1 April 2016, available at: stockton.usnwc.edu/ils/vol92/iss1/7; J Wright, Attorney General for England and Wales, ‘The modern law of self-defence’, lecture at the International Institute for Strategic Studies, London, 11 January 2017, available at: www.gov.uk/government/speeches/ attorney-generals-speech-at-the-international-institute-for-strategic-studies. 65 S Gardner, ‘The Domestic Criminal Legality of the RAF Drone Strike in Syria in August 2015’ [2016] Criminal Law Review 35.

22  Brice Dickson

IV.  The Constitutional Protection of Fundamental Rights To guard against allowing international humanitarian law to govern ‘the war on terrorism’, national constitutions should specifically refer to international human rights law in this context, even though this will require a deeper commitment than currently exists on the part of states to subordinate their domestic perceptions of security to the international consensus on what needs to be done to counter terrorism. Within the 47 members of the Council of Europe it is commendable that the European Court of Human Rights has insisted upon states not allowing their fear of terror to blind them to their human rights obligations towards suspected ­terrorists.66 Hence, in A v UK the Court not only upheld the decision of the House of Lords that indefinitely interning foreigners in the UK as a reaction to the events of 9/11 was discriminatory and a violation of Article 5 of the ECHR, but also ruled that when deciding whether evidence should be excluded from the trial of a suspected terrorist on the basis that it may have been obtained by torture the burden of proof is on the state to show that it was not so obtained.67 The European Court has also firmly resisted arguments that states should be allowed to deport suspected terrorists to countries where they could be at serious risk of torture or execution.68 It is enough to prevent deportation if the fairness of the foreign trial could well be compromised by the admission of evidence obtained through the torture of someone other than the applicant.69 The Court recognises that states face immense difficulties in protecting their communities from terrorist violence, but it maintains that Article 3’s protection against ill-treatment is absolute.70 Regrettably, there are small signs that the European Court may be bending a little towards accommodating dubious tactics deployed by states when countering terrorism. In two recent cases against the UK the Court supported the state’s ­position concerning counter-terrorism measures. In Ibrahim v UK it found no violation of the right to a fair trial when three suspected terrorists were interviewed by police in the absence of lawyers supposedly because there was an urgent need to avoid further suicide attacks endangering the lives of members of the public.71

66 See, generally, the European Court’s Factsheet, Terrorism and the European Convention on Human Rights (September 2017). 67 A v UK (2009) 49 EHRR 29. On the burden of proof point the House of Lords had held by 4:3 that the burden lay with the suspect to prove that the evidence had been obtained through torture: A v Secretary of State for the Home Dept [2005] UKHL 71, [2006] 2 AC 221. 68 Saadi v Italy (2009) 49 EHRR 30 (GC), maintaining the line adopted in Chahal v UK (1996) 23 EHRR 413. See also Daoudi v France, App no 19576/08, judgment of 3 December 2009. 69 Othman v UK (2012) 55 EHRR 1 (the Abu Qatada case, involving deportation to Jordan). 70 Saadi v Italy (n 68) paras 137–38. 71 Ibrahim v UK (2015) 61 EHRR 9.

Constitutions and Counter-Terrorism  23 Answers given to questions asked during those interviews were admitted at the suspects’ subsequent trial and all three were convicted of conspiracy to murder.72 In Armani da Silva v UK, an application arising out of the police’s killing of Jean Charles de Menezes in a London tube station in 2005, the European Court found, first, that there were no flaws in the English and Welsh system for deciding whether someone should be prosecuted for an offence and, second, that the law of England and Wales, concerning the state of mind a person must have before being able to rely upon the defence of self-defence if he or she resorts to the use of lethal force, was within the margin of appreciation allowed by the ECHR.73 In other cases, too, the European Court has adopted what to some might seem an overly tolerant stance vis-a-vis a country’s counter-terrorism tactics. In Finogenov v Russia it went so far as to excuse the use of poisonous gas by state authorities when they put an end to a mass hostage-taking by terrorists in a Moscow t­heatre.74 Although the Chamber held unanimously that there had been a violation of Article 2 because the rescue operation had been inadequately planned and had not been subsequently investigated effectively, it also said that, as regards the use of narcotic gas, Russia had not exceeded its margin of appreciation when deciding what was ‘absolutely necessary’ in the specific circumstances. As the Court put it: The Court is acutely conscious of the difficulties faced by states in protecting their populations from terrorist violence, and recognizes the complexity of this problem … In the more specific Russian context, terrorism by various separatist movements in the North Caucasus has been a major threat to national security and public safety in Russia for more than fifteen years, and fighting terrorism is a legitimate concern of the Russian authorities.75

This a worrying development. As Stephen Skinner suggests, it ‘demonstrates the Court’s tendency towards conceptual slippage in this area’.76 The human rights provisions in national constitutions need to be revisited to make sure that they apply to suspected terrorists when they are being investigated, tried and punished in the same way as they apply to ‘ordinary’ suspected criminals. Not even the UN Security Council’s Resolution on the seizing of

72 In the case of a fourth suspect, who had initially been interviewed as a witness and not as a suspect, the Court found a violation of Arts 6(1) and (3)(c) when statements he had made as a witness, in the absence of a lawyer, were used against him at his trial. But because the Court could not be sure that this man would not have been convicted on the basis of the remaining evidence against him, it did not award him any compensation. 73 Armani da Silva v UK (2016) 63 EHRR 12. The domestic law refers to a police officer being allowed to ‘use reasonable force, if necessary, in the exercise of ’ his or her powers (s 117 of the Police and Criminal Evidence Act 1984), while the European Court usually allows force to be used only if it is ‘absolutely necessary’ (Art 2 of the ECHR). 74 Finogenov v Russia (2015) 61 EHRR 4. 75 ibid para 212. 76 S Skinner, ‘Deference, Proportionality and the Margin of Appreciation in Lethal Force Case Law Under Article 2 ECHR’ [2014] European Human Rights Law Review 32, 35.

24  Brice Dickson financial assets of alleged terrorists should be allowed to be implemented without appropriate protection being given to the fair trial rights of those suspects.77 The Court of Justice of the EU and the European Court of Human Rights have each ensured that protection,78 but in other parts of the world it may not exist. If there is room for differentiation between terrorist and non-terrorist defendants it should operate only in the context of qualified rights such as private and family life, freedom of speech, and freedom of assembly and association. The temptation to create special courts for the trial of suspected terrorists should be resisted too, unless they can be justified – as I believe they can in both parts of Ireland – on the basis that the risk to life of ordinary judges and/or jurors would otherwise be too great.79 Constitutions also need to set severe limits on preventive detention: internment without trial is inherently unjust and can easily have counterproductive effects; while it might have seemed justifiable during past conflicts,80 it must today be confined to truly exceptional situations where an insurgency or external attack has reached such heights that the state itself is clearly under an existential threat. In addition, constitutions should require the establishment of effective systems other than litigation for monitoring the protection of human rights. They should promote sunset clauses too. A constitutional role should be given to national human rights institutions, to bodies which can independently investigate complaints against the police and army, and to expert reviewers who must thoroughly assess whether each counter-terrorism measure is necessary and effective. The UK has been well served in this last regard by the former reviewer David Anderson QC (ably advised by Clive Walker)81 and it appears that the current adviser, Max Hill QC, is demonstrating an equally strong commitment to speaking truth to power.

Conclusion Over the past 20 years or so terrorism has become globalised, not in the sense that it is occurring in more and more countries (it has been present in all corners

77 For further discussion, see CH Powell, ‘The United Nations Security Council Sanctions Regime against the Financing of Terrorism’ in C King, C Walker and J Gurulé (eds), The Handbook of Criminal and Terrorism Financing Law (London, Palgrave Macmillan, 2018). 78 See the CJEU’s decisions in Kadi I (Joined Cases C-402/05 P and C-415/05 P, 3 September 2008 (GC)) and Kadi II (Case T-85/09, 18 July 2013 (GC)) and the European Court of Human Rights’ ­judgment in Nada v Switzerland, App no 10593/08, judgment of 12 September 2012 (GC). 79 See B Dickson, The European Convention on Human Rights and the Conflict in Northern Ireland (Oxford, Oxford University Press, 2010) ch 8. 80 As decided by the House of Lords in Liversidge v Anderson [1942] AC 206, by the US Supreme Court in Korematsu v US 323 US 214 (1944), and by the European Court of Human Rights in Lawless v Ireland (1979–80) 1 EHRR 1. 81 See further ch 6 (Anderson) in this collection.

Constitutions and Counter-Terrorism  25 of the world for decades, if not centuries), but in the sense that terrorist groups are now operating collaboratively across frontiers and through the internet. Thus, while al-Qaeda and ISIS may encourage its affiliates to operate in small cells, or even as ‘lone wolves’, there are still strong ideological and financial links between supposedly independent organisations. Boko Haram in Nigeria, Al Shabaab in Somalia and Jamaah Islamiyah in Indonesia all claim to be part of a pan-Islamic network fighting collectively for the establishment of a new Muslim caliphate.82 It follows that the response to such terrorism has to be globally concerted in nature. Unfortunately, international law has not yet developed to such a stage that it is able to coordinate a truly collective response to globalised terrorism. Just as it failed to prevent ethnic conflict in the Balkans in the 1990s, so it has failed to muster a consensus around how to respond to state- and non-state sponsored terrorism in Afghanistan, Iraq, Syria and many other places. Yet, if the UN has not fully succeeded in reaching unanimity it has at least achieved the adoption of a number of international treaties focusing on the prevention of terrorism83 and the protection of human rights.84 These have been widely ratified and are subjected to regular, if not always sufficiently robust, monitoring. Valuable work has been carried out by disparate organisations in an attempt to modernise international law and make it fit for purpose in the era of globalised terrorism. A prime example is the report by the International Bar Association’s Task Force on Terrorism, published in 2011.85 While this focuses on suggestions for more meaningful international engagement with treaties on humanitarian law and human rights law, it emphasises more generally that only a truly international approach to counter-terrorism is likely to be effective. This chapter suggests that the best way of ensuring that an international approach is adopted at the national level is for national constitutions, and the courts which interpret them, to link more closely with international obligations which the state in question has signed up to regarding counter-terrorism and human rights. This should not diminish a state’s sovereignty in situations where governments feel obliged to take particular steps at the national level which may not be required under international treaties, but it should help to ensure that terrorists find less support across the world and that the likelihood of their being detected and brought to justice is enhanced. States do not need to become monist in order to achieve this goal. They merely have to make greater efforts to incorporate and

82 In Africa, during 2016, Al-Shabaab is estimated to have killed 4,281 people, Boko Haram 3,499 and ISIS 2,350: C Gaffey, ‘How Al-Shabaab overtook Boko Haram to become Africa’s deadliest militants’ Newsweek (6 February 2017) available at: www.newsweek.com/isis-africa-al-shabaab-boko-haram619010. 83 See the 19 instruments listed on the home page of the website of the UN Office of CounterTerrorism: www.un.org/en/counterterrorism/legal-instruments.shtml. 84 See the 18 core instruments listed on the website of the UN Office of the High Commissioner for Human Rights: www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx. 85 E Stubbins Bates et al (eds), Terrorism and International Law: Accountability, Remedies, and Reform (Oxford, Oxford University Press, 2011).

26  Brice Dickson implement the obligations they have already assumed at the international level by signing relevant treaties. Of course, there will be some resistance to this on the part of insular nationalists. As so often in the counter-terrorism field, Clive Walker himself has hit the nail on the head in this context: ‘the greatest challenge is to maintain the trust and support of the public through adherence to the precepts of constitutionalism’.86

86 C Walker, ‘The United Kingdom’s Anti-Terrorism Laws: Lessons for Australia’ in A Lynch, E Macdonald and G Williams, Law and Liberty in the War on Terror (Sydney, Federation Press, 2007) 181, 194.

3 Beyond the Ordinary: Criminal Law and Terrorism dermot walsh Introduction Terrorism offences can be considered to be beyond the ‘ordinary’, almost by ­definition. They often display conceptual and definitional features which depart from conventional norms to an extent that sets them apart from their ‘ordinary’ criminal law cousins. Typically, they have been created in response to threats to the person, property and the state where it is considered that ‘ordinary’ criminal law norms (and offences) do not or cannot provide an adequate response. Invariably, the exceptional design and/or substance of these offences are presented as a necessary response to the distinctive nature of the terrorist threat. Equally, perceived changes or new departures in the scale, objectives, ideology or methods associated with that threat are used to justify extreme departures from conventional norms. The standard justifications for special terrorist offences have been contested vigorously across time and place. Some critics have questioned the need to resort to terrorist offences at all, arguing that the ‘ordinary’ criminal law has always possessed sufficient capacity to cope.1 Others have focused more specifically on the manner in which many terrorist offences have been framed, arguing that they are defined too loosely and too broadly and, as such, are ­disproportionate or even ­counterproductive.2 Clive himself was an early leader in this field with his ­pioneering work from the 1970s on the UK’s prevention of terrorism legislation. For his first full critique of the Prevention of Terrorism Act (1984),

1 See, eg, C Scorer and P Hewitt, The Prevention of Terrorism Act: The Case for Repeal (London, NCCL, 1981) Preface and Introduction. 2 See, eg, B Dickson ‘The Prevention of Terrorism (Temporary Provisions) Act 1989’ (1989) 40 Northern Ireland Legal Quarterly 592.

28  Dermot Walsh Clive  formulated ‘pragmatic principles’ for limiting derogations from the ‘ordinary’ law. These were: Special measures … should be brought into operation only so far as necessary in the exigencies of the situation, and this should be judged factually. Second, anti-terrorist laws should derogate as little as factually necessary from ‘normal’ measures in extent. Third, special measures should be clear and precise, and safeguards should be provided to prevent their improper introduction or exercise, including parliamentary scrutiny. Further, their application in an individual case should be considered necessary by an objective and impartial arbiter and should be accompanied by special remedies against unreasonable use. Finally, special laws should be distinct from ordinary powers, since the assimilation of the two may damage confidence in the existing law.’3

Closely associated with the criticisms is the fear that unnecessarily broad terrorist offences will be used by political and security establishments to pursue ulterior political, social and economic agendas under the cover of countering the immediate terrorist threat. Much of the contemporary critical scholarship on this side of the Atlantic focuses heavily on the excesses of the offences found in the UK’s current counterterrorism legislation and comparable measures across Europe. These measures generally reflect a response to the perceived threat posed by international terrorism, and especially the ideological brand encapsulated by the likes of ISIS. It is sometimes forgotten, however, that the current UK counter-terrorism legislation can be traced back in an unbroken line to measures introduced from the 1970s to deal with home-grown or Irish-based terrorism.4 Focusing on a few select examples, this chapter will show how, and the extent to which, current provisions have moved beyond the ‘ordinary’, and beyond their domestically focused predecessors introduced from the 1970s to the 1990s. It is confined to the substantive criminal offences, as distinct from the criminal, civil and administrative powers and procedures which tend to receive the greater share of critical attention. It begins with an outline of selective criminal law norms which can be used as a benchmark of the ‘ordinary’ in the context of the substantive criminal law.

I.  Selected Criminal Law Norms Identifying the contours of the ‘ordinary’ in criminal law is an elusive task. The subject matter of criminal offences is now so extensive and disparate that it is ­difficult to extract content-based features that can be presented as standard.5 Similarly, and despite the vast literature devoted to the topic, there is no universal

3 See C Walker, The Prevention of Terrorism in British Law (Manchester, Manchester University Press, 1986) 8. See also ch 18 (Walker) in this collection. 4 See ch 4 (Greer) in this collection. 5 A Ashworth, ‘Is the Criminal Law a Lost Cause?’ (2000) 116 Law Quarterly Review 225.

Criminal Law and Terrorism  29 agreement on the criteria to determine what conduct should (and should not) be a crime.6 This has led some scholars to settle for a functional definition which focuses on legal consequences. So, for example, Glanville Williams has defined a crime as an act or omission that results in punishment through the application of criminal, as distinct from civil, proceedings.7 Nevertheless, this approach does help to identify certain core features which can be presented as part of the ‘ordinary’ in criminal law. In particular, the centrality of punishment by the state triggers the fundamental rule of law requirement of compliance with the principle of legal certainty, and what Ashworth refers to as formal virtues of clarity, certainty and consistency.8 The principle of legal certainty demands that before a person can be exposed to punishment by the state, he must have been in a position to know in advance that his conduct was prohibited, and that the prohibition was backed up by a specified punishment. Accordingly, the prohibition must be published and expressed in a manner that clearly defines what is prohibited, so that an actor can readily identify on which side of the boundary his behaviour falls.9 Gardner emphasises the need for both textual and moral clarity in this context.10 The former denotes the drafting of criminal offences in straightforward language which avoids excessive technicality or complexity, while the latter refers to the substantive expression of criminal offences in terms that speak readily to people’s general knowledge and experiences. Generic prohibitions, therefore, should be avoided in favour of specific prohibitions which speak to people’s lived understanding of what conduct will expose them to the risk of criminal liability and punishment. The principle of legal certainty, and the rule of law as a whole, can also be undermined by expanding the reach and proliferation of criminal sanctions excessively, thereby enhancing the discretion of law enforcement authorities. Arguably, this is already happening through the rapid and relentless expansion of the criminal law as a convenient tool of governance.11 As the boundaries of the criminal law are expanded for this purpose, so it becomes more difficult for the individual to predict whether his prospective behaviour will attract criminal sanction. 6 For an outline of some divergent views on the subject, see RA Duff et al (eds), The Boundaries of the Criminal Law (Oxford, Oxford University Press, 2010) ch 1; J Gardner, ‘The Functions and Justifications of Criminal Law and Punishment’ in J Gardner, Offences and Defences: Selected Essays in the Philosophy of Criminal Law (Oxford, Oxford University Press, 2007). 7 G Williams, ‘The Definition of Crime’ (1955) 8 Current Legal Problems 107. 8 A Ashworth, Principles of Criminal Law, 5th edn (Oxford, Oxford University Press, 2006) 59. For further discussion of these in the context of the merits of codification, see Law Commission, Criminal Law: A Criminal Code for England and Wales, Vol 1 (London, HMSO, Law Com No 177, 1989) paras 2.2–2.11. 9 See T O’Malley, The Criminal Process (Dublin, Round Hall Thomson Reuter, 2009) 153–54. 10 J Gardner, ‘Rationality and the Rule of Law in Offences against the Person’ (1994) 53 Cambridge Law Journal 502. 11 See, eg, D Husak, Overcriminalisation: The Limits of the Criminal Law (Oxford, Oxford University Press, 2008); J Simon, Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (Oxford, Oxford University Press, 2007); WJ Stuntz, ‘The Pathological Politics of Criminal Law’ (2001) 100 Michigan Law Review 505.

30  Dermot Walsh The substance of the criminal law in practice will be shaped increasingly by the preferences and expedient priorities of law enforcement authorities rather than the clear letter of the law.12 This distorts the ‘ordinary’ and familiar model in which the substantive definition of a criminal offence determines prosecutorial choice, rather than the other way around. The reach of the criminal sanction and the dominance of police and prosecutorial discretion can also be expanded by framing criminal offences in a manner that imposes an obligation on the accused to establish his innocence in respect of the alleged breach. This, of course, is contrary to the ‘ordinary’ in which the prosecution shoulders the full burden of proving that the accused has satisfied each element of the offence. An example of such a departure is an offence that renders possession of a specified object of everyday usage criminal, unless the person in question proves that he was not in possession of the object for a specified harmful purpose.13 Framing criminal offences in this manner risks conflict with the presumption of innocence and the right to a fair trial.14 Equally, it renders large swathes of ordinary everyday behaviour potentially criminal, thereby expanding and obscuring the boundaries of the criminal law extensively. Although not strictly required by the principle of legal certainty, it seems implicit that the prohibited conduct should refer to an act or omission as distinct from a state of being or a state of mind. There can be little doubt that the ordinary canon of criminal law is framed around acts and omissions.15 By comparison, crimes consisting of a state of being are exceptional, while the notion of punishing a pure state of mind is wholly alien to our criminal law.16 This can be traced to the notion that the criminal sanction should be reserved for wrongdoing that produces harmful effects on valued interests.17 Clearly, a state of mind can never produce such effects, while it would be rare for a state of being to do so. As noted above, Clive has consistently espoused the importance of keeping special counter-terrorism measures as close as possible to ‘normal’ or ‘ordinary’ measures.18 He has always argued that the use of extraordinary measures beyond

12 See, eg, Husak (n 11); J Steiker, ‘Criminalization and the Criminal Process: Prudential Mercy as a Limit on Penal Sanctions in an Era of Mass Incarceration’ in RA Duff et al (eds), The Boundaries of the Criminal Law (Oxford, Oxford University Press, 2010) 45. There is an argument that this can provide certain benefits. See, eg, SW Buell, ‘The Upside of Overbreadth’ (2008) 83 New York University Law Review 1491; DK Brown, ‘Democracy and Decriminalisation’ (2007) 86 Texas Law Review 223. 13 See, eg, Terrorism Act 2000, s 57. For critique, see RA Duff, ‘Perversions and Subversions of Criminal Law’ in RA Duff et al (eds), The Boundaries of the Criminal Law (Oxford, Oxford University Press, 2010) 93–97. 14 See, eg, A Ashworth and M Blake, ‘The Presumption of Innocence in English Criminal Law’ [1996] Criminal Law Review 306; A Ashworth, ‘Article 6 and the Fairness of Trials’ [1999] Criminal Law Review 261. 15 See D Ormerod and K Laird, Smith and Hogan’s Criminal Law, 14th edn (Oxford, Oxford University Press, 2015) ch 4. 16 ibid 69–72. 17 See, eg, Ashworth, ‘Is the Criminal Law a Lost Cause?’ (n 5). 18 See, eg Walker, The Prevention of Terrorism in British Law (n 3) 7–8.

Criminal Law and Terrorism  31 the traditions of the legal system may be seen as unfair. Offences that go beyond criminal law norms risk undermining public confidence in the administration of criminal justice and provoking a counterproductive backlash among the communities acutely affected. Accordingly, Clive identified ‘relevant pragmatic principles’ for limiting departures from the ‘ordinary’ criminal law.19 In addition to compliance with the principle of legal certainty, these include keeping derogations from ‘normal’ measures to the minimum factually necessary.20 In the context of substantive offences this means that Parliament should not create special ­counter-terrorism offences where the conduct being targeted is already covered by existing or ‘ordinary’ criminal offences. Where special offences are introduced, Clive has also emphasised the importance of appropriate safeguards to prevent their improper application. It must now be considered how some of the early and current terrorism offences in the UK compare against these norms.

II.  The Early Prevention of Terrorism Offences A.  Background to the Prevention of Terrorism Acts The current body of counter-terrorism legislation in the UK can be traced back in a continuous line to the Prevention of Terrorism (Temporary Provisions) Act 1974. This measure was introduced in response to the major loss of lives in ­British cities from bombings associated with the conflict in Northern Ireland.21 Its character, therefore, was shaped by the threat of terrorism from a very familiar and identifiable domestic source. Indeed, the 1974 Act was merely the latest in a long line of counter-terrorism measures adopted by UK (and later Irish) governments from at least the nineteenth century to deal with violent struggle against British rule in Ireland.22 These measures were aimed primarily at suppressing the activities of armed groups, such as the Irish Republican Army (IRA) and, later, their British-oriented counterparts based in Northern Ireland. In introducing the 1974 Act, the Westminster Parliament clearly had the benefit of extensive precedents and an established view of the nature and parameters of the challenge. Nevertheless, it borrowed selectively from those sources in some

19 ibid 8. 20 More broadly, he has advocated a normative setting of constitutionalism which requires terrorism laws to be subject to a rights audit, democratic accountability and constitutional governance which emphasises compliance with the rule of law: see C Walker, Blackstone’s Guide to the Anti-Terrorism Legislation, 3rd edn (Oxford, Oxford University Press, 2014) 23–26. 21 Walker, The Prevention of Terrorism in British Law (n 3) 22–24; Scorer and Hewitt (n 1) ch 1. 22 See, eg, C Walker, Terrorism and the Law (Oxford, Oxford University Press, 2011); C Campbell, Emergency Law in Ireland 1918–1925 (Oxford, Clarendon Press, 1994); G Hogan and C Walker, Political Violence and the Law in Ireland (Manchester, Manchester University Press, 1989).

32  Dermot Walsh matters and was innovative on others. It conferred extensive executive powers on the Secretary of State and the police, and introduced a small number of special criminal offences. These measures were acknowledged by the Home Secretary to be ‘Draconian’ and ‘unprecedented in peacetime’.23 Originally designed to be temporary, they were continued in force through a combination of extensions and replacements until they were finally superseded by the permanent Terrorism Act 2000. Although the early measures were admittedly draconian and unprecedented in peacetime, they did not encompass the introduction of a large and extensive body of bespoke terrorist offences. The implication was that the existing body of ‘ordinary’ criminal offences was generally adequate to deal with terrorist activities where legally admissible evidence could be secured. This was confirmed in practice where acts of terrorism were regularly dealt with in the courts through the mainstream offences against the person and property and offences related to the use of firearms and explosives. Nevertheless, the few special criminal offences introduced by the early Acts can be criticised as going beyond the ‘ordinary’. These included: offences associated with a proscribed organisation;24 providing/soliciting material contributions towards acts of terrorism;25 and withholding information about acts of terrorism.26 Before examining some of these offences more closely, it is necessary to advert to the definition of terrorism in the early Acts as that is a key element for each of the offences. Terrorism was defined in the 1974 Act broadly to mean the use of violence for political ends, including any use of violence for the purpose of putting the public or any section of the public in fear.27 As such, it clearly reached beyond the violent activities of organisations seeking to change (or retain) the existing political order.28 Nevertheless, it was not a criminal offence in itself, and it did not reach non-violent protests or the actions of groups that did not use violence to seek political change. It required the actual use of violence.

B.  Membership and Related Support Offences The 1974 Act proscribed the IRA and empowered the Home Secretary to proscribe organisations that appeared to him to be concerned in terrorism connected

23 HC Deb 25 November 1974, vol 882, col 35. 24 Prevention of Terrorism (Temporary Provisions) Act 1974, ss 1(1)(a), 1(1)(b) and 2. 25 This was first introduced by the 1976 Act; Prevention of Terrorism (Temporary Provisions) Act 1976, s 10. 26 This was first introduced by the 1976 Act; Prevention of Terrorism (Temporary Provisions) Act 1976, s 11. 27 Prevention of Terrorism (Temporary Provisions) Act 1974, s 9(1). 28 For early critical commentary, see H Street, ‘The Prevention of Terrorism (Temporary Provisions) Act 1974’ [1975] Criminal Law Review 192; LH Leigh, ‘Comment’ [1975] Public Law 1; Walker, The Prevention of Terrorism in British Law (n 3) 6–7.

Criminal Law and Terrorism  33 with Northern Ireland. The Act also introduced an offence of membership of a proscribed organisation, and offences of inviting or giving support to such an organisation. In some respects, these offences were framed in the ­familiar manner of prohibiting certain defined modes of deliberate behaviour. It does not follow, however, that they can be viewed as wholly within the ‘ordinary’. The simple membership offence, for example, did not require conduct furthering or promoting the activities of the organisation.29 Nor did it require entering into an agreement with others to pursue certain unlawful acts for the organisation.30 As such, it seemed to penalise a state of being, namely belonging to an organisation. Indeed, the offence did not even require membership at all. It was sufficient merely to profess membership. This variant of the offence seemed to presuppose some form of material representation by the offender, but it was left unclear what form or forms would trigger liability. Not only did it sit uneasily with the principle of legal certainty, but it also came very close to penalising a state of mind insofar as it reached oral expressions of self-identity. Some of the ‘support’ offences also raised issues of legal certainty, insofar as they were capable of embracing an amorphous range of behaviours far removed from providing tangible support for terrorist organisations or inciting terrorist ­activity. So, for example, the offence of displaying support in public for a proscribed organisation blurred the boundary between expressions of moral allegiance to or sympathy for the organisation’s aims, and the established offence of incitement to hatred or the commission of criminal acts. In Rankin v Murray,31 the defendant was convicted of this offence merely for wearing a ring inscribed with the initials of a proscribed organisation. These membership (and related support) offences also conflicted with Clive’s pragmatic principles for limiting derogations from the ‘ordinary’ criminal law as little as possible. Indeed, he has argued persuasively that they were unnecessary, not least because they were already accommodated within conspiracy offences at common law and in certain offences under the Public Order Act 1936. It would appear that the original motivation for them was to remove the IRA from public sight, rather than any real concern for the prospect of seriously harmful activities going unpunished due to apparent gaps in the criminal law.32 Clive described them as essentially cosmetic, and divorced from the mainstream of either preventing or combating terrorism.33 It is also worth noting that the substance of the

29 By contrast, the 2015 Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism requires the criminalisation of participating in an association or group for the purposes of terrorism, but defines that specifically to mean participating in the activities of the association or group for the purpose of committing or contributing to the commission of one or more terrorist offences by the association or group: Art 2(1). 30 See, eg, Sheldrake v DPP; Attorney General’s Reference (No 4 of 2002) [2004] UKHL 43. 31 Rankin v Murray [2004] SCCR 422. 32 See Review of the Operation of the Prevention of Terrorism (Temporary Provisions) Acts 1974 and 1976 (Cmnd 7324) (London, The Stationery Office, 1978) para 28 (Shackleton Review). 33 Walker, The Prevention of Terrorism in British Law (n 3) 51.

34  Dermot Walsh offence of providing, soliciting or accepting material contributions towards acts of terrorism was adequately covered in the ‘ordinary’ criminal law too. Unlike the membership offences, it was explicitly aimed at contributing to acts of terrorism.34 As Clive pointed out, however, there are offences in the Public Order Act 1936 which required only minor modifications to penalise contributions to acts of violence.35 More positively, it must be acknowledged that relatively few organisations were proscribed under the early Acts. Initially, only the IRA was proscribed, and by the end of the 1990s there were still only two proscribed organisations.36

C.  Withholding Information The offence of failing to disclose information about acts of terrorism (withholding information) presents particular challenges. There are precedents in the mainstream criminal law for penalising a failure to disclose information about certain offences.37 Nevertheless, it is submitted that there are sound reasons for considering that the offence of failing to disclose information about terrorism goes beyond the ‘ordinary’. Its ‘ordinary’ criminal law cousins tend to have a narrow and sharply defined subject application and, frequently, they will relate to activities or obligations that the person in question has voluntarily undertaken. Moreover, it is usually easy to predict in advance what sort of information a person must provide on pain of penalty in respect of these ‘ordinary’ offences. The terrorism offence, by comparison, is exceptionally broad as it concerns information that might be of material assistance in preventing an act of terrorism or in securing the apprehension etc of any person involved in any such act. Given the breadth of the definition of terrorism (which, as will be seen later, is now even broader) it can be difficult for a person to distinguish between information that he must convey to the police on pain of penalty and information that, for whatever reason, he would prefer to keep to himself. This weakness is accentuated by the fact that the offence can reach information about future (as well as past or current) acts of terrorism which, of course, may never happen. There are further reasons for considering that this offence is beyond the ­‘ordinary’. It is unusual in that it penalises a failure to take the initiative in bringing information to the attention of the police, even where the person in question had no role in producing the information or in bringing about the situation to which the information relates. The offence penalises a failure to report on the activities

34 Prevention of Terrorism (Temporary Provisions) Act 1976, s 10. 35 Walker, The Prevention of Terrorism in British Law (n 3) 97. See Public Order Act 1936, s 2. 36 It should be noted that more organisations were proscribed in Northern Ireland alone under the Northern Irish emergency legislation. Indeed, the failure to include all of them in the UK-wide legislation raised an issue of unequal treatment across the political and sectarian divide. 37 Walker, The Prevention of Terrorism in British Law (n 3) 108.

Criminal Law and Terrorism  35 or thoughts of strangers. More disturbing, perhaps, is its impact on contemporary human rights values and associated criminal law norms. It extends to the situation of a person who is being questioned by the police about his knowledge of a terrorist enterprise in which he is alleged to be involved with others. Such an offence of silence is a serious attack on the autonomy of the individual, and is at odds with the accusatorial character of the criminal justice system in a common law ­jurisdiction. It can also conflict with the privilege against self-incrimination and the right to silence in the face of police questioning.38 Further concern is that there are no express limitations for the benefit of journalists, family members, legal advisers and clergy. Admittedly, there is provision for a defence of reasonable excuse, but that is not sufficient to protect those special interests.39 Taking all these aspects into account, it is difficult to avoid the conclusion that the offence of failure to disclose information goes beyond the ‘ordinary’. Interestingly, Ireland added an almost identical offence of withholding information to its counter-terrorism code in 1998.40 Recently, however, the Irish High Court struck it down as unconstitutional.41 At the core of the High Court’s reasoning was its conclusion that the offence was so wide in scope that it encroached excessively on the suspect’s right to silence under police questioning and on the privilege against self-incrimination.

III.  Current Body of Terrorist Offences A. Context It should be apparent from the analysis of some of the early terrorism offences that they went beyond the ordinary in ‘several’ respects. Nevertheless, it must also be acknowledged that they were few in number,42 and that they attracted relatively few actual prosecutions and convictions. Although there are some similarities between these early offences and those introduced as part of the permanent counter-terrorism code from 2000, the latter can be viewed collectively as being of a different kind. This is indicated by the dramatic expansion in numbers, scope and complexity alone. It is also submitted that they present a more fundamental ­challenge to the principle of legal certainty and related criminal law norms. 38 Although the obligation related to information about an act of terrorism by another person, the information in question could also incriminate the person under the obligation to give it. 39 See Clive Walker’s analysis of these situations in: C Walker, ‘Investigative Journalism and Counter Terrorism Laws’ (2017) 31 Notre Dame Journal of Law, Ethics & Public Policy 129; C Walker, ‘Conscripting the Public in Terrorism Policing: Towards Safer Communities or a Police State?’ [2010] Criminal Law Review 441, 445–50. 40 Offences against the State (Amendment) Act 1998, s 9. 41 Sweeney v Ireland [2017] IEHC 702, [2018] 1 ILRM 338. 42 It must also be acknowledged that there were further additions when the 1976 Act was replaced in 1984 and again in 1989.

36  Dermot Walsh Not only do they go beyond the ‘ordinary’ in criminal law, but they even go beyond the ‘ordinary’ in those offences initially introduced to combat Northern Irish based terrorism in the 1970s. This will be illustrated primarily by an examination of aspects of the current membership and support offences, and the development of what have come to be known widely as ‘precursor’ offences.43 Before doing that, however, it is necessary to draw attention to the expanded definition of terrorism introduced by the Terrorism Act 2000, as that plays a generic role in distinguishing the current offences from their predecessors.

B. Terrorism As noted above, the definition of terrorism in the legislation introduced to deal with Northern Irish based terrorism was broad, but at least it had the merit of focusing on the use of violence. The current definition, introduced by the Terrorism Act 2000, is not so constrained.44 It focuses on action or the threat of action. Moreover, the action or threat need not involve violence against person or property. It can relate to endangerment, a serious risk to the health or safety of the public (or a section of the public) or any serious interference with or disruption to an electronic system. Moreover, it is sufficient that such threat or action is designed to ‘influence’ the government (or an international governmental organisation), or is for the purpose of advancing a political, religious, racial or ideological cause. The definition extends to action outside the UK, and the target of the action or threat can also be outside the UK. Not surprisingly, the current definition has been widely criticised as giving terrorism an exceptionally broad scope.45 Not only can it reach forms of peaceful political, social or religious agitation/campaigning at home and abroad, but its potential applications are so diffuse that it can be difficult for an actor to know in advance whether his proposed course of conduct (or the activities of others with whom he associates) will bring him within the net. If terrorism, as currently defined, was a criminal offence, it would fall foul of the principle of legal certainty. That weakness, however, is imported into many of the offences provided by the 2000 Act (as amended) insofar as the term ‘terrorism’ is included in their definitions. 43 See Walker, Terrorism and the Law (n 22) ch 5 for an analysis and critique of these and a much wider range of terrorism offences. 44 Terrorism Act 2000, s 1. 45 See, eg, R v Gul [2013] UKSC 64; A Greene, ‘The Quest for a Satisfactory Definition of Terrorism: R v Gul’ (2014) 77 Modern Law Review 780; D Anderson, The Terrorism Acts in 2013: Report of the Independent Reviewer on the Operation of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006 (Home Office, 2014) chs 4 and 10. Note, however, that the Court of Appeal has since moved to limit the scope of the definition by, among other things, linking it to the use of violence: see R (Miranda) v Secretary of State for the Home Department and Commissioner for the Metropolitan Police [2016] EWCA 6.

Criminal Law and Terrorism  37

C.  Membership and Related Offences The reach of the offences of membership of, or displaying support in public for, a proscribed organisation has been expanded enormously from the 1970s. For the most part this can be attributed to changes in the substance and exercise of the proscription power. Superficially, the Home Secretary’s power to proscribe an organisation remains the same as before; namely that she believes that it is concerned in terrorism. The basis for proscription, however, has been expanded substantially given the broader definition of terrorism.46 Moreover, the target organisation need not even be engaged in acts of terrorism. It will be sufficient if it praises or celebrates past or future acts of terrorism in a manner that could reasonably be interpreted as a type of conduct that should be emulated.47 This takes the proscription power beyond armed terrorist organisations to reach ­politically sympathetic bodies. The introduction of a mechanism for appealing against the Home Secretary’s refusal to de-proscribe a group has proved an inadequate safeguard in practice.48 The combined effect of these changes is reflected in the massively expanded list of proscribed organisations.49 From a base of only two before 2000, the list has increased to a total of 88 (74 foreign and 14 Northern Irish based) organisations at the time of writing.50 Casting the net of proscription far and wide in this manner has a knock-on effect on the offences of membership and related support offences. They are even less compliant with the principle of legality and criminal law norms than their predecessor. A person is at risk if he openly identifies with an organisation seeking the overthrow of a government at home or abroad, even if that organisation does not actually use violence. At the very least, he must check (and keep checking) the list of proscribed organisations. The length and complexity of that list make this a difficult exercise. A further twist is that the offence can be committed by joining an organisation abroad at a time when it was not subject to proscription in the UK. If the organisation is subsequently proscribed in the UK and the individual comes here unaware of that fact, he will be at risk of prosecution for the ­membership offence.51

46 Terrorism Act 2000, s 3. 47 This results from a combination of ss 3(3)(a), (4), 5(c), (5A), (5B) and (5C) of the Terrorism Act 2000. 48 See Walker, Blackstone’s Guide to the Anti-Terrorism Legislation (n 20) 51–54. In his report for 2015, the Independent Reviewer described as contrary to the rule of law the continued proscription of groups that do not satisfy the statutory requirement: D Anderson, The Terrorism Acts in 2015: Report of the Independent Reviewer on the Operation of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006 (Home Office, 2016) paras 5.13 and 5.24. 49 Prevention of Terrorism Act 2000, pt II and sch 2. 50 See Home Office, Proscribed Terrorist Organisations (22 December 2017). 51 R v Hundal; R v Dhaliwal [2004] EWCA Crim 389.

38  Dermot Walsh The threat posed to freedom of political expression and association by proscription and the membership offence is obvious.52 Indeed, it would seem that proscription is seen in government quarters as having a useful chilling or deterrent effect.53 This is a concern given that proscription is not confined to violent organisations. Moreover, what is included, and what is not included, in the list of proscribed organisations involves deeply political choices;54 with the basis for proscription (or refusal to de-proscribe) lacking in transparency. Despite all these concerns, there is no sign of the government tightening up on the proscription power and associated offences. Indeed, it would appear to be moving in the other direction with proposals for extending proscription to ‘extremist’ groups and imposing controls on ‘extremists’ who are currently acting within the law.55 Clive has criticised these proposals as ‘offering a platform for intolerance’.56

D.  Support and Encouragement Offences The financial support offences have been significantly expanded in substance, reach and detail.57 Unlike the original, the contribution offences are linked to terrorism, rather than the resources of a proscribed organisation. More significantly, they no longer require knowledge that the contribution is for the purposes of terrorism. It will be sufficient if the accused has reasonable cause to suspect that it may be so used. This departure from the traditional subjective mens rea significantly expands the fuzzy parameters and impact of the offences. Wholly new offences include the use and possession of money or other property for the purposes of terrorism.58 Their parameters are vague, with the result that it is d ­ ifficult for an actor to know whether and when he is transgressing the boundaries. In O’Driscoll v Secretary of State for the Home Department,59 for example, the Divisional Court upheld the offence of possession of property for the purposes of terrorism in a challenge by the claimant who had been arrested when entering the country in possession of a magazine associated with a proscribed Turkish organisation. 52 It must be acknowledged that the European Court of Human Rights is generally hostile to extending freedom of expression to groups that are sympathetic to terrorism. See, eg, Leroy v France App no 36109/03 (ECHR, 2 October 2008) and Zana v Turkey App no 18954/91 (ECHR, 25 November 1997). 53 See, eg, Home Affairs Committee, The Roots of Violent Radicalisation (HC 2010–12, 1446) para 85. 54 T Legrand and L Jarvis, ‘Enemies of the State: Prosecution Powers and their Use in the UK’ (2014) 9 British Politics 450; L Jarvis and T Legrand, ‘Legislating for Otherness: Proscription Powers and Parliamentary Discourse’ (2016) 42 Review of International Studies 558. 55 HM Government, Counter-Extremism Strategy (Cm 9148) (London, Stationery Office, 2015) paras 112–15. 56 J Blackbourn and C Walker, ‘Interdiction and Indoctrination: The Counter-Terrorism and Security Act 2015’ (2016) 79 Modern Law Review 840, 869. 57 Terrorism Act 2000, s 15. 58 ibid s 16. 59 O’Driscoll v Secretary of State for the Home Department [2002] EWHC 2477 (Admin).

Criminal Law and Terrorism  39 Arguably, a more extreme departure from criminal law norms is reflected in the offences of encouragement to terrorism. So, for example, it is now an offence to publish a statement that is likely to be understood by some or all members of the public to whom it is published as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism.60 This exceeds the regular concept of incitement in the criminal law at several levels. Linking the encouragement to terrorism, as distinct from a specific criminal act, gives it an exceptionally wide and ill-defined reach. The statement can take many formats and can be published ‘in any manner’. It does not have to be targeted at an audience in the UK, or even be concerned with terrorism in the UK. Indeed, it does not have to be linked to a particular act or type of terrorism, and it does not matter that no person was actually encouraged.61 The inclusion of ‘indirect encouragement’ only expands and blurs the limits of the offence further. The partial definition of ‘indirect encouragement’ to include a statement that praises or celebrates the commission or preparation of acts of terrorism arguably ­accentuates these aspects.62 Unlike the traditional concept of incitement, it is not necessary that the accused should intend another party to commit an offence (or act of terrorism). The offence is supplemented by equally wide ranging and ill-defined offences of disseminating publications with intent or recklessness as to direct or indirect encouragement to acts of terrorism.63 As with the membership and related offences, these offences can be criticised for their constraining effect on freedom of expression and association. In particular, they can have a chilling effect on speech aimed at highlighting the possible causes of terrorism, or even public criticism of counter-terrorism methods and actions. They also reflect a serious departure from the principle of legal certainty.64 They leave too much room for their scope and application to be shaped in practice by political and prosecutorial discretion. Clive, for example, comments that they lead on to a slippery slope of judgements upon all matter of foreign disputes and chance remarks.65 Once again, the need for such excess can be questioned, not least because they can be a relatively blunt and ineffectual instrument in the ‘war of words’ against terrorism.66 The underlying objective of combating encouragement to violence, for example, surely can be achieved satisfactorily through other mainstream criminal offences.67 Indeed, there is a real suspicion 60 Terrorism Act 2006, s 1. See also, Terrorism Act 2000, ss 57 and 58 which criminalise the possession of an article for the purposes of terrorism and collecting or possessing information likely to be useful to terrorism. See further, ch 10 (Petzsche and Cancio Meliá) in this collection. 61 Terrorism Act 2006, s 1(5). 62 ibid s 1(3). 63 ibid s 2(1). 64 See Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: Terrorism Bill and Related Matters (2005–06, HL 75, HC 561) paras 26–37. 65 See Walker, Blackstone’s Guide to the Anti-Terrorism Legislation (n 20) 79. 66 C Walker, ‘The War of Words with Terrorism: An Assessment of the Three Approaches to Pursue and Prevent’ (2017) 22 Journal of Conflict and Security Law 523, 532–34. 67 See Walker, Blackstone’s Guide to the Anti-Terrorism Legislation (n 20) 78–79; F Galli, ‘Freedom of thought or ‘thought-crimes’? Counter-terrorism and freedom of expression’ in A Masferrer and

40  Dermot Walsh that the primary government motivation in introducing this offence was a desire to signal that it was taking resolute action against a perceived problem, rather than a considered response to that problem.68

E.  Withholding Information The Shackleton Review of the UK’s Prevention of Terrorism legislation in 1978 recommended the abolition of the withholding offence.69 The offence did not appear in the Terrorism Act 2000 but was reintroduced in virtually the same form by the Anti-terrorism, Crime and Security Act 2001.70 As such, it suffers from the same weaknesses as its predecessor. Indeed, in some respects, the current version is even more objectionable, given the wider definition of terrorism. Writing in 2010, Clive notes that many recent prosecutions have concerned the spouses or families of terrorists.71 This gives substance to the fear that it can be used to place close family members in the very difficult position of having to choose between their bonds with loved ones and acting as a proactive state informer against those very same loved ones. It is highly unlikely that punishing the former for their silence in such situations will incentivise them to side with the state. It is submitted that it is more likely to generate a sense of grievance and counterproductive alienation.

F.  Precursor Offences A major new departure in the development of counter-terrorism offences relates to what has generally become known as precursor or preparatory offences. These entail the criminalisation of conduct that may eventually lead to the commission of a terrorist act. Examples targeting specified, but otherwise lawful, activities include: training for terrorism;72 possession of items for terrorist purposes;73 collecting information likely to be useful to terrorism;74 eliciting etc information about members of the security forces;75 encouragement of terrorism;76 and dissemination of terrorist publications.77 The ‘ordinary’ criminal law has always C Walker (eds), Counter-Terrorism, Human Rights and the Rule of Law: Crossing Legal Boundaries in Defence of the State (Cheltenham, Edward Edgar, 2013); S Chehani Ekaratne, ‘Redundant Restriction: The UK’s Offense of Glorifying Terrorism’ (2010) 23 Harvard Human Rights Law Journal 205. 68 See Galli (n 67) 115–16. 69 Shackleton Review (n 32) paras 132–33. 70 Terrorism Act 2000, s 38B, as inserted by Anti-terrorism, Crime and Security Act 2001, s 117. 71 Walker, ‘Conscripting the Public’ (n 39) 445–46. 72 Terrorism Act 2000, s 54. 73 ibid s 57. 74 ibid s 58. 75 ibid s 58A. 76 Terrorism Act 2006, s 1. 77 ibid s 2.

Criminal Law and Terrorism  41 entertained the notion of criminalising behaviour in certain circumstances before it had matured in the completion of the intended criminal act.78 The most familiar examples are attempts, incitement and conspiracy. The first can be satisfied only where the accused has gone beyond acts that are merely preparatory to completion of the final act, while the last requires an agreement to commit the criminal act. All three require an intention that the primary offence be completed; recklessness will not be sufficient. The counter-terrorism precursor offences are fundamentally different. Not only can they arise at a point in time remote from the commission of a primary offence, but the causal association between them and the possible commission of a primary offence in the future can be extremely loose and elusive. This feature is accentuated by the fact that each precursor offence relates to terrorism as distinct from a specific, familiar, criminal offence. Indeed, it need not even envisage the commission of an offence known to the criminal law at all. In effect, these precursor offences are seeking to penalise terrorist intentions long before they materialise in the form of a terrorist act.79 Perhaps, these concerns would be ameliorated somewhat if the prosecution had to prove a specific intent on the part of the accused that his conduct should lead to the commission of a specific act of terrorism. Unlike their mainstream criminal law counterparts, however, even this requirement is mostly absent. Encouragement of terrorism and dissemination of terrorist publications, for example, can be satisfied by mere recklessness that one’s words or conduct will have the indirect effect of encouraging others to commit, prepare or instigate acts of terrorism. Most of the precursor offences entail an evidential burden being cast on the shoulders of the accused. If the prosecution establish that he has engaged in the specified conduct, the accused will have to discharge an evidential burden of proving that his conduct was not for a purpose connected with terrorism. This feature, more than most, plays a key role in empowering the police and prosecution to take coercive action against individuals from ‘suspect’ communities where their otherwise lawful conduct might harbour a threat to state political and security interests. The possession offence, for example, can be satisfied by possession of an article which merely gives rise to a reasonable suspicion that it is possessed for a purpose connected with the commission, preparation or instigation of an act terrorism. By any standard, this is an excessively broad and open-ended offence. Duff observed that it ‘stretches criminal liability well beyond the realms not only of completed substantive crimes but also of attempts to commit such crimes’.80 While a reasonable suspicion of committing or being about to commit a criminal offence may be sufficient to merit coercive investigation, it is wholly inappropriate as a basis for punishment. It comes very close to turning the criminal law on its head



78 See

Ormerod and Laird (n 15) ch 13. (n 67) 121. 80 Duff, ‘Perversions and Subversions of Criminal Law’ (n 13) 93. 79 Galli

42  Dermot Walsh so that criminal liability will attach to ordinary everyday lawful conduct, except to the extent that the accused can establish that it should not attach to his conduct.81 The potential for these offences to be used by the police in their own interests to suppress lawful protest activity is immense. In R v McMurney,82 for example, a community activist was targeted for taking photographs of the police handling of a protest against the treatment of republican prisoners in Northern Ireland. His house was searched, and he was arrested, detained and charged with collecting information likely to be useful to terrorism and eliciting information about members of the security forces. He only avoided conviction by managing to establish a reasonable excuse that his actions were concerned with gathering evidence of police harassment of protestors. Nevertheless, the chilling effect on engaging in anti-establishment protest is obvious. Broad as the above precursor offences are, they are outdone by the even more sweeping offence of preparation of terrorist acts. Even though it was only introduced in 2006, it is now the most charged provision of the terrorism legislation since 9/11.83 The offence consists of engaging in any conduct in preparation for giving effect to an intention to commit acts of terrorism or to assist another to commit such acts.84 This is unlike any other ‘ordinary’ criminal offence. It penalises conduct that is preparatory to giving effect to an intention to act. There is no requirement that any action should have been taken to expedite a criminal or terrorist act. Discussing ideas and plans could be sufficient. As Clive comments, it ‘penalises bad intentions rather than harms’.85 Jones, Bowers and Lodge suggest that the offence ‘approximates to having criminal thoughts’.86 A core problem with this offence is that it is so broad and elusive that an individual can slip into its tentacles at the earliest stages of planning an act of terrorism, perhaps in a moment of exasperation over the actions of the government or security forces. The fact that he did nothing to put the plans into effect, and could have decided to abandon the plans after he had cooled down, will not avail him. In R v Choudury,87 for example, the offence was satisfied by plans to attack the London Stock Exchange and other targets even though, at the time of arrest, no materials had been obtained with a view to constructing an explosive device, nor had any firm date been set for carrying it out. Clearly, the offence can have a chilling effect on private discussions among individuals on acts of terrorism. Even speculating how specific acts could be mounted risks triggering action

81 Duff rightly points out that the accused is being asked to shoulder this evidential burden in respect of conduct that merely creates a reasonable suspicion of a wrong, as distinct from conduct that is presumptively wrong: ibid, 96–97. 82 R v McMurney [2014] NICC 4. 83 Anderson, The Terrorism Acts in 2015 (n 48) para 9(3). 84 Terrorism Act 2006, s.5(1). 85 Walker, Blackstone’s Guide to the Anti-Terrorism Legislation (n 20) 228. 86 A Jones, R Bowers and H Lodge, The Terrorism Act 2006 (Oxford, Oxford University Press, 2006) para 305. 87 Cited in Walker, Blackstone’s Guide to the Anti-Terrorism Legislation (n 20) 227.

Criminal Law and Terrorism  43 under it. While the state does need the capacity to act against individuals who have embarked on an agreed terrorist enterprise, that capacity is already present in conspiracy and other offences known to the criminal law. Criminalising individuals who may merely be ‘letting off steam’ in private discussion surely takes the criminal law into territory where it should not be going. Nevertheless, and despite its gross departure from the principle of legal certainty, it is being used frequently and is attracting very severe sentences.88 As with the withholding information offence, these precursor offences can be criticised for a lack of clearly defined exceptions for solicitors and journalists. More broadly, they reflect a prioritisation of early intervention in the interests of state security and control over the norms of criminal liability. This drift towards prevention raises the question of whether terrorists are being viewed and treated as criminals who are both bound and protected by the criminal law and rights of due process, or whether in fact they are being subjected to exceptional treatment under what Gunther Jakobs presents as an ‘enemy criminal law’.89 Distinctive features of this enemy criminal law are the punishment of an individual before harm occurs in order to prevent it, coupled with the limitation or exclusion of procedural rights and the application of comparably disproportionate sanctions. Galli rightly describes this as representing an upheaval of the traditional function of the investigation and the trial which are meant to ascertain the commission of an offence, as distinct from preventing it.90 The precursor offences seem to fit neatly into this mould.

Conclusion This chapter has argued that the special offences provided for in the UK’s current terrorism legislation go far beyond the ‘ordinary’ in the mainstream criminal law, and even the excesses of those first introduced by the prevention of terrorism legislation in the 1970s. They strain the basic principle of legal certainty arguably beyond breaking point by, for example: legislating in terms that leave the parameters of the offences vague and porous; expanding the sheer volume and subject matter of the offences enormously; and affording executive and prosecutorial authorities excessive discretion in determining the reach and application of some of the offences. Closely associated with these aspects are: forcing individuals to act as state informers on pain of penalty; imposing an evidential burden on accused persons to establish that they are not engaged in terrorist-related conduct; and

88 ibid 228, 234–35. 89 See S Braum, ‘Are we heading towards a European form of “Enemy Criminal Law”?’ in F Galli and A Weyembergh (eds), EU Counterterrorism Offences (Brussels, University of Brussels, 2012); G Jakobs and M Cancio Meliá, Criminal Law of the Enemy, 2nd edn (Madrid, Civitas, 2006). 90 Galli (n 67) 124.

44  Dermot Walsh encroaching excessively on fundamental rights of freedom of expression, association and privacy, not to mention hints of encroaching on freedom of thought and self-identity. It is difficult to find respect for the rule of law under the weight of these excesses. Certainly, the state is justified and obliged to create bespoke offences in response to new threats of violence to the person and property and to systemic threats to the functioning of the state itself. Equally, however, that should not be used as a cover to introduce special offences that go far beyond the ‘ordinary’ when existing criminal offences are available to meet the threat. Insofar as the latter are found wanting, modifications should be kept as close as possible to the ‘ordinary’, in line with Clive’s principle of limited derogation. Ultimately, failure to observe this limiting principle is damaging to the legitimacy of the broader counter-terrorism regime as it becomes more detached from the values that traditionally have anchored consent to and respect for the ordinary criminal law.

4 Terrorism and Counter-Terrorism in the UK: From Northern Irish Troubles to Global Islamist Jihad steven greer Introduction The UK is no stranger to terrorism or counter-terrorism at home and abroad. Since the 1970s the domestic experience has fallen into three principal categories spanning two phases. ‘Troubles-based’ lasted from the early 1970s effectively to 2003, the last year fatalities in this context reached double figures. ‘UK ­jihadi-based’ began with the London bombings of July 2005, continues to the present and presents by far the most significant threat. ‘Other’ types – including the ­activities of animal rights, anarchist, far-right and other extremists – have endured from the 1970s, and although never assuredly over are, however, marginal so far by ­comparison with the other two.1 Between 1970 and the end of 2017 there were 3,303 fatalities in the UK as a result of terrorism, an average of 68 per year.2 The majority of deaths between 1970 and 1990 (86 per cent), the period with the highest casualty rate, were in Northern Ireland. Give or take less than a handful of incidents which could plausibly be regarded either as acts of terrorism or hate crimes, from 9/11 in 2001 to the end of 2017 there were 95 fatalities due to terrorism, mostly in England, an annual average of 5.9. Each of these figures is significantly lower than the annual averages for homicides of all kinds in England and Wales – 507 between April 2012 and March 20153 – and for deaths in road

1 C Walker, Blackstone’s Guide to the Anti-Terrorism Legislation, 3rd edn (Oxford, Oxford University Press, 2014) 2–4. 2 G Allen and N Dempsey, Terrorism in Great Britain: The Statistics, House of Commons Library Briefing Paper CBP7613, 6 October 2017, 5, plus fatalities from 31 March 2016 to 31 December 2017. 3 Office for National Statistics, Compendium: Homicide, ‘Expected homicide incidents per day’, available at: www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/compendium/ focusonviolentcrimeandsexualoffences/yearendingmarch2015/chapter2homicide.

46  Steven Greer traffic accidents in Great ­Britain – 1,805 between 2010 and 2013.4 But the casualty figures for terrorism can be misleading. For one thing, it is said that since 2005, over 50 terrorist plots, most of them jihadi, have been thwarted.5 And, unlike many other hazards, terrorism not only poses risks to life and limb, but also jeopardises property, public institutions, transport systems, the economy, the sense of safety in public places, and community relations. So, although the jihadi variety may not pose an ‘existential threat’ to the UK, it nevertheless presents a problem which neither government nor society can or should ignore. Drawing upon Clive Walker’s seminal, deep and systematic engagement with the minutiae of UK counter-terrorist law since the early 1980s, and his uncommon sensitivity to context, trends, policy, effects and value-compliance, this chapter seeks to answer the following core questions: what similarities and dissimilarities can be discerned between the Troubles and UK-jihadi types and phases and, as to the similarities and dissimilarities, which are the most significant and why? In order to find answers, the key characteristics of the socio-political environments, including the origins of the respective conflicts, the types of terrorism, and the continuities and discontinuities in counter-terrorist law and policy will be considered. While the differences between the wider environments and the respective kinds of terrorism are much more significant than their superficial similarities, the counter-terrorist responses exhibit a much more complex mix of similarity and dissimilarity.

I.  Contexts and Origins The contexts which gave rise to Troubles-based and to UK-jihadi-related terrorism could hardly be more different. This is particularly true with respect to the origins of the respective conflicts and their ideological, socio-political, cultural and ethnic environments. Together with key features of each of the distinctive forms of terrorism, considered in the following section, these have significant policy implications particularly for the prospects of political settlement. While there are differences of opinion in the extensive literature about the character and origins of the Northern Irish conflict,6 there is little doubt that the following are among its central features. Its originates indirectly from the early seventeenth century attempt by the English Crown to colonise the whole of Catholic Ireland with English and Scottish Protestants in order to prevent the island becoming a bridgehead for an invasion of Britain by France or Spain, hostile Catholic powers. But, in the event, this policy succeeded only in the north-east 4 Department of Transport, ‘Number of fatalities resulting from road accidents in Great Britain CSV table’, available at: www.gov.uk/government/uploads/system/uploads/attachment_data/file/359016/ indicator-table.csv/preview. 5 See S Greer and L Bell, ‘Counter-Terrorist Law in British Universities: A Review of the “Prevent” Debate’ [2018] Public Law 83, 87. 6 See, eg, J Tonge, Northern Ireland (Cambridge, Polity, 2006); T Hennessey, Northern Ireland: The Origins of the Troubles (Dublin, Gill & Macmillan, 2005).

Terrorism and Counter-Terrorism in the UK  47 where there was already a deep, historic connection with Scotland. In the early 1920s, as a result of a British-brokered compromise between (mostly Catholic) Irish nationalists who wanted the whole country to be independent, and (mostly northern Protestant) Unionists who wanted it all to remain part of the UK, Ireland was partitioned, creating two confessional states. Contrary to what the British hoped, there was little rapprochement between the two parts as time progressed. For various reasons, including electoral constituencies gerrymandered by the Unionist authorities, coupled with nationalist/republican abstentionism, the substantial Catholic minority in Northern Ireland, some 40 per cent, was not successfully incorporated into the Northern ‘statelet’. Other forms of active official discrimination against Catholics, including in jobs and the allocation of public housing, compounded Catholic/nationalist grievances. As a result of post-Second World War prosperity and the expansion of educational opportunities, a Northern Irish Catholic/nationalist middle class emerged which, modelling itself on the US civil rights movement, substituted ‘end discrimination’ for the traditional demand to ‘end partition’. This created a reform-or-repression dilemma for Unionism, with the latter prevailing over the former in the late 1960s and early 1970s. The public order crisis, which spiralled out of civil rights mobilisation and Unionist obduracy, manifested at first in street disturbances but degenerated rapidly into organised armed conflict and terrorism which endured, with various peaks and troughs, until the Belfast (or ‘Good Friday’) Agreement of 1998 brought the violent dimension almost completely to an end. Yet, in spite of these positive developments the protagonists in the Troubles continue keenly to affirm their differences. However, by global standards, they largely mirror each other in a shared ideological and socio-political environment. Each assumes, for example, the framework of secular, European nation state liberal democracy. Ethnically they are also rooted in the same thousand-year-old mix of white, northern European Celt, ancient Briton, Pict, Anglo-Saxon, Danish, Norse and Norman. English is the mother tongue for all but a tiny minority who nevertheless speak it fluently. Each affirms, nominally or devoutly, the same Christian heritage, the schism of the sixteenth century Reformation partially softened by twentieth-century ecumenism. Both communities also proudly proclaim their own culture with Catholic/nationalists tending, for example, to embrace the Irish language plus traditional Irish music and dance more enthusiastically than Protestant/Unionists notwithstanding some aficionados among the latter. However, many other cultural artefacts – including traditional cuisine, colloquialisms, humour, marching bands (including pipers), and gable wall murals – transcend the sectarian divide, albeit some in structure if not content. By contrast, UK-jihadi terrorism is, fundamentally, a local manifestation of a global phenomenon originating in the Muslim world abroad.7 Inspired by a global 7 S Maher, Salafi-Jihadism: The History of An Idea (London, Penguin Books, 2017); P Neuman, Radicalized: New Jihadis and the Threat to the West (London, IB Taurus, 2016); P Nesser, Islamist Terrorism in Europe: A History (London, Hurst & Co, 2015).

48  Steven Greer ideal, but not expressed in any single organisation, it has very different ideological, socio-political, cultural, ethnic and religious characteristics from the Western states, societies and cultures with which, including others, those who engage in it are in conflict. It derives, essentially, from a systemic political crisis afflicting and deepening within Islam since the eighteenth century, prompted by the slow and inexorable decline of the great Muslim empires of the Middle East and northern India and by increasing penetration of Western imperial interests in ‘Muslim lands’ including Iran. The entrustment of the fragmented provinces of the Ottoman Empire to the tutelage of the victorious allied powers under the League of Nations mandate system following the First World War was seen in the West as a civilising mission, but widely resented in the region as neo-colonialism. The discovery of oil in Iran in 1908 also greatly increased Western interest there and led to support for the secular Pahlavi dynasty installed by coup d’etat in 1921. Several further developments during the Cold War added to the deepening and widespread Muslim sense of humiliation and injustice: the exacerbation of material inequality resulting from the monopolisation by traditional elites of oil newly discovered throughout the region; Western sponsorship of these autocratic states; the establishment of Israel in 1948 and the ensuing demands for Palestinian freedom and statehood vehemently supported throughout the Arab and wider Muslim worlds; the Soviet invasion of Afghanistan in 1979 and the war which, by 1996, had installed the ultra-conservative, anti-Western, Islamist Taliban regime which provided a safe haven for al-Qaeda; the arrival of a huge US-led army in 1990 to defend Saudi Arabia from invasion by Iraq, which had just occupied Kuwait, outraging many Muslims including Osama bin Laden; the chaos and instability which followed the US-led invasion and occupation of Iraq in 2003; and, following the failure of the Arab Spring, the disintegration of Libya, Syria, Iraq and Yemen, into brutal, complex civil wars from 2011 onwards. Broadly speaking Muslims have reacted to these developments in two contrasting ways. On one hand, some have argued that state, society and economy in the Islamic world should accommodate those features of the Western achievement – such as mass education and participation in political processes, industrialisation, the public pursuit of science and technology, the emancipation of women, the rule of law, and the secularisation of the public space – apparently implicated in its triumph and ascendancy. For some, such as Ataturk in Turkey, this required a modern, secular, pluralist, liberal, democratic regime. But for the pan-Arab nationalists, such as Nasser in Egypt, Assad in Syria and Saddam Hussein in Iraq, it suggested secular socialism under an autocratic political party and an authoritarian leader with limited, if any, political pluralism. By contrast, at the other end of the continuum, others maintained that the decline of Islamic civilisation, and its vulnerability to Western penetration, were essentially punishments from God for impiety, the only appropriate response to which was a return to religious fundamentals and the restoration of an ultra-conservative Islamic caliphate governed by Sharia law as at the time of the Prophet. Various labels have been attached to

Terrorism and Counter-Terrorism in the UK  49 this vision – including ‘political Islam’, ‘Islamism’ and ‘Islamic ­fundamentalism’ – some, though not all versions of which, also advocate ‘armed resistance’ and terrorism as means to achieve these ends. Jihadi terrorism worldwide is also vastly more racially, ethnically and linguistically diverse than its Troubles-based parallel. Though dominated by Arabs, its participants come from many races, nationalities and cultures (including Europeans), and speak a variety of languages. However, rival conceptions of what pursuit of these objectives entails, together with complex tribal, sectarian, national and other conflicts including competition between Saudi Arabia and Iran for regional domination, have also pitted the jihadis against each other as much, if not more than, the common cause has united them against everyone else. Islamist terrorism has also resulted in significantly more Muslim than non-Muslim casualties worldwide. For these reasons alone – but there are others – it is a mistake to regard the challenge it presents, and the way in which the rest of the world has responded, as a simple bilateral conflict between Muslims and non-Muslims. For example, global fatalities due to terrorism rose from 6,000 in 2005 to 33,000 in 2014.8 Over this period more fatalities occurred in Nigeria, Syria, Iraq, Afghanistan and Pakistan than in the rest of the world combined. Four of these countries are overwhelmingly Muslim, and in the fifth, Nigeria, Muslims account for about 40 per cent of the population. While there has since been a slight decrease in these figures, the broad characteristics have, nevertheless, remained constant.9 And yet, no country is entirely safe. In addition to the UK, high-profile attacks have already occurred in countries as diverse as Australia, Belgium, Canada, China, Egypt, France, India, Kenya, Russia, Spain, Sweden and the US. By sharp contrast with the Troubles, UK-based jihadi terrorism does not, therefore, derive from a centuries-old domestic conflict lingering in the form of a struggle stimulated by official discrimination suffered by a numerically significant, historically established, indigenous minority. While Muslims have been present in the UK for centuries, until post-Second World War immigration particularly from Pakistan, they were very few in number and even today account for only 4.8 per cent of the UK population.10 Although opinion polls disclose complex attitudes towards the ‘national question’ in Northern Ireland,11 the Catholic ­ minority currently constitutes 41 per cent of the population there12 with a ­ combined republican/nationalist (Sinn Fein/SDLP) vote in the 2017 Assembly 8 University of Maryland National Consortium for the Study of Terrorism and Responses to Terrorism, ‘Patterns of Islamic State-Related Terrorism, 2002–2015’, available at: www.start.umd.edu/ pubs/START_IslamicStateTerrorismPatterns_BackgroundReport_Aug2016.pdf. 9 ibid. 10 Office for National Statistics, Religion in England and Wales 2011, available at: www.ons.gov.uk/ peoplepopulationandcommunity/culturalidentity/religion/articles/religioninenglandandwales2011/ 2012-12-11. 11 Tonge (n 6) 6–7. 12 Northern Ireland Statistics and Research Agency, Census 2011: Key Statistics, December 2012, available at: www.nisra.gov.uk/sites/nisra.gov.uk/files/publications/2011-census-results-key-statisticspress-release-11-december-2012.pdf.

50  Steven Greer elections of 43.4 per cent.13 And, while some Muslims in Britain have undoubtedly suffered material disadvantage and social prejudice, particularly since 9/11, by contrast with Catholics/nationalists in Northern Ireland, there has been no documented history of official discrimination.14 On the contrary, particularly as a result of the Human Rights Act 1998 (HRA), the establishment of the Equality and Human Rights Commission in 2006, and the Equality Act 2010, there has instead been a concerted official attempt to protect the rights of all minorities by law, albeit uneven in impact.

II.  Troubles-Based and UK-Jihadi Terrorism There is no universal consensus on what constitutes terrorism. But there can be little doubt that the activities of Northern Ireland’s paramilitaries and violent jihadis in the UK each fulfil the requirements provided by the Terrorism Act 2000, section 1 of which defines terrorism as action or threats, in pursuit of a political, religious or ideological cause, designed to influence the government or to intimidate the public or a section thereof through serious life-threatening violence, serious damage to property, the creation of a serious risk to public health or safety, or by interfering seriously with or disrupting an electronic system. The activities in question also satisfy the following wider conception: non-state terrorism is violence, and the threat thereof, arising from conflict against or in defence of states by militarily and politically weak, but ideologically committed movements, organisations and individuals, typically involving attacks on officials, public and private institutions and property, and against civilian targets.15 For those struggling against the state, this is intended to deliver a highly visible dramatic message, to create a climate of fear and insecurity, to undermine the state’s credibility and authority, to provoke counterproductive overreaction, to cause or aggravate social division and, in the ensuing crisis, to exploit whatever opportunities might arise for the advancement of other goals including destabilisation, propaganda and recruitment. Non-state terrorists who seek to defend the status quo tend to attack not only their antistate counterparts, but also indiscriminately the communities from which they are deemed to emanate. While this was true of loyalist paramilitaries during the Troubles, no counterpart of anything like the same kind or significance has yet appeared in the UK-jihadi context, some isolated but nonetheless terrible incidents such as the murder of Labour MP Jo Cox in 2016 and a handful of thwarted right-wing plots, notwithstanding. 13 N Dempsey, Northern Ireland Assembly Elections: 2017, House of Commons Library Briefing Paper, CBP7920, 9 March 2017, 3. 14 See, eg, S Gilliat-Ray, Muslims in Britain: An Introduction (Cambridge, Cambridge University Press, 2010). 15 See, eg, C Townshend, Terrorism: A Very Short Introduction, 2nd edn (Oxford, Oxford University Press, 2011).

Terrorism and Counter-Terrorism in the UK  51 However, apart from this, about a dozen dissimilarities between Troublesbased and UK-jihadi terrorism can be observed along the following dimensions ­including several intimately linked to the respective environments discussed above: ideology; goals; intended beneficiaries; national and international profile; type of movement and/or organisation; willingness to cause mass civilian casualties; the weaponisation of suicide; the role of freelancers and loners; and the contribution of existential and mental health crises to recruitment. As already indicated, Troubles-based terrorism was deeply rooted in ­competing versions of secular nation state liberal democracy, while UK-jihadi terrorism derives from a politico-religious Islamist ideology envisaging the governance of state and society by the Sharia. But while the violence of all parties to the Northern Irish conflict was ostensibly instrumental and linked, however problematically, to the pursuit of real world material goals, that of the jihadis is both instrumental, in so far as it concerns the exercise of power particularly in the Islamic world, and symbolic in the sense that it also involves combating and undermining what those who take this view regard as a deviant, decadent and false c­ivilisation. Moreover, while Troubles-based terrorism had some international links, particularly between the IRA and Irish Americans, it was intended primarily to benefit people in Northern Ireland and was anchored in tightly knit and highly segregated republican and loyalist working class communities. For jihadi terrorism, by contrast, it is the other way around. UK jihadis come from a wide range of backgrounds. Some were born in the UK to apparently well-integrated Muslim families. Others have immigrated from abroad, especially from Pakistan. Some are converts from other faiths while others had no previous religious affiliation. Some also led hedonistic, materialist, and/or criminal lives before their recruitment to the jihadi cause. But, unlike their Northern Irish counterparts, none has emerged from neighbouring communities with a history of antagonism towards, and conflict with, each other. Across the globe, Islamist terrorism is also intended to benefit the worldwide Muslim ‘community’ (ummah). Moreover, a few terrible atrocities such as the Omagh bomb aside, the Troubles were characterised by a relentless series of almost daily incidents, each typically involving a few casualties. By contrast, UK-jihadi terrorism involves occasional, yet potentially mass casualty ‘spectaculars’ plus those resulting in small numbers of victims attacked with lowtech weapons such as knives, meat cleavers and motor vehicles. Arguably suicide has been ‘weaponised’ in both the Troubles and by UK-jihadi terrorists but in very different ways. In the early 1980s the deaths of 10 republican prisoners, in the ultimately unsuccessful quest for political status, contributed significantly to the electoral fortunes of Sinn Fein. However, unlike its jihadi counterpart, suicide bombing was never a feature of the Northern Irish conflict. Troubles-based terrorist organisations were also tight, hierarchical and selfconsciously military in structure, while the UK-jihadi equivalent is much looser and based much more upon an inspiring ideal articulated by charismatic leaders than upon formal organisation as such. Moreover, every terrorist organisation in Northern Ireland had a political wing which contested elections, with Sinn Fein,

52  Steven Greer the political branch of the IRA, significantly more successful than any of its loyalist counterparts, particularly since the IRA disbanded in 2005. In 2017, for example, the party received 29.4 per cent of the Northern Irish vote in the Westminster general election,16 and 27.9 per cent of votes cast in the Northern Ireland Assembly elections.17 While freelancers were a rare feature of Troubles-based terrorism, they have been a prominent element in UK-jihadi terrorism. The same is true of mental ill-health, existential and other life crises. Although such vulnerabilities were exploited by the security forces in order to persuade those involved in Troublesbased terrorism to work as informers, these factors do not appear to have had a high profile in recruitment to terrorism itself in this context. Information technology and social media – including the use of these resources for cyber war, recruitment, propaganda, motivation and organisation – are significant features of the UK-jihadi threat, but had no equivalent in the Troubles, not least because the relevant technology was not then available. Finally, because Troubles-based terrorism was highly instrumental in character and conducted largely by more-orless disciplined, if ruthless, paramilitary organisations with political wings, it was always in principle amenable to negotiated resolution because all the key protagonists, and their goals, could readily be identified. The challenge was ‘merely’ to find a viable compromise. This is not remotely the case with UK-jihadi terrorism which lacks both authoritative political representatives with whom negotiations might be conducted and concrete material goals capable of being delivered domestically.

III.  UK Domestic Counter-Terrorism: 1970–2017 The UK’s long experience of domestic counter-terrorism, especially in Ireland, has, typically, involved both legislative and administrative measures and various combinations of coercion and conciliation.18 Responsibility for dealing with the Troubles when they first erupted in the late 1960s lay primarily with the devolved Unionist government at Stormont. The Civil Authorities (Special Powers) Act (Northern Ireland) 1922 (Special Powers Act), provided a ready-to-hand battery of draconian measures including those required to ban associations, assemblies and publications, to curb the display of the Irish tricolour and, most controversially of all, to impose indefinite internment without trial. However, the local administration proved ineffective in managing the sectarian street disturbances, which rapidly degenerated into armed conflict from 1969 onwards, and in addressing

16 V Apostolova et al, General Election 2017: results and analysis, 2nd edn (House of Commons Library Briefing Paper CBP 7979, 2017) 24. 17 Dempsey (n 13) 3. 18 G Hogan and C Walker, Political Violence and the Law in Ireland (Manchester, Manchester University Press, 1989) Pt 1.

Terrorism and Counter-Terrorism in the UK  53 the nationalist grievances which had provoked them in the first place. The introduction of internment in 1971 made matters worse on both dimensions. So, in 1972, the UK Parliament prorogued the Stormont regime and took direct control of the affairs of Northern Ireland. A counter-terrorist policy characterised particularly by ‘Ulsterisation’, ‘police primacy’, ‘criminalisation’ and ‘normalisation’ was then introduced.19 This included reduced reliance on the army (deployed in August 1969) in favour of a higher profile for the police and the locally recruited Ulster Defence Regiment, and phasing out internment in favour of prosecuting those suspected of having committed a terrorist offence in special, single-judge, no-jury, ‘Diplock’ courts, serviced by extended police and army powers of stop, search, seize, arrest and detention. As a result of the Belfast Agreement 1998, which instituted a largely effective if perennially crisis-ridden devolved political solution to the Northern Irish conflict, Troubles-based terrorism significantly declined almost to the point of disappearance. In response, the UK Parliament consolidated, in the Terrorism Act 2000, the piecemeal UK-wide and Northern Ireland-specific legislation of the previous three decades, the provisions in which cover issues such as terrorist offences, property and finance, investigations, arrest and detention, stop, search and seize, plus port and border controls.20 Having been temporarily retained, the Diplock courts were phased out from August 2005, and finally abolished as from July 2007 subject to revival for exceptional cases.21 However, following a hiatus of only a few years, successive Labour, Coalition and Conservative governments were then faced with the challenge of crafting a response to the events of 9/11 and their aftermath. Part-administrative and part-legislative, this is known as CONTEST,22 and is organised round the four ‘Ps’ – Pursue, Protect, Prepare and Prevent. The purpose of Pursue is to stop terrorist attacks in the UK, or against its interests overseas, by detecting, prosecuting and otherwise disrupting those who plan to carry them out. Protect is intended to reduce vulnerability to terrorism as far as national border security, transport systems, national infrastructure, public places, and the UK’s interests abroad are concerned. Prepare aims to mitigate the impact of terrorist attacks which cannot be stopped by bringing them to an end as swiftly and effectively as possible and by increasing the UK’s capacity to recover in the aftermath. The Prevent strategy, by far the most controversial, aims to stop people from becoming terrorists, or from supporting terrorism, in the first place.23 Operating with a local coordinator across 46 priority areas, it seeks to counter terrorist ideology and to challenge 19 T Hadden, K Boyle and C Campbell, ‘Emergency Law in Northern Ireland: The Context’ in A  Jennings (ed), Justice Under Fire: The Abuse of Civil Liberties in Northern Ireland (London, Pluto Press, 1988). 20 See further Walker, Blackstone’s Guide to the Anti-Terrorism Legislation (n 1). 21 Justice and Security (Northern Ireland) Act 2007; Walker, Blackstone’s Guide to the Anti-Terrorism Legislation (n 1) 315–24. 22 The most recent version is HM Government, CONTEST: The United Kingdom’s Strategy for Countering Terrorism (Cm 9608, June 2018). 23 HM Government, Prevent Strategy (Cm 8092, 2011). See also Greer and Bell (n 5).

54  Steven Greer those who promote it (‘counter-radicalisation’), to support cooperative individuals who are particularly vulnerable to being drawn into terrorism (‘de-radicalisation’), and to work with sectors, institutions and individuals where the risk of radicalisation in this sense is considered high. Over 2,790 institutions, including schools, universities and faith groups engage with it, and in the course of 2015 this involved 50,000 people.24 While the four ‘Ps’ may be more memorable than other less alliterative alternatives, arguably, they do not clearly distinguish functions or objectives as clearly as they might. Prepare is, for example, the only one with no preventive element. And, although they were not so formally distinguished by Troubles-related counterterrorist law and policy, the core elements were, nevertheless, covered in some shape or form. Whatever the nomenclature, the key feature common to both contexts was, and remains, the centrality of intelligence. Although the technology for obtaining and processing it has become vastly more sophisticated over the past 50 or so years, the sources – places, people, their communications and their belongings – together with related normative challenges, particularly those relating to privacy and other rights, remain largely the same. In what follows, the principal continuities and discontinuities between the two contexts will be explored along the following intertwined dimensions: constitutional, legal and bureaucratic frameworks; protection; prevention; and criminalisation.

A.  Constitutional, Legal and Bureaucratic Frameworks The key features of the Troubles-based constitutional-legal-bureaucratic framework stemmed from the introduction of direct rule from London, particularly the replacement of the Special Powers Act with a succession of UK-wide and Northern Ireland specific counter-terrorist statutes.25 The Prevention of Terrorism Acts (PTAs), which applied to the whole of the UK, provided powers, among other things, to proscribe organisations, offences related to financing and the provision of other material support for terrorism, extended detention for those suspected of having committed a terrorist offence, and provisions enabling specific people to be prohibited from entering or remaining in Great Britain and to exclude them from Northern Ireland or the UK. The Northern Ireland (Emergency Provisions) Acts (NIEPAs), which applied only to Northern Ireland, governed the Diplock system in the broad sense. Once Stormont was prorogued in 1972, the Home Office and Northern Ireland Office became pivotal with various national and local security and law enforcement agencies responsible for delivery. These included MI5, the police, the army (but only in Northern Ireland), and the criminal justice  and 24 Home Office, Freedom of Information request, 2016 cited in S Khan with T McMahon, The Battle for British Islam: Reclaiming Muslim Identity from Extremism (London, Saqi, 2016) 90. 25 See further, C Walker, The Prevention of Terrorism in British Law (Manchester, Manchester University Press, 1986).

Terrorism and Counter-Terrorism in the UK  55 penal systems of Scotland, Northern Ireland, England and Wales. In the post-9/11 era the Home Office and Cabinet Office have become the key government departments with counter-terrorist strategy overseen by the National Security Council, chaired by the Prime Minister, and a CONTEST board supervising implementation. A National Security Adviser and a Joint Intelligence Committee, each located in the Cabinet Office, and an Office for Security and Counter-Terrorism sited in the Home Office, provide coordination and advice.26 A number of other government departments, plus MI5, the police and the courts, are also involved and, as already indicated, Parliament has also made its own contribution in a series of statutes, the most recent being the Counter-Terrorism and Security Act 2015 (CTSA).27 An important constitutional-legal-bureaucratic development in the exercise of public power throughout the Western world over the past few decades has been the provision of more formal mechanisms of accountability – particularly supervisory, complaints and review institutions and processes of various kinds – the latter of which have been a particularly significant feature of the counter-terrorism landscape in the UK.28 But for several reasons, the HRA, which incorporated the European Convention on Human Rights (the Convention or ECHR) into domestic law from 2000 onwards, has been the most important development on the constitutional front. First, the principal counter-terrorist challenge faced by any rights-respecting liberal democracy, such as the UK, is not only to tackle terrorism effectively, but to do so in a manner which at most restricts, but yet avoids violating, human rights. Prior to the HRA this test was less exacting upon public authorities and the UK Parliament than it has subsequently become. During virtually the entire Troubles era, while public authorities were constrained by some legally protected civil liberties, Parliament could enact, without domestic legal or constitutional impediment, any legislation it saw fit whether it violated human rights or not. Although recourse to the European Court of Human Rights in Strasbourg (ECtHR) was available, this was both remote and slow. Critiques of counter-terrorist law also tended to be couched either in the language of ‘antiimperialism’, largely confined to republicans and fellow-travellers,29 or traditional British civil liberties30 capable of being invoked across the mainstream political spectrum. However, there are, arguably, three core differences between the civil liberties and human rights paradigms, particularly in the counter-terrorism context. 26 F Foley, Countering Terrorism in Britain and France: Institutions, Norms and the Shadow of the Past (Cambridge, Cambridge University Press, 2013) 78–81. 27 Walker, Blackstone’s Guide to the Anti-Terrorism Legislation (n 1) 29–37; J Blackbourn and C  Walker, ‘Interdiction and Indoctrination: The Counter-Terrorism and Security Act 2015’ (2016) 79 Modern Law Review 840. 28 Walker, Blackstone’s Guide to the Anti-Terrorism Legislation (n 1) v, 341–45. See also ch 6 (Anderson) in this collection. 29 See, eg, G Adams, The Politics of Irish Freedom (Dingle, Brandon, 1986) 88–106. 30 See, eg, K Boyle, T Hadden and P Hillyard, Law and State: The Case of Northern Ireland (London, Martin Robertson, 1975).

56  Steven Greer First, prior to the HRA, civil liberties standards were found piecemeal in statute and the common law while their human rights equivalents are now formally listed in the ECHR. Second, typically there is no formal, structured relationship between civil liberties themselves, nor between them and the various public interests with which they might conflict. By contrast, most rights found in the ECHR are formally limited by the legality and democratic necessity tests, the latter of which permits the pursuit of various express legitimate purposes, including national security and the prevention of disorder and crime, provided several criteria such as the principle of proportionality are satisfied. Apart from a tiny handful of ‘nonderogable’ rights – for which there is said to be no exception in any circumstance whatever31 – human rights can also be suspended, to the extent strictly required, in times of war or public emergency threatening the life of the nation. Third, unlike civil liberties, human rights are constitutionally binding upon the Westminster Parliament and the UK’s devolved law-making bodies. The HRA, which applies to the entire UK-jihadi era thus far, makes the successful enactment of manifest and flagrant violations of Convention rights very unlikely in the counter-terrorist or any context. This is because the Convention compliance of draft legislation must be formally considered by Whitehall and Parliament, and the courts can refer legislative provisions which are incompatible with the ECHR back to Parliament for fast-track amendment. Public authorities are also legally required to act in conformity with Convention standards. The ‘Belmarsh case’ provides a clear example of the difference this has made to counter-terrorism.32 Internment without trial is only consistent with the ECHR if it complies with the Article 15 derogation provision which enables states, subject to the limits indicated in the previous paragraph, to suspend any given derogable right, including the right to liberty under Article 5, in time of war or public emergency. During the Troubles the UK had little difficulty in meeting this test, not least because the threat credibly fulfilled the ‘life of the nation’ criterion even though not every part of the UK was equally at risk.33 The Anti-terrorism, Crime and Security Act 2001, passed in the wake of 9/11, included a power to detain indefinitely without trial foreign nationals who could not be deported to their countries of origin, in practice because they might be ill-treated by the authorities there upon arrival. In an attempt to ensure compliance with the ECHR, the UK entered an Article 15 derogation. However, the Supreme Court (then the Judicial Committee of the House of Lords), and later the ECtHR, found that this had not successfully rendered the detention-without-trial regime Convention compliant because it was disproportionate given the nature of the threat, and also discriminatory in that it

31 Whether these are genuinely absolute is open to debate. See, eg, S Greer, ‘Is the Prohibition against Torture, Inhuman and Degrading Treatment Really “Absolute” in International Human Rights Law?’ (2015) 15 Human Rights Law Review 101; C Walker, ‘The Treatment of Foreign Terror Suspects’ (2007) 70 Modern Law Review 427. 32 A and others v Secretary of State for the Home Department [2004] UKHL 56. 33 Ireland v UK Series A No 25 (1978) 2 EHRR 25, 107.

Terrorism and Counter-Terrorism in the UK  57 applied only to foreigners when British nationals were also involved in terrorism, including the jihadi kind.34 The regime was therefore replaced by control orders and Terrorism Prevention and Investigation Measures (TPIMS)35 considered in the ‘Prevention’ section below.

B. Protection ‘Prevent’ was the only one of CONTEST’s four ‘Ps’ to be expressly endorsed by Troubles-related counter-terrorist legislation, the PTAs. ‘Prepare’ and ‘Protect’ were, nevertheless, also addressed. For example, travellers to and from both parts of Ireland and Britain were subject to security checks in ways similar to those now routinely experienced by air travellers the world over. But since Troublesera technology was a lot less sophisticated than it is today, the inconvenience was greater. Long queues of ferry passengers complying with disembarkation formalities at sea ports such as Stranraer in Scotland were, for example, a common sight. In Northern Ireland itself public spaces and buildings were securitised to various degrees, the principal manifestations being fixed army and police checkpoints, especially at ports and the border with the Irish Republic, pervasive mobile patrols, and security perimeters around Belfast and other town centres traversable only after body frisking and bag searches. Outside these zones, private security guards also conducted bag, though not body, searches at the entrance to shops and other buildings. Although security checks were also introduced to some premises elsewhere in Britain, the level of securitisation was significantly lower than in Northern Ireland even at the height of the Troubles. The ‘Protect’ element of CONTEST has similar objectives. However, apart from the routine universal surveillance of aircraft baggage in accordance with international standards, in the UK this has largely been confined so far to traffic management in the vicinity of, and controlled access to, particularly iconic public buildings. There has not yet been a return to routine searches at the entrances to city centre premises which was commonplace in Northern Ireland during the Troubles.

C. Prevention Although not clearly reflected in the official discourse, it is useful to distinguish ‘general’ from ‘agent-specific’ prevention in a manner similar to the more familiar distinction between general and special deterrence drawn in the wider criminal 34 A and others v Secretary of State for the Home Department (n 32); A v UK (2009) 49 EHRR 625. 35 C Walker and A Horne, ‘The Terrorism Prevention and Investigations Measures Act 2011: One Thing but Not Much the Other?’ (2012) 6 Criminal Law Review 421; C Walker, ‘Keeping Control of Terrorists Without Losing Control of Constitutionalism’ (2007) 59 Stanford Law Review 1395.

58  Steven Greer justice context. During the Troubles general prevention was sought largely through the deterrent effects of criminalisation, considered in the following section. By contrast, primarily because the prospect of punishment is unlikely to deter suicide bombers in the post-9/11 context, ‘counter-radicalisation’ and ‘de-radicalisation’ have been preferred instead. The absence of any formal counter-radicalisation programme in the Troubles may also be explained by the distinctive characteristics of the conflict itself. Because it was the most recent instalment in a long, violent struggle over who should govern Ireland, the battle lines had been clearly established, and the ideological struggle conducted in public, at least since the eighteenth century. When most of Ireland achieved its independence in the early 1920s the British lost whatever imperial and/or strategic motives they may have had for opposing it. Partition was agreed as a temporary compromise for antagonisms which, as already indicated, successive British governments (wrongly) believed would fade over time. Therefore, when the Troubles erupted in the late 1960s UK governments tended to see themselves as honest brokers whose principal objection to Irish reunification was that it should not happen against the wishes of the majority of the population of Northern Ireland and especially not as a result of violence. As far as agent-specific preventive initiatives are concerned, some similarities and differences can also be observed between the Troubles and UK-jihadi contexts. Attempts to disrupt, interdict and incapacitate identifiable individuals, plots and conspiracies, and/or to restrict movement, were and are common to both contexts though the modalities differ. For example, the PTAs authorised the exclusion of designated individuals from Great Britain, from Northern Ireland, and from the UK as a whole.36 By contrast, among other things, the CTSA enables the authorities to seize, and temporarily to retain, the travel documents of those at a port reasonably suspected of intending to travel abroad to engage in terrorism outside the UK. In order to facilitate managed re-entry, it also enables British nationals reasonably suspected of involvement in terrorism abroad to be temporarily prevented from returning to the UK.37 Under the post-9/11 control order and TPIMs regimes, for which there was no parallel during the Troubles, designated individuals may also be subject to tailor-made executive controls upon movement, residence, communication and association. Provided certain principles, especially proportionality, are satisfied, the courts have found these to be Convention compliant.38 The deportation of foreign nationals suspected of terrorism, entirely absent from the Troubles, has also been a high-profile feature of the post-9/11 context.39 Targeted assassination, which took two main forms, was a particularly contentious agent-specific preventive feature of counter-terrorism during the Troubles, 36 C Walker, The Prevention of Terrorism in British Law, 2nd edn (Manchester, Manchester University Press, 1992) ch 6. 37 Blackbourn and Walker (n 27) 843–56. See further ch 9 (Blackbourn) in this collection. 38 Walker, Blackstone’s Guide to the Anti-Terrorism Legislation (n 1) ch 7. 39 Walker, ‘The Treatment of Foreign Terror Suspects’ (n 31).

Terrorism and Counter-Terrorism in the UK  59 which has so far not been reproduced in the UK-jihadi context. One manifestation, the so-called ‘shoot to kill’ controversy, involved the fatal shooting between 1982 and 1985, of over 30 mostly terrorist suspects by the security forces, the circumstances of which were hotly disputed, particularly concerning whether they could have been arrested instead.40 These events should not, however, be confused with the current policy of shooting to kill those who pose an imminent risk of serious harm to others, especially from suicide bombing, provided this results from the use of no more force than absolutely necessary as permitted by Article 2(2) ECHR. A second manifestation concerned alleged collusion between the security forces and loyalist paramilitaries, including the active participation of off-duty soldiers and police officers, the supply of security force weapons and intelligence, blind eyes being turned, and/or police investigations being hindered. Some of these claims were later confirmed by the official inquiries conducted by Sir John Stevens in the early 1990s and early 2000s.41 However, apart from the attempt to recruit informers – a universal feature of most if not all armed conflicts – there was, by contrast with UK-jihadi-related counter-terrorism, no attempt formally to de-radicalise terrorists or potential terrorists during the Troubles. Indeed, Northern Ireland is expressly excluded from the current otherwise UK-wide ‘Prevent duty’, imposed by section 26 of the CTSA upon schools, universities, the NHS and other institutions, to ‘have due regard to the need to prevent people from being drawn into terrorism’. According to the guidelines, although Prevent principles are nevertheless applicable to ­counter-terrorism in Northern Ireland, most relevant policy areas are the responsibility of the devolved administration with whom the authorities in the rest of the UK are said to cooperate very closely.42 It has been alleged that the Prevent strategy constitutes a thinly disguised form of spying and intelligence gathering, driven by official Islamophobia and racism, that it legitimises Islamophobia in society at large, criminalises harmless, law-abiding Muslim communities, violates the rights to privacy, freedom of expression and non-discrimination, and has a chilling effect on public debate. In higher education it is also said to seriously threaten academic freedom, to stifle campus activism, to require staff to engage in racial profiling, and to jeopardise safe and supportive learning environments. But recent research shows that, though such misconceptions may be real, they rest largely upon myth, misunderstanding, muddled thinking and misinformation.43 There is no credible evidence either that Troubles-based counter-terrorism turned the Irish in mainland Britain into a community under pervasive and systematic official suspicion or that this is true of Muslims post 9/11. Indeed, these claims suffer

40 A Jennings, ‘Shoot to Kill: The Final Courts of Justice’ in A Jennings (ed), Justice Under Fire: The Abuse of Civil Liberties in Northern Ireland (London, Pluto Press, 1988). 41 See, eg, Sir John Stevens, Stevens Enquiry: Overview and Recommendations (17 April 2003). 42 Prevent Strategy (n 23) para 5.9. 43 Greer and Bell (n 5).

60  Steven Greer from a series of, as yet unresolved, analytical, methodological, conceptual, logical, empirical, evidential, interpretive, normative and policy-related difficulties.44

D. Criminalisation A key feature of counter-terrorism the world over is the criminalisation of terrorist activity by specific criminal offences.45 Although there have been some differences between the range produced in the Troubles and UK-jihadi contexts, the characteristics of the criminal justice processes themselves have been more significant. Throughout the Troubles terrorist offences committed in England, Scotland or Wales were tried in the regular criminal courts according to routine criminal procedure, a practice which continues post 9/11. However, as already indicated, in order to phase out internment, from 1973 onwards offences ‘scheduled’ in the NIEPA were tried in Belfast’s single-judge, non-jury, Diplock courts. This had four principal consequences with no counterpart in the UK-jihadi context so far. First, heavy reliance by the Diplock courts upon confessions led to the abuse of suspects in police custody.46 Second, when this practice was exposed and stopped, a series of mass trials on the testimony of ‘supergrasses’, elicited by the offer of inducements such as immunity from prosecution or reduced sentences for their own offences, then ensued.47 However, third, the only lasting contribution the supergrass process made to the Diplock conviction rate was to provide an alternative means of obtaining confessions. The fourth consequence was the hunger strike over the phasing out of ‘special category status’ for those convicted by the Diplock courts which, as already indicated, led to the deaths of 10 republican prisoners. But this is not to say there have been no alterations at all to trial processes in Britain in response to the jihadi threat. The Special Immigration Appeals Commission was established as a superior court of record in 1997 to deal with appeals from those deprived of British citizenship or subject to deportation orders made by the Home Secretary under various statutory powers, typically, post 9/11, in relation to matters of national security. Trials may include secret evidence only accessible to judges and the security-vetted special advocates limited in how much they can disclose to clients.48

44 S Greer, ‘The Myth of the “Securitized Muslim Community”: The Social Impact of Post-9/11 Counterterrorist Law and Policy in the West’ in G Lennon and C Walker (eds), The Routledge Handbook of Law and Terrorism (London, Routledge, 2015). 45 See Walker, Blackstone’s Guide to the Anti-Terrorist Legislation (n 1) ch 6. 46 D Walsh, The Use and Abuse of Emergency Legislation in Northern Ireland (London, The Cobden Trust, 1983) 41–78. 47 S Greer, Supergrasses: A Study in Anti-Terrorist Law Enforcement in Northern Ireland (Oxford, Clarendon Press, 1995). 48 See ch 7 (Jackson) in this collection.

Terrorism and Counter-Terrorism in the UK  61 Finally, a stark difference between counter-terrorist trials during the Troubles and those in mainland Britain today is the absence from the latter of any notorious miscarriages of justice so far. This does not necessarily mean that nobody has been wrongfully convicted in the current context. But it is clear that, if any have been, no campaigns of the kind which eventually led to the quashing of the convictions of the Birmingham Six and Guildford Four – which, incidentally, occurred in the routine English criminal justice rather than in the Diplock system – have yet appeared.49

Conclusion While all three dimensions of the topic in hand – socio-political background, type of terrorism, and counter-terrorist law and policy – exhibit both similarities and differences, the differences are greatest on the first, while the last displays the most complex mix of continuity and discontinuity. The respective socio-political backgrounds could hardly be more dissimilar. The Troubles were essentially a local conflict over whether Northern Ireland should be part of the UK or the Republic of Ireland, conducted within the parameters of modern European liberal democracy between protagonists who, in spite of their protestations to the contrary, share a great deal in common. By contrast, UK-jihadi terrorism is a national manifestation of a global phenomenon, motivated by the goal of establishing an Islamic caliphate governed by a particularly uncompromising interpretation of the Sharia ultimately spanning the globe. Conducted by Muslims from many races, ethnicities, languages and nationalities, this is compromised by multiple tribal, sectarian and other rivalries which divide Muslims from each other as much as, if not more than, it divides Muslims from everyone else. While the activities of both Northern Irish paramilitaries and UK-jihadis satisfy any credible conception of terrorism, the respective kinds – including their ideology, goals, intended beneficiaries, national and international profile, type of movement and/or organisation – also reflect the background characteristics of the two conflicts. Other differences concern the willingness to cause mass civilian casualties, the weaponisation of suicide, the role of freelancers and loners, and the contribution of existential and mental health crises to recruitment. Troubles-based and UK-jihadi-related counter-terrorism exhibit a complex amalgam of resemblance and difference. In addition to increased international cooperation, over the past half century or so the key domestic trends have included the ‘growing profusion, scope and complexity’ of counter-terrorist law,50 coupled with a more sustained official attempt to integrate its various elements, increasing emphasis upon protection and prevention, enhanced mechanisms of

49 See

ch 12 (Roach) in this collection. Blackstone’s Guide to the Anti-Terrorism Legislation (n 1) v.

50 Walker,

62  Steven Greer accountability especially as provided by the HRA, and a decisive shift in official policy from attempting to ‘hold the ring’ until a political solution is found, as during the Troubles,51 to managing risk and increasing public resilience, as in the UK-jihadi context. The collection, processing and use of intelligence were and remain central and there are also significant differences between the extent to which everyday life was securitised in Northern Ireland at the height of the Troubles compared with that currently in the UK as a whole. But there is no credible evidence that counter-terrorist laws turned the Irish, or have turned Muslims, into ‘securitised communities’ in mainland Britain. The characteristics of the two conflicts have also resulted in differences in preventive strategies, with general prevention in Troubles-related counterterrorism focused primarily upon the deterrent effect of criminalisation. Suicide bombing has, however, undermined this in the post-9/11 era, requiring more concerted policies of ‘counter’ and ‘de-radicalisation’. Although there have been attempts in both contexts to disrupt, interdict, incapacitate and restrict the activities of specific individuals, these have taken different forms in each. There has, for example, been no targeted assassination controversy in the UK-jihadi context. By contrast, the deportation of foreign nationals suspected of terrorism has had a high profile post 9/11 but had none at all in the Troubles. Nor, largely because the dynamics of the conflict militated against it, was there any counterpart to the current policy of de-radicalisation. Whatever the type of terrorism, the key challenge in countering it in the UK lies in the effective management of two competing sets of risks. On one hand, terrorism itself poses a threat to life, limb, property, public institutions, social systems and community cohesion. But, second, unless properly conceived and implemented, counter-terrorism potentially threatens human rights, social integration and public confidence in the state. Since, for the reasons given, there can be no domestic political solution to UK-jihadi-related terrorism, the key to the current challenge at the national level lies in protection and prevention broadly conceived. This, in turn, depends upon the effective, simultaneous management of many elements on multiple dimensions: political, policing, criminal justice, social justice, ideological, cultural, educational, communal, and so on. This is not easy. But, in addition to the appropriate gathering, management and use of information, intelligence and evidence, and ‘up stream’ diversion before atrocities are committed, the state’s primary responsibilities are to act at all times in a manner consistent with democracy, human rights and the rule of law and to involve, communicate with, and listen to all relevant parties committed to these values. Through his rigorous and meticulous scholarship Clive Walker has mapped the contours of this complex landscape like no other: a hard act to follow.

51 P Dixon, ‘British Policy Towards Northern Ireland 1969–2000: Continuity, Tactical Adjustment and Consistent “inconsistencies”’ (2001) 3 British Journal of Politics and International Relations 340.

5 Strategies for Countering Terrorism: An Australian Perspective keiran hardy and george williams Introduction Throughout 2017, the terrorist organisation Islamic State (IS) experienced ­significant military losses in the Middle East,1 but the global threat of terrorism remained acute. A series of attacks across the United Kingdom (UK) and ­Western Europe generated heightened fears of when – not if – another attack would succeed. The use of vehicles and knives in these attacks is particularly troubling, as the means of attack are difficult to regulate and the attacks require little p ­ reparation.2 In addition to these ‘low-tech’ attacks, suicide bombings in ­Manchester and ­Brussels reveal more complex preparation for terrorism, possibly requiring overseas assistance.3 The threat of terrorism within Australia, as elsewhere, is twofold. First, Australia faces a threat from returning foreign fighters. In 2017, around 100 Australians were still fighting for IS overseas, with some 40 already returned.4 Second, Australia faces a threat of home-grown terrorism from groups and individuals who are inspired by IS and its actions overseas. In response to these threats, the Australian government since September 2014 has maintained its official threat level as ‘Probable’.5 This means there is credible intelligence that individuals and groups possess the intention and capability to carry out a terrorist attack in Australia.6 1 Saeed Kamali Dehghan, ‘Raqqa recaptured from Islamic State by US-backed forces’ The Guardian (17 October 2017); Amanda Erickson, ‘What the Islamic State is saying about its loss of Mosul’ Washington Post (12 July 2017). 2 See, eg, Corri Zoli, ‘Is there any defense against low-tech terror?’ Foreign Policy (2 October 2017). 3 Nazia Parveen, ‘Manchester bombing: police say Salman Abedi did not act alone’ The Guardian (6 July 2017); Andrew Higgins and Kimiko de Freytas-Tamura, ‘In Brussels bombing plot, a trail of dots not connected’ New York Times (26 March 2016). 4 David Wroe, ‘ASIO chief Duncan Lewis predicts “polarising and dividing” problem of returning foreign fighters’ Sydney Morning Herald (23 March 2017). 5 Australian Government, Australian National Security: National Terrorism Threat Advisory System (2017), available at: www.nationalsecurity.gov.au/Securityandyourcommunity/Pages/NationalTerrorism-Threat-Advisory-System.aspx. 6 ibid.

64  Keiran Hardy and George Williams While Australia has not experienced the same frequency or lethality of attacks as the UK and Europe, actions described as terrorism have claimed innocent Australian lives. In December 2014, two hostages were killed after a 16-hour siege at Sydney’s Lindt café.7 In October 2015, a 15-year-old Sydney teenager shot and killed a police accountant in broad daylight on a city street.8 In mid-2017, a former prisoner who had been acquitted of terrorism charges shot dead one man and held a sex worker hostage before being shot dead by police.9 Overall, since the terror threat level was raised in 2014, more than 70 suspects have been arrested and charged as a result of over 30 counter-terrorism operations by State and federal police.10 In this chapter we assess the strategy underlying Australia’s responses to terrorism. By ‘strategy’, we mean two things. First, we mean the choices made by a national government as to how the threat of terrorism can best be countered – this includes the use of criminal prosecution, control orders and community-based programmes for countering violent extremism. Second, we mean the longer-term objectives overarching these responses to terrorism – such as the need to prevent terrorism, counter terrorist ideology and build community ‘resilience’.11 These meanings of strategy can be contrasted with tactical decisions as to how government agencies should respond to a specific threat from an individual or terrorist group. A core message throughout Clive Walker’s writings is that both the threat of terrorism and state responses to that threat are likely to remain a permanent feature of the legal landscape.12 Because of this, states need to develop counterterrorism strategies that are rational, effective and provide sufficient protection for individual rights to be sustainable over the long term.13 Key themes in Walker’s

7 See State Coroner of New South Wales, Inquest into the Deaths Arising from the Lindt Café Siege: Findings and Recommendations (Report) (May 2017). 8 Nick Ralston, ‘Farhad Jabar captured giving Islamic State salute before Curtis Cheng shooting’ Sydney Morning Herald (1 May 2017); Michelle Brown and Jessica Kidd, ‘Curtis Cheng murder: Man who planned fatal shooting pleads guilty to terrorist act’ ABC News (Sydney, 19 May 2017). 9 Emma Younger and Stephanie Anderson, ‘Brighton siege gunman Yacqub Khayre made bomb threat, inquest hears’ ABC News (Sydney 22 August 2017); ‘Brighton siege: Melbourne police launch terror probe, investigate if escort was used to lure officers’ ABC News (Sydney, 6 June 2017). 10 ‘Sydney terror raids: Police scour raided homes for third day over alleged plane terror plot’ ABC News (Sydney, 1 August 2017). 11 See, eg, Australian Government, Counter-Terrorism White Paper: Securing Australia – Protecting Our  Community (2010); C Walker, ‘Legal Perspectives on Contingencies and Resilience in an Environment of Constitutionalism – An Overview’ (2014) 18 International Journal of Human Rights 119. 12 See C Walker, ‘Militant Speech About Terrorism in a Smart Militant Democracy’ (2011) 80 Mississipi Law Journal 1395, 1397 (‘Militant Speech’); C Walker and J Rehman, ‘“Prevent” Responses to Jihadi Extremism’ in VV Ramraj et al (eds), Global Anti-Terrorism Law and Policy, 2nd edn (Cambridge, Cambridge University Press, 2012) 267; C Walker, ‘Clamping Down on Terrorism in the United Kingdom’ (2006) 4 Journal of International Criminal Justice 1137, 1150 (‘Clamping Down on Terrorism’). See also ch 18 (Walker) in this collection. 13 Walker, ‘Militant Speech’ (n 12) 1397; Walker, ‘Clamping Down on Terrorism’ (n 12) 1142.

Strategies for Countering Terrorism  65 work remain pertinent, including ‘neighbour terrorism,’14 ‘all-risks policing’,15 the use of intelligence as evidence,16 and the challenges that statutory inventions like control orders create for criminal justice processes and constitutionalism.17 In particular, part of his legacy has been to encourage legal scholars to examine community-based policy programmes for countering violent extremism.18 Tying together these wide-ranging contributions is Walker’s dedication to long-standing procedural protections across the criminal justice system. A discussion of Australian counter-terrorism law and policy drawing on Walker’s scholarship is apt. As the Australian government has looked closely to the UK when enacting its own counter-terrorism laws,19 so Australian scholars look closely to Walker’s scholarship when seeking to understand the UK’s responses to terrorism. Indeed, Walker’s scholarship is itself frequently comparative. When examining Australia’s counter-terrorism laws,20 he has approached the subject with as much knowledge and context as any resident Australian. Based on Walker’s important contributions, we shape what follows into two parts. In part I, we trace the development of counter-terrorism strategy in Australia from the 9/11 attacks to the present day. We divide this into four periods: responses to 9/11; responses to the 2005 London bombings’; a period of relative peace preceding the threat of foreign fighters; and responses to the current threat. Historically, the trajectory of counter-terrorism law and policy in Australia is much shorter than in the UK, but there are many common themes. We draw comparisons with the UK experience, drawing on Walker’s scholarship relating to ‘panic legislation’,21 control orders and countering violent extremism. In part II, we ask three key questions about Australia’s counter-terrorism strategy. We focus on responses to the current threat, but also draw on Australia’s experience since 9/11. The three questions reflect Walker’s approach to counterterrorism scholarship.22 First, we consider whether Australia’s counter-terrorism strategy is rational. Here, we consider the balance struck between law and policy measures and the political benefits of reactive, short-term responses to ­terrorism. Second, we consider whether the strategy is effective in countering terrorism. Here, we assess the practical difficulties in responding with criminal prosecution, 14 C Walker, ‘Neighbor Terrorism and the All-Risks Policing of Terrorism’ (2009) 3 Journal of National Security Law & Policy 121, 165 (‘Neighbor Terrorism’). 15 ibid. See further ch 11 (Lennon) in this collection. 16 C Walker, ‘Intelligence and Anti-Terrorism Legislation in the United Kingdom’ (2005) 44 Crime, Law and Social Change 387. 17 C Walker, ‘Keeping Control of Terrorists Without Losing Control of Constitutionalism’ (2007) 59 Stanford Law Review 1395. 18 See especially, Walker and Rehman (n 12). 19 K Roach, ‘The Post-9/11 Migration of Britain’s Terrorism Act 2000’ in S Choudhry (ed), The Migration of Constitutional Ideas (Cambridge, Cambridge University Press, 2006). 20 See, eg, C Walker, ‘The Reshaping of Control Orders in the United Kingdom: Time for a Fairer Go, Australia!’ (2013) 37 Melbourne University Law Review 143 (‘Reshaping of Control Orders’). 21 Walker, ‘Clamping Down on Terrorism’ (n 12) 1142. 22 See, eg, Walker, ‘Neighbor Terrorism’ (n 14) 165; Walker, ‘Clamping Down on Terrorism’ (n 12) 1146.

66  Keiran Hardy and George Williams control orders and countering violent extremism programmes. Finally, we consider whether Australia’s strategy sufficiently protects individual rights. In this section, we focus on new offences introduced in response to IS-related terrorism. From the following discussion, it is clear that the Australian government has yet to develop a counter-terrorism strategy which is sustainable over the long term. Mitigating the risks of terrorism while avoiding the dangers of ‘panic legislation’ remains an elusive goal. In particular, despite the need to address both criminal activity and the underlying causes of terrorism, the Australian government is yet to develop a counter-terrorism strategy which effectively balances these objectives.

I.  From 9/11 to Foreign Fighters In this section we explain four periods of counter-terrorism strategy in Australia. At each stage, we consider the core components of Australia’s law and policy responses to terrorism, what these measures were designed to achieve, and how they developed in response to ongoing events. Overall, the strategic focus of Australian counter-terrorism has been weighted significantly towards prosecution through coercive pre-emptive measures.23 In this regard, Australia has much in common with the UK and other jurisdictions.24 However, in contrast to the UK, countering violent extremism remains more of an afterthought than a core component of Australia’s counter-terrorism strategy.

A.  Responses to 9/11 Prior to 9/11, Australia had no federal counter-terrorism laws. In all Australian jurisdictions aside from the Northern Territory,25 acts of politically motivated violence were dealt with under the traditional criminal law. This was not surprising given that Australia’s history of terrorism included only isolated incidents, such as the 1978 bombing attack at Sydney’s Hilton Hotel.26 There are many prior examples of national security legislation that conferred broad powers on government agencies, but these were typically found on the statute books during the First and Second World Wars.27 As such, they were considered to be emergency powers of more definite duration. 23 T Tulich, ‘Prevention and Pre-Emption in Australia’s Domestic Anti-Terrorism Legislation’ (2012) 1 International Journal for Crime and Justice 52. 24 See, eg, J McCulloch and S Pickering, ‘Pre-Crime and Counter-Terrorism: Imagining Future Crime in the “War on Terror”’ (2009) 49 British Journal of Criminology 628. 25 Criminal Code Act 1983 (NT) pt III, div 2. Those provisions were modelled on the Prevention of Terrorism (Temporary Provisions) Act 1974 (UK) c 56. 26 See J Hocking, Terror Laws: ASIO, Counter-Terrorism and the Threat to Democracy (Sydney, UNSW Press, 2004) 120–38. 27 See further, G Williams, ‘A Decade of Australian Anti-Terror Laws’ (2011) 35 Melbourne University Law Review 1136, 1138.

Strategies for Countering Terrorism  67 The attacks of September 11, and the resulting Security Council Resolution 1373,28 provided the catalyst for Australia to enact its first national counter-­ terrorism laws. In the years since, it has become clear that these laws are not a short-term aberration within Australia’s legal system, but rather a permanent feature of the law. The number of counter-terrorism laws enacted in Australia is extraordinary. Prior to the threat of foreign fighters, the Australian Parliament passed 61 pieces of legislation in response to terrorism.29 The vast majority of these laws were passed during the term of the Conservative Howard government from 2002 to 2007. During that period, a new counter-terrorism law was passed by the federal Parliament every 6.7 weeks.30 One expert has characterised this as a form of ‘hyper-legislation’.31 The starting point of this extensive law-making was a package of five Bills introduced into the federal Parliament in March 2002.32 The Bills created a comprehensive counter-terrorism law framework – which remains substantially unchanged – and yet they passed the House of Representatives in a single day. This began a clear trend of enacting ‘panic legislation’ in response to terrorism.33 These initial responses were modelled closely on the UK’s Terrorism Act 2000 (TA2000). They introduced a similar statutory definition of terrorism,34 offences based on the proscription of terrorist organisations,35 and offences targeting early preparatory activities.36 These included a catch-all offence for doing ‘any other act’ in preparation for terrorism.37 As in the UK, Australia’s approach to counter-­terrorism was (and remains) heavily pre-emptive, focusing on criminal prosecution as a means of disrupting terrorist plots before they reach an advanced stage.38 Soon after these initial responses, a more extraordinary Australian invention was introduced into the federal Parliament. As amended in 2003, part III division III of the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act) allows the Director-General of ASIO, Australia’s domestic intelligence agency, to apply to the federal Attorney-General for questioning and detention

28 SC Res 1373, UN SCOR, 56th sess, 4385th mtg, UN Doc S/RES/1373 (28 September 2001). 29 G Williams, ‘The Legal Legacy of the War on Terror’ (2013) 12 Macquarie Law Journal 3, 7. 30 Williams, ‘A Decade of Australian Anti-Terror Laws’ (n 27) 1145. 31 K Roach, The 9/11 Effect (Cambridge, Cambridge University Press, 2011) 309. 32 Enacted as the Security Legislation Amendment (Terrorism) Act 2002 (Cth); Suppression of the Financing of Terrorism Act 2002 (Cth); Telecommunications Interception Legislation Amendment Act  2002 (Cth); Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002 (Cth); Border Security Legislation Amendment Act 2002 (Cth). 33 See A Lynch, ‘Legislating with Urgency: The Enactment of the Anti-Terrorism Act [No 1] 2005’ (2006) 31 Melbourne University Law Review 747. 34 Criminal Code Act 1995 (Cth) s 100.1. 35 ibid div 102. 36 ibid div 101. 37 ibid div 102. 38 See Tulich (n 23).

68  Keiran Hardy and George Williams warrants. Under these powers, a person may be questioned in eight-hour blocks up to a maximum of 24 hours where this would ‘substantially assist the collection of intelligence that is important in relation to a terrorism offence’.39 A person may be detained for up to a week for questioning where there are reasonable grounds to believe that he or she will alert another person involved in a terrorism offence, not appear before the ASIO for questioning, or destroy evidence.40 Importantly, unless the person is under 18,41 they need not be suspected of any involvement in terrorism. This means the powers could be used against family members, journalists or innocent bystanders. It is an offence punishable by five years’ imprisonment to refuse to answer ASIO’s questions, or to disclose information about the ­questioning and detention.42 These powers reflect a core difference between the UK and Australian legal systems and what is possible in their respective counter-terrorism strategies. Australia is the only democratic nation in the world without a national human rights law such as a human rights Act or Bill of Rights.43 This means there is no domestic reference point for gauging the impact of new counter-terrorism laws on human rights or for post-enactment judicial review. The Australian Parliament has since created a parliamentary committee which allows for pre-enactment scrutiny of Bills on human rights rounds.44 However, this did not exist at the time of these earlier responses to terrorism, and it has little impact in the face of political and community pressure to respond strongly to the threat.45 Judicially enforceable protections for the right to liberty, fair trial and free speech make extraordinary powers like ASIO’s questioning and detention warrants unthinkable in jurisdictions with a national human rights law.

B.  Responses to 7/7 Following the London bombings of July 2005, the Australian government once more looked closely to the UK in developing its own counter-terrorism­ strategy. However, in contrast to the UK, this period did not see the same focus on responding to ‘neighbour terrorism’ through policy programmes for countering violent extremism.46 Instead, Australia expanded its focus on coercive pre-emptive ­measures.

39 Australian Security Intelligence Organisation Act 1979 (Cth) s 34D(4)(a). 40 ibid s 34F(4)(d). 41 ibid s 34ZE. 42 ibid s 34ZS. 43 G Williams, A Charter of Rights for Australia (Sydney, UNSW Press, 2007) 16–17. 44 See G Williams and D Reynolds, ‘The Operation and Impact of Australia’s Parliamentary Scrutiny Regime for Human Rights’ (2015) 41 Monash University Law Review 469. 45 ibid. 46 Walker and Rehman (n 12); Walker, ‘Neighbor Terrorism’ (n 14).

Strategies for Countering Terrorism  69 The major development in this period was the introduction of control order powers.47 Like the UK’s former regime and its current Terrorism and Prevention Investigation Measures (TPIMs), Australian control orders allow for a number of restrictions and obligations to be imposed on a person for the purpose of preventing a terrorist act. These can include requirements to abide by curfews, report to police at regular intervals, and wear an electronic monitoring bracelet.48 As outlined below, the grounds and purposes for seeking control orders have since been expanded. Australia’s other major response to the London bombings was to introduce a Preventative Detention Order (PDO) regime. Like ASIO’s questioning and detention warrant powers, these are a more extraordinary Australian invention. The PDO powers allow for a person to be detained for up to 48 hours – and up to 14  days under State legislation – for the purpose of preventing an ‘imminent’ terrorist act, or to preserve evidence in relation to a recent attack.49 Detainees may contact a family member and employer, but only to say that they are ‘safe but not able to be contacted for the time being’.50 As with ASIO’s warrant powers, it is an offence punishable by five years’ imprisonment for the person to reveal anything about their detention.51 Australia therefore went further in some respects than the UK in responding to the London bombings with new legal powers. In the UK, the publication of the CONTEST and Prevent strategies also signified an important shift towards countering the underlying causes of terrorism.52 While the Australian government recognised the importance of such approaches, this shift was not fully replicated in practice. In August 2005, then Prime Minister John Howard and other Commonwealth ministers met Islamic community leaders following the London attacks. A  joint ‘Statement of Principles’ was published from this meeting, but that document said little other than that the government was committed to working with Muslim communities to counter violence and promote democratic values.53 The Howard government also created a Muslim Community Reference Group, but this was quickly disbanded after accusations that it was not representative and maintained a heavy security focus.54 A National Action Plan included more

47 Criminal Code Act 1995 (Cth) div 104. 48 ibid s 104.5(3). 49 ibid s 105.1; Terrorism (Police Powers) Act 2002 (NSW) pt 2A. 50 Criminal Code Act 1995 (Cth) s 105.35. 51 ibid s 105.41. 52 Home Office, Countering International Terrorism: The United Kingdom’s Strategy (Home Office, 2006); Home Office and Department for Communities and Local Government, The Prevent Strategy: A Guide for Local Partners in England – Stopping People Becoming or Supporting Terrorists and Violent Extremists (2008). 53 Australian Government, Australian Government Meeting with Islamic Community Leaders: Statement of Principles (23 August 2005). 54 J Topsfield, ‘“Separatist” ethnic body under attack’ The Age (Melbourne, 28 November 2006).

70  Keiran Hardy and George Williams community projects to counter extremism and radicalisation, though much of this fell under existing multiculturalism policy rather than being specifically directed at counter-terrorism.55 These differences can be explained in part by the lack of a successful terrorist attack on Australian soil. As Walker explains, the London bombings caused a significant shift in focus for UK counter-terrorism strategy: from international terrorism to ‘neighbour terrorism’, in which UK citizens and long-term foreign residents became the more immediate threat.56 While a number of terrorist plots were disrupted within Australian borders around this time, Australia’s experience of terrorism by this stage was still largely international. This produced a lesser focus on the underlying causes of home-grown extremism.

C.  Pre-Foreign Fighters The next key period began with the election of the Rudd Labor government in 2007 and ended with the election of the Abbott government in September 2013, shortly before the rise of IS. This period is similar to that following the 2010 election of the Cameron government, in which major reviews were conducted into the UK’s counter-terrorism laws and its controversial Prevent strategy.57 The election of the Rudd government in 2007 saw a significant drop in Australia’s ‘hyper-legislating’ for terrorism.58 Amendments that were introduced during this period were minor, or suggested a growing focus on accountability. In 2010, legislation was passed to create the office of the Independent National Security Legislation Monitor (INSLM), which was modelled on the UK’s Independent Reviewer of Terrorism Legislation.59 The INSLM assesses whether Australia’s counter-terrorism laws contain appropriate safeguards which remain proportionate and necessary.60 Amendments to Australia’s existing counter-terrorism laws were not as significant as those introduced in the UK around this time. Most obviously, Australia retained its controversial control order powers, whereas the UK moved towards its less invasive TPIM regime.61 This period is nonetheless significant for two reasons. First, major reviews of Australia’s counter-terrorism laws were published by the INSLM and the Council 55 Australian Government Department of Immigration and Citizenship, Living in Harmony: Program Review (2008) 5. 56 Walker, ‘Neighbor Terrorism’ (n 14) 123–24. 57 See H Fenwick and G Phillipson, ‘UK Counter-Terror Law Post-9/11: Initial Acceptance of Extraordinary Measures and the Partial Return to Human Rights Norms’ in VV Ramraj et al (eds), Global Anti-Terrorism Law and Policy, 2nd edn (Cambridge, Cambridge University Press, 2012) 481. 58 Williams, ‘A Decade of Australian Anti-Terror Laws’ (n 27) 1145. 59 Independent National Security Legislation Monitor Act 2010 (Cth). 60 ibid s 6. 61 Terrorism Prevention and Investigation Measures Act 2011 (UK). See Walker, ‘Reshaping of Control Orders’ (n 20).

Strategies for Countering Terrorism  71 of Australian Governments Counter-Terrorism Review Committee (COAG Review).62 Both these reviews recommended the repeal of PDOs, with the COAG Review describing the powers as akin to something from a ‘discredited totalitarian regime’.63 The INSLM recommended that control orders ‘simply be abolished’ because they are ‘not effective, not appropriate and not necessary’.64 He also recommended the repeal of ASIO’s detention warrant powers.65 Importantly, both the COAG and INSLM reviews relied on classified information from the police and security services; their conclusions were not reached merely on principled grounds. In discussing PDOs, for example, the COAG Review cited multiple submissions from police that the powers had not been used, and were not likely to be used, because the application process was too complex and detainees could not be questioned for investigation.66 Second, the Rudd government emphasised the importance of developing a national strategy to address the underlying causes of terrorism. In his 2008 National Security Statement to the federal Parliament, Rudd emphasised the need for Australia to develop its ‘soft power’ responses.67 This was reflected in a 2010 Counter-Terrorism White Paper, which included a short strategy for building community ‘resilience’ to terrorism.68 A community-based grants programme, overseen by the Attorney-General’s department, allocated funding to projects for countering violent extremism. Were it not for the threat of IS and the election of the Abbott government, it is likely that Australia would have taken a very different approach to counterterrorism from this period onwards. Similar to the UK, the Australian government around 2010 began emphasising accountability, winding back controversial legal powers, and improving community-based responses to terrorism. In addition, by the time the INSLM and COAG reviews were published, the legal powers for control orders, PDOs and ASIO’s questioning and detention powers were soon to expire under sunset clauses. Given the strong and consistent recommendations of those reviews, it is possible that these controversial powers would have been substantially amended. Parliament may even have allowed some aspects of these powers to lapse completely. Such changes could have seen exactly the type of strategy that Walker has called for: rational, effective and protective of individual rights.

62 Independent National Security Legislation Monitor (INSLM), Declassified Annual Report (2012); Council of Australian Governments (COAG), Council of Australian Governments Review of CounterTerrorism Legislation (2013) (COAG Review). 63 INSLM (n 62) 44; COAG (n 62) 68. 64 INSLM (n 62) 4. 65 INSLM (n 62) 106. ASIO’s questioning and detention warrant powers were not within the scope of the COAG Review. 66 COAG (n 62) 69–70. See also INSLM (n 62) 56–57. 67 Commonwealth, Parliamentary Debates, House of Representatives, 4 December 2008, 12552-5. 68 Australian Government, Counter-Terrorism White Paper (n 11) 63–68.

72  Keiran Hardy and George Williams

D.  Foreign Fighters When IS declared its caliphate in June 2014, Australia’s counter-terrorism strategy changed direction once more. What was turning out to be a more balanced, accountable approach to counter-terrorism took a sharp turn back towards the pre-emptive, problematic approach of previous years. Indeed, in some respects, Australia’s responses to the current threat have gone further than the Howard government’s most controversial responses to terrorism. Australia’s legal responses to foreign fighters came in three initial stages. First was the National Security Legislation Amendment Act (No 1) 2014 (Cth) (NSLAA), which increased ASIO’s intelligence-gathering powers and strengthened offences for intelligence whistle-blowing. Next was the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2015 (Cth), which focused directly on foreign fighters. This second Act extended the sunset clauses on control orders, PDOs and ASIO’s questioning and detention warrant powers to September 2018. It also expanded the grounds on which control orders could be sought – to include support and facilitation of terrorism, and hostile activity overseas – and it updated criminal offences for engaging in and preparing foreign incursions.69 It introduced two new offences: one for entering or remaining in a declared area, and another for advocating terrorism.70 The declared area offence, found in section 119.2 of the Criminal Code, is another extraordinary invention. It provides a maximum penalty of 10 years’ imprisonment where a person merely enters or remains in a ‘declared area’.71 A declared area is simply an area of any foreign country which the Foreign Minister declares as a ‘no-go’ zone.72 There are exemptions for humanitarian aid, official journalism and ‘bona fide family visits’,73 but these do not cover a range of other legitimate reasons why innocent people may enter or remain in conflict zones.74 A core feature of the Foreign Fighters Act was the truncated timetable for preenactment scrutiny. The Bill was 160 pages long and introduced some of the most controversial changes to Australian counter-terrorism law in nearly a decade. And yet, interested parties were given just eight days to make submissions to the Parliamentary Joint Committee on Intelligence and Security. Following that, the Bill was given just three days’ scrutiny in Parliament, with debate in the House lasting just two days.75

69 Criminal Code Act 1995 (Cth), pt 5.5, s 104.1(b)–(c), 104.2(2)(b). 70 ibid ss 80.2C, 119.2. 71 ibid s 119.2(1). 72 ibid s 119.3. 73 ibid s 119.2(3). 74 See further, K Hardy and G Williams, ‘Australian Legal Responses to Foreign Fighters’ (2016) 40 Criminal Law Journal 196, 202–03. 75 ibid 206.

Strategies for Countering Terrorism  73 The third Act introduced mandatory data retention, requiring Communications Service Providers to retain customers’ metadata for a period of two years.76 This includes the time, location and recipients of all phone calls, emails and SMS messages, and can be accessed by enforcement agencies without a warrant.77 The metadata laws were followed by three further stages of amendments. The Australian citizenship of dual nationals can now be revoked as a result of their involvement in terrorism.78 Control orders can be issued against children as young as 14,79 and convicted terrorists can be detained for rolling three-year periods after they have served their sentence of imprisonment.80 These legal responses to foreign fighters are framed by a broader strategy document which includes efforts to counter violent extremism.81 In practice, however, Australia’s counter-terrorism strategy has matured little since its initial responses to 9/11. The Australian government continues to focus almost exclusively on coercive pre-emptive laws, with significantly less attention given to broader communitybased strategies. When the Abbott government came to office in 2013, it initially dropped the funding for Labor’s community-based grants programme. Rather than encouraging communities to work together, the Prime Minister employed the divisive rhetoric of joining ‘team Australia’.82 The Abbott government later allocated $64 million for countering violent extremism, though the majority of these funds are to be spent on policing activities. Aside from a small community-based grants programme,83 similar to that introduced under Labor, the Coalition government’s broader strategy for countering violent extremism remains unclear and undeveloped.

II.  Australia’s Counter-Terrorism Strategy In this part, we ask three key questions of Australia’s counter-terrorism strategy. These questions have been chosen to reflect Walker’s approach to counterterrorism scholarship.84 First, we consider whether Australia’s current responses to terrorism are rational. Second, we consider whether they are effective. Here, we

76 Telecommunications (Interception and Access) Act 1979 (Cth) s 187A. 77 ibid ss 178–79. 78 Australian Citizenship Act 2007 (Cth) s 33AA. 79 Criminal Code Act 1995 (Cth) s 104.2(3). 80 Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 (Cth). 81 Council of Australian Governments, Australia’s Counter-Terrorism Strategy: Strengthening Our Resilience (Australian Government, 2015). 82 See Lisa Cox, ‘“You don’t migrate to this country unless you want to join our team”: Tony Abbott renews push on national security laws’ Sydney Morning Herald (18 August 2014). 83 Australian Government, Living Safe Together (2017), available at: www.livingsafetogether.gov.au/ aboutus/Pages/current-activities.aspx. 84 See, eg, Walker, ‘Neighbor Terrorism’ (n 14) 165; Walker, ‘Clamping Down on Terrorism’ (n 12) 1146.

74  Keiran Hardy and George Williams consider the practical difficulties in using criminal prosecution, control orders and countering violent extremism to counter the current threat. Finally, we consider whether Australia’s current strategy sufficiently protects individual rights.

A. Rational? From 9/11 to the present day, Australia’s counter-terrorism strategy has focused on coercive pre-emptive measures including criminal offences, control orders and PDOs. These pre-emptive laws pose challenges for the criminal justice system, as they are designed to prevent future harms rather than respond to harms already done.85 This approach can be considered rational insofar as it intentionally impacts upon important principles, rights and processes – such as the right to free speech, the harm principle, or standards of proof – in order to prevent catastrophic future harm to the community. This calculation between protecting rights and preventing future harm is captured in the rhetoric of ‘balancing’ rights and security. In response to the threat of IS-related terrorism, for example, then Prime Minister Tony Abbott repeated a sentiment familiar to counter-terrorism strategy since 9/11: Regrettably, for some time to come, Australians will have to endure more security than we’re used to, and more inconvenience than we’d like. Regrettably, for some time to come, the delicate balance between freedom and security may have to shift. There may be more restrictions on some so that there can be more protections for others.86

At the same time, many aspects of counter-terrorism law-making suggest that Australia’s strategy is not simply a rational, calculated response. The first problem is how quickly the laws have been passed. With the exception of ASIO’s questioning and detention warrants, most of Australia’s counter-terrorism laws have been enacted without more than a few days’ scrutiny in Parliament.87 It is not possible under such truncated timetables to have a considered, thoughtful debate as to how terrorism can best be prevented. It is also not possible to debate rationally the impact of these laws on individual rights and determine whether the purported benefits of the legislation are worth the apparent costs. A further problem is that many recent laws have been framed as urgent and necessary, even though they do not directly relate to the current threat. In 2014 and 2015, the Australian government strengthened offences for intelligence whistle-blowing, created a mandatory large-scale data retention regime, and substantially expanded ASIO’s intelligence-gathering powers in relation to

85 McCulloch and Pickering (n 24). 86 ‘Tony Abbott national security statement to Parliament’ Sydney Morning Herald (22 September 2014). 87 See Lynch, ‘Legislating with Urgency (n 33).

Strategies for Countering Terrorism  75 computers and undercover operations. While these changes relate to national security more broadly, they were not targeted at returning foreign fighters and related home-grown terrorism. Indeed, these measures had been the subject of longer-term discussions under the preceding Labor governments, before foreign fighters became a major threat to security. It must also be questioned whether significant new legislation was needed, given that the federal Parliament had by 2014 enacted more than 60 laws in response to terrorism.88 A strategy which includes over 60 counter-terrorism laws, and little in the way of national strategies for countering violent extremism, is a clear indication that longer-term goals – such as addressing the underlying causes of terrorism and building cohesive communities – have been overshadowed by the need to respond quickly and strongly to each new attack. This law-focused strategy appears to be driven by the unrealistic goal of preventing future terrorist attacks at all costs. This was captured in Tony Abbott’s claim that the Coalition government would do ‘whatever is possible to keep people safe’.89 A more considered risk-based response would recognise that some attacks may well succeed, despite the government’s best efforts at prevention. This is certainly the case given the increasing prevalence of ‘low-tech’ attacks which require little p ­ reparation.90 To counter this threat, governments should have adequate coercive laws in place, but otherwise do what they can to address the threat over the long term. Of course, this more balanced approach may remain an elusive goal given the apparent political benefits of responding to terrorism with ever stronger counterterrorism powers. Announcements about new counter-terrorism laws remain a feature of the Australian media cycle, despite the large number of such laws already on the statute book. Recently, Prime Minister Malcolm Turnbull announced new laws, standing in front of special forces soldiers and tactical response police,91 clearly in an attempt to improve his public image by responding strongly to terrorism. Australia’s responses to counter-terrorism might therefore be explained more rationally as a form of political strategy. Passing poorly drafted laws on an urgent timetable when these do not respond directly to the threat at hand cannot necessarily be explained as a rational response to terrorism. However, this process can be explained rationally in terms of the political benefits that governments gain from taking swift and decisive action. Examples of political tactics in counter-terrorism law-making abound, such as pressuring the Opposition into bipartisanship by

88 Williams, ‘The Legal Legacy of the War on Terror’ (n 29). 89 ‘Tony Abbott national security statement to Parliament’ Sydney Morning Herald (22 September 2014). 90 See Zoli (n 2). 91 See Louise Yaxley, ‘Terrorism: Prime Minister Malcolm Turnbull gives Defence Force power to help police during attacks’ ABC News (Sydney, 17 July 2017); Karen Barlow, ‘Turnbull dismisses privacy concerns in asking for a national facial recognition database’ Huffington Post (4 October 2017).

76  Keiran Hardy and George Williams accusing it of being ‘soft’ on terrorism,92 and publishing reviews by the INSLM on budget day so that recommendations to repeal or amend laws are hidden from public debate.93

B. Effective? It is doubtful how effective the Australian government’s current strategy will be in addressing the threat of returning foreign fighters and related home-grown ­terrorism. This is for several reasons. First, successful prosecution remains difficult, despite large numbers of arrests. In the case of foreign fighters, many have been killed overseas, and others may choose to remain there because they no longer identify as Australian or fear prosecution on their return. For those who return to Australia, conviction will remain difficult because prosecution will require evidence from foreign conflict zones, which may be unreliable or difficult to acquire. Where important information has been given to Australian authorities by a foreign intelligence service, intelligence-sharing arrangements may also mean that it cannot be used in an Australian courtroom.94 In the case of home-grown terrorism, prosecution for terrorism offences can prove difficult where plans to launch low-tech attacks yield little physical evidence. For example, after an alleged plot to stab and kill innocent people at the Anzac Day celebrations in Melbourne, 18-year old Harun Causevic was initially charged with conspiring to prepare a terrorist act and other preparatory offences. Causevic had conducted reconnaissance of the attack site, possessed a knife and a black shahada flag, and had discussed his plans with an acquaintance – but ultimately the charges were dropped due to a lack of evidence.95 Like others recently arrested,96 Causevic pleaded guilty to summary weapons charges rather than more serious terrorism offences. This contrasts with successful terrorism prosecutions like the Elomar trial, in which the physical evidence included chemicals, weapons and ammunition, and large amounts of extremist material that had been shared amongst a group of defendants.97 More generally, it is clear that enacting more and stronger terrorism offences will not of itself solve the problem. Repeated attacks and disrupted plots, both in

92 See A Lynch, ‘Legislating Anti-Terrorism: Observations on Form and Process’ in VV Ramraj et al (eds), Global Anti-Terrorism Law and Policy, 2nd edn (Cambridge, Cambridge University Press, 2012) 172. 93 Williams, ‘The Legal Legacy of the War on Terror’ (n 29) 14. 94 See Keiran Hardy, ‘Why is it so difficult to prosecute returning fighters?’ (The Conversation, Melbourne, 5 June 2017). 95 ‘Harun Causevic to plead guilty to weapons offences after Anzac Day terrorism plot charges dropped’ ABC News (Sydney, 25 August 2015). 96 See Nino Bucci, ‘Melbourne teen guilt of weapons offences may sue over “terrorist” label’ Sydney Morning Herald (30 July 2015). 97 R v Elomar [2010] NSWSC 10.

Strategies for Countering Terrorism  77 Australia and overseas, demonstrate that the threat of prosecution for criminal offences is not deterring young individuals from becoming involved in terrorism. Nor is prosecution possible after the fact if an attack leads to the death of the perpetrator. Prosecution will always remain a core and necessary part of a government’s counter-terrorism strategy, but it does not in itself provide an effective long-term strategy for addressing the current threat. The recent introduction of post-sentence detention powers is a clear admission of this: that conviction and imprisonment in itself is not sufficient to address the current threat.98 Control orders provide a viable alternative to prosecution, but these also raise practical difficulties. As Walker notes, a core difficulty is the lack of an investigative strategy behind the powers as a means of preventing terrorism.99 Controlees are left in a sort of investigative limbo: a suspect is placed under a control order because they cannot be prosecuted, but the conditions imposed by the order means that the suspect will not ordinarily be involved in any activity that would increase the likelihood of prosecution.100 Importantly, there is no reason to suggest that the INSLM’s conclusions about Australian control orders have changed in response to the current threat. Based on classified information from Australian police and intelligence agencies, the INSLM unequivocally recommended the repeal of control orders on the grounds that they were ‘ineffective’.101 The level of threat has increased since that time, but there is no reason to believe that the type of threat has fundamentally changed. Indeed, to the extent that the threat has changed in nature, it is now characterised by more frequent low-tech attacks which require little in the way of preparation. A control order may prevent a controlee from becoming involved in complex bomb-making, but it is not far-fetched to suggest that a controlee could abscond to launch a lowtech attack in a public space with a knife or other simple weapon. Legal responses to terrorism, like prosecution and control orders, may limit and contain the current threat, but ultimately they will not remove the threat completely or address its underlying causes. While pre-emptive laws are often justified on the basis that ‘prevention is better than cure’, these laws are ultimately more of a reaction to criminal behaviour than a considered long-term strategy for countering terrorism. In order to address the threat over the long term, what is needed is a greater focus on community-based responses that address the underlying causes of that criminal behaviour. Unfortunately, in Australia, such longer-term strategies have largely been overlooked in favour of coercive legal responses to terrorism. This is not to suggest that having more community-based responses to terrorism will provide a simple fix. As the UK’s experience with Prevent demonstrates, community-based strategies can also be problematic. Over more than a decade,



98 Criminal 99 Walker,

100 ibid.

101 INSLM

Code Amendment (High Risk Terrorist Offenders) Act 2016 (Cth). ‘Reshaping of Control Orders’ (n 20) 158.

(n 62) 4.

78  Keiran Hardy and George Williams Prevent has engendered further feelings of alienation and discrimination in Britain’s Muslim communities, largely as a result of its disproportionate focus on Islamist extremism and its heavily securitised approach.102 In 2016, David Anderson, the UK’s Independent Reviewer of Terrorism Legislation, called for an Independent Review of Prevent on the grounds that it had become a ‘more significant source of grievance’ in Britain’s Muslim communities than the use of coercive powers.103 Two particular problems that Walker identifies with community-based approaches are the lack of evidence as to their effectiveness, and the lack of clarity surrounding key terms like ‘extremism’ and ‘radicalisation’.104 More research and evaluation is needed into how these programmes work in practice, and how they can best be designed to counter the ongoing threat. As Blackbourn and Walker note, ‘official assertions’ as to the success of these programmes ‘are not sustained by published evidence’.105 Rather, what is needed is a more appropriate balance between coercive preventive measures and longer-term efforts to address the underlying causes of terrorism. This entails greater recognition of the benefits of countering the threat over the long term, rather than focusing almost exclusively on the next attack. In addition, there is a significant need for evidence-based research into what works when countering violent extremism, and how existing programmes can be improved.

C.  Protects Individual Rights? In many respects, new laws introduced in response to the current threat have made greater inroads into individual rights and liberties than the most controversial responses to 9/11 and the 2005 London bombings, such as ASIO’s warrant powers or PDOs. The declared area offence is a key example. This offence directly impacts on the right to movement and it undermines the presumption of innocence. There are no other elements to the offence beyond entering or remaining in the declared area: if that can be proven, it is presumed that the person engaged in some harmful conduct. The offence of advocating terrorism, which criminalises the ‘promotion’ and reckless encouragement of terrorism, is another key example. This offence could apply to general statements of support for terrorism posted on social media, absent any intention for others to engage in criminal conduct. It could even theoretically apply where a person resends, reposts or retweets another person’s words online – though the courts are yet to grapple with this issue. 102 See, eg, House of Commons Communities and Local Government Committee (CLG Committee), Preventing Violent Extremism: Sixth Report of Session 2009–10 (HC 65, 16 March 2010). 103 David Batty, ‘Prevent strategy “sowing mistrust and fear in Muslim communities”’ The Guardian (3 February 2016). See also ch 6 (Anderson) in this collection. 104 J Blackbourn and C Walker, ‘Interdiction and Indoctrination: The Counter-Terrorism and Security Act 2015’ (2016) 79 Modern Law Review 840, 865–66. 105 ibid 865.

Strategies for Countering Terrorism  79 This is not merely a principled concern. As Walker notes, restricting free speech through the criminal law may generate feelings of resentment and stigmatisation which ultimately undermine criminal prosecution and the flow of community intelligence.106 If Western governments are to develop counter-terrorism strategies that are sustainable over the long term, the strategies themselves need to be consistent with democratic values. This means criminalising speech acts that directly incite violence, while otherwise allowing sufficient space for free and open dialogue on national security issues.107 These new offences and powers supplement a large catalogue of counter-­ terrorism laws which have a direct and significant impact on individual rights. This is particularly the case for control orders, PDOs and ASIO’s questioning and detention warrants. These impact variously on the rights to liberty, privacy, silence, a fair trial, legal representation and the privilege against self-incrimination. An argument can be made that some impact on these rights is necessary to counter the ongoing threat. However, as we have seen, the politics involved in counterterrorism law-making suggests that a rational calculation of rights compared with security is not the only factor at play.

Conclusion Professor Walker’s scholarship emphasises the need for a counter-terrorism strategy that is sustainable over the long term. Such a strategy would be rational, effective and protective of individual rights. His approach to scholarship is balanced and practical: he is above all dedicated to individual rights and criminal justice process, but at the same time he grants governments ample space to counter the evolving threat. In this chapter, we outlined four key periods of Australian counter-terrorism since the 9/11 attacks. Largely in response to 9/11 and the London bombings, the Australian Parliament enacted a comprehensive framework of more than 60 counter-terrorism laws. These powers and offences have been further expanded in response to IS-related terrorism. These recent amendments have in many respects exceeded the most controversial aspects of Australia’s earlier responses to terrorism. Drawing on Walker’s contributions, we have asked whether Australia’s ­counter-terrorism strategy is rational, effective and protects individual rights. On each of these grounds, Australia’s counter-terrorism strategy remains inadequate. Criminal prosecution remains a necessary and appropriate response to terrorism, but Australia’s counter-terrorism laws are the product of a heavily politicised process rather than a rational, considered debate. Australia’s counter-terrorism laws can contain the current threat, but they cannot address it effectively over the

106 Walker, 107 See

‘Militant Speech’ (n 12) 1443. further ch 10 (Petzsche and Cancio Melia) in this collection.

80  Keiran Hardy and George Williams long term. Finally, Australia’s counter-terrorism laws impact unduly on individual rights, including those to liberty, free speech, free movement, privacy and a fair trial. The lack of formal human rights protection in Australia means these rights have been restricted through extraordinary laws that would not be possible in other jurisdictions. A core duty of government is to protect its citizens, but this single goal is not sufficient to sustain a counter-terrorism strategy over the long term. When this is viewed as the major – even exclusive – goal of counter-terrorism strategy, it results in reactive legal measures that unduly impact on individual rights. Ultimately, these laws will not address the threat of terrorism over the longer term. As we have seen through Australia’s responses to 9/11, the London bombings, and the current threat from IS, this law-making cycle repeats continually in response to new threats. To break the cycle, longer-term goals beyond the prevention of further attacks need significantly greater focus. Countering violent extremism programmes perform this function to some degree, but they remain ill defined and under-evaluated. Often, these programmes are also heavily securitised, as they are designed to address the risks of terrorism from radicalised youth.108 Counter-terrorism strategies need to include protecting rights as a long-term objective. Governments should ask, ‘what kind of society do we want to live in, once the threat has been sufficiently reduced?’ Without an answer to this question, counter-terrorism strategy has no overarching purpose or end goal; it is merely a response to ongoing events and further innovations in terrorist tactics. The long-term goals of counter-terrorism strategy should also include improving accountability and legitimacy. These should be considered aspects of strategy and not merely of principle, reform or integrity. These important principles are about continually reviewing counter-terrorism strategy to ensure it remains appropriate and effective. Given the military losses that IS has recently suffered in the Middle East, it is not clear what the threat will look like in the coming months and years. What we do know, at least for the foreseeable future, is that we are unlikely to live in a world free of terrorism. We might therefore conclude in the same way Walker has concluded many of his pieces, by agreeing that the threat of terrorism is likely to be generational: [C]ontrary to the promise of the concept, the ‘war on terror’, terrorism is not going to be wholly vanquished in this decade, in this generation, or probably in the next century, just as it did not vanish in the past decade, generation, or century.109

A shift in counter-terrorism thinking towards longer-term strategies needs to take place or governments will continue to experience the same cycle of problematic law-making we have seen since 9/11. In that important task, Walker’s scholarship will remain an invaluable guide.

108 See,

eg, CLG Committee (n 102); Batty (n 103). ‘Militant Speech’ (n 12) 1397.

109 Walker,

6 Shades of Independent Review david anderson Introduction Book and restaurant reviews are best written by people who were not r­ esponsible for the original product. By the same token, former holders of the office of ­Independent Reviewer of Terrorism Legislation (IRTL), a post that I held for six years until the end of February 2017, are wise to leave appraisals of their work to others. Indeed, ‘Review of review’ has already begun to find a niche in the rich and varied landscape of academic counter-terrorism studies.1 Perhaps the future will see further studies of the work of the IRTL, including comparisons with the work of the Australian Independent National Security Legislation Monitor, an office inspired by the IRTL and still its closest international comparator, and of partly comparable independent bodies such as the Privacy and Civil Liberties Oversight Board (PCLOB) in the USA and the Défenseur des Droits in France. But there may be value also in an insider account: not for an impartial assessment of how well the role of the IRTL has been discharged, but for the office-holder’s insight into the constraints and opportunities that it offers. In that spirit, as the first of my three-year terms drew to a close, I delivered a paper at the invitation of the Statute Law Society on the origins, history, functions and influence of the IRTL.2 These functions include, principally, a statutory obligation to file annual reports on the operation (by police, prosecutors, ministers and others) of various Acts of Parliament;3 and a power to conduct ad hoc reviews 1 See, eg, J Blackbourn, ‘Independent Reviewers as Alternative; An Empirical Study from Australia and the United Kingdom’ in F Davis and F de Londras (eds), Critical Debates on Counter-Terrorism Judicial Review (Cambridge, Cambridge University Press, 2014). See also, suggesting an analogous office for Canada, C Forcese and K Roach, ‘Bridging the National Security Accountability Gap’ (2016) TSAS Working Paper Series No 16-04, Part V. 2 Subsequently published as D Anderson, ‘The Independent Review of Terrorism Laws’ [2014] Public Law 403; shortened and updated in D Anderson, ‘The Independent Review of UK Terrorism Law’ (2014) 5 New Journal of European Criminal Law 432. Subsequent citations are to the Public Law article. 3 In 2014, annual review was required of the Terrorism Acts 2000 and 2006, the Terrorist AssetFreezing etc Act 2010 (TAFA 2010) and the Terrorism Prevention and Investigation Measures Act 2011

82  David Anderson at the request of ministers or on the initiative of the IRTL. This chapter is of the nature of an update. It identifies the changes to the role of the IRTL during my second term of office, from 2014 to 2017, and describes the increasingly varied types of review that I was asked to conduct during my second term. Though these remarks aspire neither to impartiality nor to scholarship, they offer an inside perspective on the various functions that independent review can perform. Perhaps this may help others to decide when it can be most useful, and the form that it should take.

I.  2014: Half-Time Reflections My paper of 2014 summarised the origin of the office in the 1970s, its history and its functions. Noting its unusual combination of ‘broad perspective and access to secrets’, I described the office of IRTL as ‘an unusual but durable source of ­scrutiny  … particularly appropriate for an area in which potential conflicts between  state power and civil liberties are acute, but information is tightly rationed’.4 Basing myself on two case studies from my own first term – secret evidence and port powers under Schedule 7 to the Terrorism Act 2000 – I then sought to describe the various channels by which the conclusions of the IRTL can influence the law, practice and public perception of counter-terrorism in the UK.5 Influenced no doubt by the soggy English winter of 2013–14,6 I visualised the influence of independent review in watery terms. Ideas originating in ‘the ­headwaters of legal practice and academic study’ became ‘powerful tributaries’ which the IRTL was well placed, via reports, evidence to Parliament, media and social media, to channel into Westminster and the public space.7 In some respects, specified in my paper, changes to law and practice were the result. But the absence of recommendations could also be of value, particularly to the government, for ‘where elements of the law work well and do not need substantial alteration, it is right (and may be reassuring) to say so’.8 The process by which influence percolates through a complex democracy is rarely straightforward. Having described the constantly shifting preoccupations (TPIMA 2011). The content of the statutory obligation to report has varied over the years, and indeed was varied again in 2015: see below. 4 Anderson, ‘The Independent Review of Terrorism Laws’ (n 2) 420–21. 5 Port powers, the subject of my second case study, continued to be subject to legislative and judicial change during my second term in office, summarised in D Anderson, The Terrorism Acts in 2015 (London, The Stationery Office, 2016) ch 7. As recorded at 7.3, of the 14 elements of Schedule 7 that I recommended in 2011 should be subject to consultation and review, change had by 2016 been effected (by a variety of routes) in relation to all but one. 6 The year 2013 to 2014 was the wettest English winter since at least 1766, when the England and Wales Precipitation Series began: www.metoffice.gov.uk/climate/uk/summaries/2014/winter. 7 Anderson, ‘The Independent Review of Terrorism Laws’ (n 2) 417. 8 ibid 413.

Shades of Independent Review  83 of NGOs, litigants, select committees and journalists (and without dwelling on the various personalities and inclinations of police and agency chiefs, civil servants, politicians and judges), I concluded from my case studies that ‘streams of influence run through a variety of channels, intersecting and reinforcing one another’.9 Those different channels of influence were to be seen not as alternatives but ‘as subtly inter-related, often divergent but at their most effective when influencing and flowing alongside one another’.10

II.  Changes to the Powers and Functioning of the IRTL The year 2015 saw significant change to the powers and functioning of the IRTL, reflecting to some extent recommendations that I had made in 2014.11 Those changes had three principal elements, which will be discussed in this section.12 First, the IRTL was given responsibility for reviewing the operation of more statutory powers, including elements of the Anti-terrorism, Crime and Security Act 2001 (ATCSA 2001) and the Counter-Terrorism Act 2008 (CTA 2008) as well as the new passport removal and temporary exclusion order powers included in the Counter-Terrorism and Security Act 2015 (CTSA 2015).13 Though this extension was welcome, and meant that the jurisdiction of the IRTL extended to nearly all aspects of counter-terrorism legislation that might benefit from independent review, the category of reviewable laws was not drawn as widely as I had hoped. In particular, and with immigration-related powers in mind, I had requested that consideration be given to extending the powers of the IRTL not only to all counter-terrorism and national security legislation but to ‘any other law to the extent that it relates to counter-terrorism and national security legislation’.14 That broader extension was refused:15 to date, reviews by the IRTL of immigration powers have been the result only of specific requests by the Home Secretary.16 Secondly, and to help balance this increase in the scope of his powers, the IRTL was relieved of the obligation to report annually on the operation of statutes other 9 ibid 415. 10 ibid 420. 11 D Anderson, The Terrorism Acts in 2013 (London, The Stationery Office, 2014) ch 11. 12 Counter-Terrorism and Security Act 2015, ss 44–46 (CTSA 2015). 13 CTSA 2015, s 44(1)(2). 14 A formulation inspired by the (Australian) Independent National Security Legislation Monitor Act 2010, s 6(1). The same Act inspired the recommendation that consideration be given to making express statutory provision for access to classified information, information-gathering powers, the exclusion of sensitive information from reports and the time limit within which reports must be laid before Parliament: Anderson, The Terrorism Acts in 2013 (n 11) 11.34. 15 See The Government Response to the Annual Report on the Operation of the Terrorism Acts in 2015 by the Independent Reviewer of Terrorism Legislation (Cm 9489, 2017) 4–5, warning of uncertainty as to the boundaries of the IRTL’s function and the creation of ‘an unhelpful precedent’. 16 eg, for my reviews of citizenship deprivation (published April 2016) and deportation with assurances (published July 2017).

84  David Anderson than the Terrorism Act 2000 (in respect of which the annual reporting obligation remains). As I had said of the previous inflexible annual schedule: This is the legacy of the days, now gone, when anti-terrorism legislation was subject to annual parliamentary renewal, and a report was called for to inform the renewal debate. In some cases … annual review may be entirely appropriate. In others it might be considered unnecessary and excessive, or at any rate a relatively low priority.17

The IRTL must now inform the Home Secretary and Treasury, by the end of every January, which, if any, optional reviews it is proposed to conduct during the calendar year. My suggestion that the IRTL should be obliged first to consult the relevant parliamentary committees (the Home Affairs Select Committee and Joint Committee on Human Rights (JCHR)) was not taken up in statute, though formal or informal consultation with these bodies could still take place if desired. The increased flexibility is welcome. But it is important that the press of other business – in particular, one-off reports for which time may not have been set aside in advance – does not cause important powers to go unreviewed for too long. My last reports on the operation of Terrorism Prevention and Investigation ­Measures (TPIMs) and terrorist asset-freezing were published in March 2015. Plans to review the exercise of these and other executive orders (passport removal, exclusion orders) before the expiry of my mandate in March 2017 were delayed as a consequence of other burdens, including the reports on citizenship deprivation and bulk powers discussed below. Almost three years have now elapsed since the executive orders were last reported on; and the two powers introduced by CTSA 2015 have not been reported on at all. Thirdly, it was decided after the 2015 general election to offer the IRTL more assistance in the form of an additional £50,000 budget, which I chose to allocate to work performed by an enlarged team of part-time special advisers. My earliest (and best) decision as IRTL was to secure the ad hoc services of Professor Clive Walker, who agreed in 2011 to take the title of Special Adviser to the IRTL. In that capacity he produced a fortnightly reading list or ‘alerter’, complete with copies of relevant materials from around the globe, from which I benefited immensely as, I hope, did the Home Office to which it was also sent. In addition, and without thought of payment, Clive responded with unfailing learning and wry humour to the myriad questions that I threw at him over six years. If as a newcomer to counter-terrorism law I ever gave the impression of historical or comparative knowledge, the credit belongs to him. The additional budget enabled me to promote Clive Walker to Senior Special Adviser and take on two other special advisers: the Northern Irish barrister Alyson Kilpatrick and the English barrister and broadcaster Hashi Mohamed. Their security clearance came through in 2016, and the first fruits of their assistance may be seen in the last two reports that I prepared in office.18 The system to which Clive 17 Anderson, The Terrorism Acts in 2013 (n 11) 11.24. 18 Clive Walker wrote a guest chapter on foreign terrorist fighters and UK counter-terrorism law in my last annual report (Anderson, The Terrorism Acts in 2015 (n 5) Annex 2); and wrote the more

Shades of Independent Review  85 contributed so much is not one that he would himself have designed. As I noted in my paper of 2014, he had advocated a panel of reviewers.19 The Coalition government, or at least the Liberal Democrat part of it, agreed with him at first. When its plans for change were announced, they included the abolition of the office of IRTL and its replacement by a Privacy and Civil Liberties Board (PCLB). By the time the CTSA 2015 reached the statute book, the IRTL had been reprieved, and the PCLB was to operate – more satisfactorily, in my opinion – under the direction and control of the IRTL.20 The Liberal Democrats were no longer in government after the general election of May 2015, and the Home Secretary, Theresa May, opted not to bring the PCLB into force. The budget increase, already referred to, was her alternative solution to the overload that I had identified in previous reports. The section providing for the creation of the PCLB remains on the statute book, a dead letter for now but available for action should opinions change.

III.  Second Term: Annual Reviews From 2014 to 2016 I continued to produce annual reviews of the operation of the Terrorism Acts and (until March 2015) of the Terrorist Asset-Freezing etc Act 2010 and Terrorism Prevention and Investigation Measures Act 2011 (TPIMA 2011). Though from early 2015 the statutory requirement of an annual report applied only to the 2000 Act, I chose not to depart from my earlier practice of reviewing the operation of the 2006 Act at the same time. In my last annual report, published on 1 December 2016, I reviewed at the same time some aspects of the operation of the CTA 2008. In order to vary the format and content of my annual Terrorism Acts reports, I included chapters in different years focusing on particular subjects. It was by that route that I stumbled into the world of counter-extremism.

A.  Counter-Extremism and Prevent My 2015 report contained a chapter on counter-extremism, which did not form part of my statutory remit.21 I nonetheless felt justified in addressing this substantial and learned part of my final report (submitted in February 2017), of which he was credited as a co-author: D Anderson and C Walker, Deportation with Assurances (Cm 9462, 2017). 19 I have been less keen on the idea of a panel, citing the importance of a strong personal commitment by an IRTL to all aspects of the job, the need for emphatic positions to be taken, sometimes at very short notice, eg, with parliamentary committees and the media; the need to make the post attractive to strong candidates; and the risk that reports might become the bland products of compromise. These factors led me to prefer the model of a single IRTL with adequate support staff. 20 CTSA 2015 s 46. The twists and turns of the legislative process are described in D Anderson, The Terrorism Acts in 2014 (London, The Stationery Office, 2015) 10.2–10.5. 21 ibid ch 9.

86  David Anderson issue, both because the Home Office, no doubt hoping for my public approval, had chosen to show me, in mid-2015, a draft of its Counter-Extremism Bill; and because of similarities between what was proposed in the draft Bill and the executive orders (TPIMs, asset freezes) which it was my responsibility to review. In my report, I posed 15 questions that I suggested Members of Parliament should ask were a Bill along these lines to be introduced. A private letter to the Home Office, written in August 2015, set out my concerns more directly and frankly. In a radio programme I later described the draft Bill, which would have introduced a variety of coercive orders for use against ill-defined ‘extremist activity’, as the single document that had alarmed me most during my time as IRTL.22 In the end, though it had been flagged as part of the legislative programme in two successive Queen’s Speeches, the Bill was ditched (having never been published), and replaced after the 2017 general election by plans for the establishment of a Counter-Extremism Commission. I was relieved by this outcome but can claim no particular credit for it: my negative reaction to the draft Bill is likely to have been shared by others who were exposed to it. Over the remaining period of my time as IRTL, both Parliament and Muslim communities expressed far more interest and concern to me about counter-­ extremism plans, and the Prevent strategy, than they did about the harsher provisions of counter-terrorism law. This was partly because the repeal in 2011 of the former no-suspicion stop and search power,23 and the reform and reduction in use of Schedule 7 port powers,24 diminished the sense of grievance that these measures had previously evoked in some quarters. But it was also because the application of Prevent – particularly after the introduction of a statutory duty on certain public authorities to have due regard to the need to prevent people from being drawn into terrorism25 – was becoming increasingly controversial. The intensity of this interest would have made Prevent a difficult subject to avoid, even if I had wished to do so. Accordingly, having registered my interest in my 2015 report, I stepped up my engagement with Muslim groups, gave written and oral evidence on Prevent at the invitation of two parliamentary committees,26 wrote an op-ed for a London newspaper27 and – after my term of office came to an end – wrote and presented a radio programme on the subject.28 The Home Office, 22 BBC Radio 4, ‘Law in Action’ (3 November 2016), interviewed by Joshua Rozenberg: defendfreespeech.org.uk/david-anderson-transcript. 23 Terrorism Act 2000, s 44. For the contorted tale of its repeal and replacement, see D Anderson, The Terrorism Acts in 2011 (London, The Stationery Office, 2012) 8.6–8.19. See also ch 11 (Lennon) in this collection. 24 See Anderson, The Terrorism Acts in 2015 (n 5) ch 7. 25 CTSA 2015 s 26(1). 26 They reported as follows: Joint Committee on Human Rights, Counter-Extremism (2016–17, HL  39, HC 105); Home Affairs Committee, Radicalisation: the counter-narrative and identifying the tipping point (2016–17, HC 135). 27 David Anderson, ‘Prevent strategy can work against radicalisation … if it is trusted’ Evening Standard (15 February 2017). 28 BBC Radio 4, ‘Understanding Prevent’ (30 July 2017): www.bbc.co.uk/programmes/b08yp16m.

Shades of Independent Review  87 observing my increasing involvement in the field, began cautiously to brief me on Prevent-related matters, and allowed me to set up meetings with Prevent providers and liaison groups. I always emphasised that I was beyond the edge of my strict remit where Prevent was concerned. But it did seem to me that an independent review of Prevent, equivalent to those performed by the IRTL, could have done much both to identify any excesses and to dispel some of the hostile mythology that had grown up around the strategy.29 Another of my constant recommendations – greater transparency around Prevent – seems to have fallen on more fertile ground.30

IV.  Second Term: One-Off Reviews In contrast to my first term as IRTL, when my only report outside the usual sequence had been the examination of five arrests during the Pope’s visit to London in 2010,31 my second term featured five ‘one-off ’ reviews. A common feature of those reviews is that they were commissioned as a way out of political conflict. But the context of each was different, and a variety of different working methods were employed. I give a brief account of each of them below.

A.  Deportation and Citizenship Two of the one-off reviews conducted in my second term – into deportation with assurances (DWA)32 and the deprivation of citizenship33 – concerned powers broadly related to immigration but in other ways resembled regular reviews into the operation of counter-terrorism laws. Each was commissioned as a way of defusing political controversy over the operation of a controversial power.

i.  Deportation with Assurances As early as the 1990s, the case law of the European Court of Human Rights had brought home to policymakers that deportations could not lawfully be effected in cases where there was a real risk that the deportee would be subjected to torture or to inhuman and degrading treatment.34 Accordingly, in 2005 and the years 29 Some of the necessary research was performed and written up in J Busher et al, What the Prevent duty means for schools and colleges in England (Aziz Foundation, 2017). More remains to be done. 30 See, most recently, Home Office, Individuals referred to and supported though the Prevent programme, April 2016 to March 2017 (Statistical Bulletin 6/18, Home Office, 2018). 31 D Anderson, Operation GIRD: Report Following Review (London, The Stationery Office, 2011). 32 Anderson and Walker (n 18). 33 D Anderson, Citizenship removal resulting in statelessness (London, The Stationery Office, 2016). 34 Chahal v United Kingdom (1996) 23 EHRR 413 App no 22414/93, upheld in Saadi v Italy (2008) App no 37201/06.

88  David Anderson following, generic assurances were negotiated with six countries – Jordan, Libya, Lebanon, Algeria, Ethiopia and Morocco – which it was hoped would be sufficiently credible to allow deportations without infringing the human rights of the deportee. The possibility of an annual review of DWA was mooted in the Coalition government’s Review of Counter-Terrorism and Security Powers, published in January 2011, no doubt with a view to promoting confidence at home and abroad in a policy which it was hoped – in the first flush of the Arab Spring – would soon be more widely applied. But no review was commissioned until November 2013, after Abu Qatada – whose case had been litigated for many years – had safely departed the UK for trial in Jordan.35 The terms of reference (on which I was not consulted) were narrow, and were criticised, only a little unfairly, for being ‘designed solely to identify means of increasing the administrative utility of the DWA policy’.36 Though I travelled to Jordan and Algeria in 2014, and hosted an invitation-only conference on DWA with Clive Walker in London that autumn, my review was then further delayed by two major one-off reports on investigatory powers, discussed below. By the time the report was completed in February 2017, the strict conditions imposed on DWA by the European Court of Human Rights,37 coupled with worsening human rights conditions and difficulties of verification in several of the countries which had given assurances, meant that the practice – far from expanding, as had been envisaged when a review was first contemplated – had halted altogether. Despite the hopes expressed in the terms of reference, I had no procedural short-cuts to suggest. If the report has any enduring value, it will lie largely in Clive Walker’s carefully researched section on international and comparative law and practice.

ii.  Citizenship Removal Regular review of citizenship removals resulting in statelessness38 is required by statute39 (though not reserved to the IRTL), in recognition of the unusual nature of the power and the parliamentary controversy that attended its revival in 2014. The power allows the Secretary of State to deprive a person of British citizenship resulting from naturalisation, notwithstanding that the person is rendered stateless. Such an order may be granted if the Secretary of State is satisfied that deprivation is conducive to the public good because the person has ‘conducted himself in a manner which is seriously prejudicial to the vital interests of the United Kingdom’, and if she has reasonable grounds for believing that the person is able to become a

35 BBC News, ‘Abu Qatada deported from UK to stand trial in Jordan’ (7 July 2013). 36 Submission of JUSTICE to the DWA review (February 2014) para 7. 37 See, in particular, Othman (Abu Qatada) v United Kingdom (2012) 55 EHRR 1 App no 8139/09. 38 Anderson, Citizenship removal resulting in statelessness (n 33). 39 Immigration Act 2014 (IA 2014) s 66(3), inserting a new section 40(4B) into the British Nationality Act 1981 (BNA 1981).

Shades of Independent Review  89 national of another country.40 The power is comparable to one that existed in the UK prior to April 2003,41 but has few international parallels in its application to people other than existing dual nationals. My statutory review covered the first year (ending in July 2015) in which the power was in force. It was not, however, exercised during the period under review. Accordingly, in my 17-page report I could do no more than note the difficulties in giving effect to the popular desire for a power of banishment, summarise the evolution of the power under review and identify some of the likely legal and practical issues concerning its future operation. The next statutory review will cover the operation of the power during the three-year period to July 2018.

B.  TPIMS: Classified Report The most urgent report of my six years as IRTL was commissioned by the Prime Minister, Deputy Prime Minister and Home Secretary on 11 September 2014, and delivered to them six days later. Like the two reports just mentioned, it was requested for the purposes of resolving a political deadlock within the Coalition government of 2010–15. This report was highly classified, to the point where I failed to persuade the Home Office to publish even a sensibly redacted version as an appendix to my TPIMs report of March 2015. Uniquely among my reports as IRTL, it therefore remains unpublished in any form. This is regrettable, from the point of view both of the interested public and of the IRTL, who may need to be able to demonstrate that their advice was evidence based and politically neutral. Under the control order regime in force between 2005 and 2011,42 23 people suspected of involvement in terrorism were ‘relocated’, with their families if they so chose, to towns or cities up to two or three hours’ travel from their home. Relocation was described by the NGO Liberty, in language evocative of the Gulag, as ‘internal exile’.43 But the courts for the most part upheld relocations as necessary and proportionate;44 and as I reported in 2013, ‘It was prized for national security purposes as much as it was resented by families’.45 No control order subject absconded while relocated, perhaps because they lacked reliable networks in the towns where they were living, or because they could be more easily monitored

40 IA 2014 s 66, inserting a new section 40(4A) into the BNA 1981. 41 The power is consistent with the UK’s ratification of the 1961 UN Convention on the Reduction of Statelessness because of a reservation entered by the UK to Art 8 of the Convention. The Council of Europe’s 1997 European Convention on Nationality, by contrast, does not provide for the retention of a pre-existing domestic power to render someone stateless, but was not ratified by the United Kingdom. 42 Prevention of Terrorism Act 2005. 43 LIBERTY, From ‘War’ to Law: LIBERTY’s Response to the Coalition Government’s Review of Counter-Terrorism and Security Powers 2010 (LIBERTY, 2010) 12. 44 See, eg, CD v SSHD [2011] EWHC 1273 (Admin) (Simon J); BM v SSHD [2011] EWHC 1969 (Admin) (Calvert-Smith J). 45 D Anderson, TPIMs in 2012 (London, The Stationery Office, 2013) 11.30.

90  David Anderson there. Absconding had been a feature of the control order regime until relocation became commonplace in 2007; and the removal of the relocation power when TPIMs replaced control orders in 2011 was followed by the high-profile absconding of two TPIM subjects, Ibrahim Magag and Mohamed Mohamed, in 2012 and 2013, respectively. These abscondings shook confidence in the system; and Labour, which had opposed the shift to TPIMs, made political capital out of them. The consequence was a reluctance to make new TPIMs. By 2014, the advocacy group CAGE had remarked that ‘those who want to abscond will’,46 and the JCHR was reporting that TPIMs ‘may be withering on the vine as a counter-terrorism tool of practical utility’.47 In my annual TPIMs report of March 2014, I recommended that the time had come to revisit the issue of locational constraints, but advised that relocation should only be reintroduced if the power to impose exclusion measures (restricting a TPIM subject from entering a specified area or place) was insufficient to address the problem. Unable to agree a way forward, the Prime Minister, Deputy Prime Minister and Home Secretary asked me in September to report further on whether the power to impose exclusion measures was sufficient, or whether some form of relocation power was needed, and if so what form it should take. In the days that followed I worked intensively on this issue, questioning the Home Office, MI5 and the Metropolitan Police as well as listening to officers from regional forces and familiarising myself with internal Home Office reviews into the recent ­abscondings. I re-read all the High Court judgments on relocation (open and closed), as well as my notes of meetings with former control order and TPIM subjects and their representatives, and was briefed on the current and anticipated threat. My conclusion was that while more aggressive use of exclusion zones could increase their efficacy, exclusion zones in the absence of relocation could do nothing to prevent a subject from meeting harmful associates on his home patch for the purposes of terrorist plotting, planning to abscond or simply maintaining links and networks. A power to relocate subjects away from their home areas should be reintroduced, subject to statutory limitations: it would be of real practical assistance to the police and MI5 in distancing subjects from their associates and reducing the risk of absconding. It would also facilitate monitoring, save money and could help restore faith in a TPIM regime that had become unused and ­unusable. My recommendation that relocation be restored was accompanied by a list of other recommendations, some of which were no doubt more palatable to the Liberal Democrat elements of the Coalition and to the JCHR. These included the introduction of a balance of probabilities test for involvement in terrorism-related activity (which was adopted, though not in the end extended to the courts, as I had suggested); a narrowing of the definition of ‘terrorism-related activity’ under 46 Joint Committee on Human Rights, Post-Legislative Scrutiny: Terrorism Prevention and Investigation Measures Act 2011 (2013–14, HL 113, HC 1014) para 56. 47 ibid ‘Conclusions’, para 15.

Shades of Independent Review  91 TPIMA 2011 (whose wording I found myself negotiating, memorably at least for me, at a private meeting with the Cabinet Secretary);48 the introduction of a power to require attendance at de-radicalisation interviews during the currency of a TPIM; and the establishment of a judge-led working group to consider grievances raised by special advocates in the context of closed material proceedings. Until A Question of Trust (below), this was probably the moment at which my influence as IRTL was at its strongest. The government seemed to think it important to be able to say that they had accepted each of my 10 recommendations. Though one or two were implemented only in part, they formed the basis of the ‘Mk II TPIMs’ that have been in use since 2015.49 In contrast with previous years, when the issue of relocation had sharply divided government and opposition,50 the subject proved to be largely uncontroversial in Parliament. Even the JCHR, which had previously been consistently opposed to relocation, reluctantly accepted my judgement that the changing nature of the threat justified the reintroduction of the power, while looking to the government to mitigate any resultant alienation or resentment.51 The strong and direct influence that the IRTL was able to exert on the development of TPIMs during this period was partly explicable by the existence of a coalition government, and the fact that its component parts had long-standing and principled divisions that I was effectively asked to arbitrate. But such divisions could arise also within single-party governments. In such circumstances, there is no reason why further specific reviews should not be commissioned from the IRTL in order to ensure that policymaking is based on the best possible evidence.

C.  Investigatory Powers i.  A Question of Trust I share with Clive Walker a love of Scottish islands: so it was appropriate that I was asked to take on my most ambitious and time-consuming review, A ­Question of Trust,52 while on a sea kayaking holiday in Shetland in July 2014. There was no mobile signal within several miles of our base, but my phone buzzed into life while driving back from a midnight trip to watch storm petrels roost in an Iron Age broch on the island of Mousa. Messages had been arriving throughout the

48 The solution we found is in CTSA 2015, s 20(2). 49 For details of my recommendations and their implementation, including by the CTSA 2015, see D Anderson, TPIMs in 2014 (London, The Stationery Office, 2015) chs 3 and 4. 50 eg, in the opposition day debate following the abscond of Mohamed Mohamed: HC Deb 21 January 2014, vol 574, cols 623–74. 51 Joint Committee on Human Rights, Legislative Scrutiny: Counter-Terrorism and Security Bill (2014–15, HL 86, HC 859) 4.10. 52 D Anderson, A Question of Trust: Report of the Investigatory Powers Review (London, The Stationery Office, 2015).

92  David Anderson day, beseeching me with increasing desperation to telephone the Home Secretary. When eventually Theresa May was put through to the land line in the remote bunk house where I was staying, it was to say that she hoped to announce to Parliament in a few minutes’ time that I had agreed to perform a review of the law on investigatory powers. I accepted, with little notion of what this would involve. My first inkling of the size of the task came a few hours later, when I responded to a call from the Shadow Home Secretary, Yvette Cooper. She had pressed for my appointment, she said, wished me well with the work and hoped at the end of it to see ‘a book’.53 This commission – like each of the other one-off reviews of my second term – had its genesis in political dispute. In April 2014, the Court of Justice of the EU had declared invalid the EU’s Data Retention Directive, and with it the basis on which communications service providers (CSPs) in the UK could be required to retain the communications data relating to their customers’ use of their services.54 Police, and some other public authorities, relied heavily on data of this kind for the investigation of crime and of missing persons. As CSPs began to question the continued legal basis for requiring them to retain communications data, the government determined that swift action was necessary to provide a legal basis in domestic statute. The consequence was the Data Retention and Investigatory Powers Act 2014 (DRIPA 2014), presented to Parliament as a matter of urgency and required to pass all its parliamentary stages within a matter of days. In order to achieve this objective, the Home Secretary needed cooperation both from her Liberal Democrat coalition partners and from the Labour opposition. This gave those parties a degree of leverage, particularly given that the 2010 Parliament had already seen one botched attempt to legislate on communications data.55 It was accordingly agreed on a cross-party basis that DRIPA 2014 would be limited in duration, sunsetting at the end of 2016, and that I would be commissioned to complete a review, by the start of May 2015, advising on the nature of the permanent replacement law.56 Two overlapping reviews had already been ­commissioned: from the Intelligence and Security Committee of Parliament (ISC),57 and from an ad hoc committee set up by the Deputy Prime Minister, Nick Clegg, under the chairmanship of Michael Clarke, Director of the Royal United Services Institute (RUSI).58 I reported after the first and before the second, delivering A  Question of Trust to the Cabinet Secretary on the day before the general election, 6 May 2015. I resisted the temptation to take longer, in case it 53 As she did: even without Annexes, A Question of Trust stretched to 306 pages. 54 Digital Rights Ireland Case C-293/12, ECLI:EU:C:2014:238. 55 The Communications Data Bill 2012, which lost Liberal Democrat support and was withdrawn after a damning pre-legislative report from a parliamentary committee. 56 My appointment was required by DRIPA 2014, s 7. 57 Intelligence and Security Committee, Privacy and Security: a modern and transparent legal framework (2014–15, HC 1075). 58 Royal United Services Institute, A Democratic Licence to Operate: Report of the Independent Surveillance Review (RUSI 2015).

Shades of Independent Review  93 should be suggested that I had tailored my conclusions to whichever new government was elected. My statutory terms of reference were as stunningly broad as the DWA terms of reference had been narrow. They required me to ‘review the operation and regulation of investigatory powers’59 and to consider, in particular: a. b. c. d. e. f.

current and future threats to the United Kingdom, the capabilities needed to combat those threats, safeguards to protect privacy, the challenges of changing technologies, issues relating to transparency and oversight, and the effectiveness of existing legislation (including its proportionality) and the case for new or amending legislation.60

Wise heads in the Home Office counselled me to take a narrow view of my task, bearing in mind that parliamentary time was unlikely to be available for a substantial replacement Bill. But confronted with such a broad canvas, I determined not just to fill one corner of it but to attempt, however inadequately, to cover it all. My report described the existing law as ‘incomprehensible to all but a tiny band of initiates’,61 and advised that: A comprehensive and comprehensible new law should be drafted from scratch, replacing the multitude of current powers and providing for clear limits and safeguards on any intrusive power that it may be necessary for public authorities to use.62

Its central recommendations were vastly increased transparency, judicial authorisation of warrants, and the creation of a powerful and well-equipped oversight authority to replace the previous piecemeal arrangements. It did not recommend the creation of any new powers; but nor did it recommend the withdrawal of capabilities that were already used. A Question of Trust found favour in policing and intelligence circles but also in the press, including The Guardian which had been a prime mover since 2013 in publicising Edward Snowden’s revelations of ‘mass surveillance’ by GCHQ and others.63 It was the subject of immediate oral statements followed by full debates in both Houses of Parliament.64 A few days later, the RUSI report was published.65 To a large extent, RUSI echoed my recommendations: the breadth of expertise on the RUSI panel, ranging from former intelligence agency chiefs to a campaigning 59 DRIPA 2014 s 7(1). 60 ibid s 7(2). 61 Anderson A Question of Trust (n 52) para 35. 62 ibid para 10. 63 Martin Kettle, ‘Security v Privacy: Anderson offers the balance we’ve been seeking since 9/11’ The Guardian (11 June 2015). 64 HC Deb 25 June 2015, vol 596, cols 1081–142; HL Deb 8 July 2015, vol 764, cols 190–236. 65 RUSI (n 58).

94  David Anderson journalist, thus gave them added legitimacy. The overwhelming majority of the 125 recommendations in A Question of Trust (one of them conveyed privately in a letter to the Prime Minister) were subsequently given effect in the draft Bill, itself the subject of exhaustive parliamentary scrutiny, and then in the Bill that became the Investigatory Powers Act 2016 (IPA 2016).66 IPA 2016 turned out to be the most substantial piece of legislation to be enacted by the 2015–17 Parliament. This is not the place to go into further detail of the report or its subject matter. Two reflections may however be of broader relevance to reviews of this kind. First, much of the strength of the report came from the fact that the small, part-time team that I assembled to help me produce it consisted not of civil servants but of people who were both viewpoint-diverse and themselves independent. Among them were a retired securocrat, a human rights barrister in my own chambers and a technically inclined solicitor who approached me out of the blue when she read of my appointment. The often spirited debates within the team helped both to inspire my proposals and to road-test them. Allowing selected chapters to be read before publication by trusted and knowledgeable figures from the NGO world and the Bar further improved their quality. That diversity of input was extended by trips to Brussels, Berlin, Ottawa, Silicon Valley and Washington DC, and by the Foreign Office, which organised a Wilton Park conference around the themes of my review. People from UK government and from global industry, academe and NGOs were marooned for a couple of days in a grand house in deep countryside, where there was little to do except talk to each other. It was here, as an ex-GCHQ engineer and a prominent privacy advocate bonded over dinner, that I realised for the first time that polarised as the privacy/security debate might seem, there was common ground on which people of good sense should be able to gather. Secondly, when it came to breaking down that polarisation of opinion, transparency proved a remarkably powerful solvent. The post-Snowden environment was characterised by mutual mistrust between the privacy and security lobbies, often expressed in emotional accusations: of deceit, snooping and scorn for democracy on one side, lack of appreciation for the security forces on the other. At the root of this discord was an absence of reliable public knowledge about the true nature of intrusive capabilities that were exercised under vague and dated laws. The extensive disclosure that accompanied the draft Bill brought a measure of enlightenment to the debate. Those well-worn epithets, Orwellian and Kafkaesque, are still wheeled out from time to time, but serious commentators have moved on to serious questions: where is the operational case for this power? Why should there not be further safeguards on that one? Continued and enhanced transparency, 66 The Bill differed in some respects from my proposals. Though government accepted the principle that warrants should not enter into force without the approval of a senior judge, they opted (following RUSI) for a ‘double lock’ under which authorisation by the Secretary of State continued to be required. A new power to require the retention of ‘internet connection records’ was introduced, after the inadequate evidence presented to me was upgraded and produced to parliamentary committees. It may be questioned whether ‘appropriately rigorous and rights-compliant procedures’ were in all cases introduced to govern access to communications data derived from bulk warrants, as I had recommended.

Shades of Independent Review  95 I am convinced, is the way to ensure that legislatures and courts across the world make sensible decisions in this highly contested area.

ii.  Bulk Powers Review A sequel to A Question of Trust was commissioned in May 2016, as the Investigatory Powers Bill was nearing report stage in the House of Commons.67 Provoked once again by the Labour opposition, the government asked me to spend three  months examining the operational case for the ‘bulk powers’ reserved to MI5, MI6 and GCHQ and contained in Parts 6 and 7 of the Investigatory Powers Bill. These included bulk interception, the newly minted power of bulk equipment interference, the use of bulk communications data and the power to retain bulk personal datasets. I was asked to consider whether these capabilities were useful and whether they were necessary, in the sense that their results could not have been achieved through alternative investigative methods. But I was not asked to rule whether they were proportionate and would have resisted if I had been. That judgement, as it seemed to me, was for Parliament. In such a highly contested and political field, the reputation of my office was best served by sticking to conclusions which could be demonstrated to follow from evidence, leaving broader value judgements to others. Once again, I assembled a diverse team, though my flexibility on this occasion was limited by the fact that all its members needed already to have developed vetting clearance. They comprised an independent security consultant with detailed technical knowledge of GCHQ’s secret systems; a former Director of Intelligence at the National Crime Agency who was used to evaluating the utility of different sorts of lead; and a barrister, Cathryn McGahey QC, who as a special advocate had particular expertise in interrogating witnesses from the intelligence agencies. Aware of the intense worldwide controversy that attended these capabilities, we determined to assess their utility as rigorously and by as many different routes as possible. I started by writing personally to the three agency chiefs, emphasising to them the need for full disclosure and cooperation if they were to discharge their burden of proving utility in the time available, and by agreeing with the agencies a framework for evaluating outcomes. The core of the team’s work, led by Cathryn McGahey, was the questioning of 85 intelligence officials who presented to us the 60 case studies which are set out (in summary form) in the report, and reading the contemporaneous intelligence reports that verified what we were being told. We were shown electronic records, questioned analysts on their decision-making processes, and examined how often the powers were used, the incidence of negative outcomes and the utility of alternative approaches. In addition, we studied documents, prepared for internal consideration at board level, in which the

67 D

Anderson, Report of the Bulk Powers Review (Cm 9326, 2016).

96  David Anderson utility of the powers under review had been considered, both in absolute terms and relative to other priorities. We reviewed past open and closed assessments of the powers by those responsible for their oversight in the UK, together with the assessments of similar powers conducted in the US by the PCLOB and National Academy of Sciences. We put to the agencies points that came out of the Snowden documents and that had been raised with us by NGOs and technical experts who had responded to our consultation or whom we had sought out. The team agreed that there was a proven operational case for three of the bulk powers, and a distinct (though not yet proven) operational case for bulk equipment interference. We found that where alternative methods exist, they are often less effective, more dangerous, more resource-intensive, more intrusive or slower. Those conclusions were not challenged in Parliament, and the Bill proceeded accordingly. The report made a single recommendation, which was faithfully incorporated into the IPA 2016: the creation of a Technology Advisory Panel of independent academics and industry experts to advise on the impact of changing technology, and on how the agencies could reduce the privacy footprint of their activities. This panel, now established, will give vital technical support to the new and enlarged Investigatory Powers Commissioner’s Office.

V.  Postscript: Intelligence Handling Four months after leaving post as IRTL, I was asked to assess and assure the quality of the internal reviews conducted by MI5 and Counter-Terrorism Policing into their handling of intelligence on the perpetrators prior to the four completed terrorist attacks of spring and summer 2017 (Westminster, Manchester, London Bridge and Finsbury Park). Intensive work by large teams at both MI5 and the police enabled nine highly classified reviews to be completed by the start of November, covering 1,150 pages. The reviews constituted a minutely detailed account of the intelligence picture prior to each of the attacks, together with 126 recommendations for operational improvement, some of them rather radical. My role was not to lead the reviews, but rather to act, in the words of the ‘Foreword’, as ‘a gadfly on the hide of the beast’.68 I sought to influence the reviews by embedding myself for long periods of time within Thames House (the London home of MI5) and New Scotland Yard (from where Counter-Terrorism Policing is led), attending internal meetings, requesting internal documents, and generally making a nuisance of myself. As I wrote in my report, which was accompanied by a highly classified letter for the attention of the Prime Minister and others: I formed a positive impression of the integrity of the review teams both at MI5 and CT Policing, and found most of the work with which I was presented, even at an early stage of the process, to be of a good standard. But given the request for assurance in my letter 68 D Anderson, Attacks in London and Manchester, March–June 2017: Independent Assessment of MI5 and Police Internal Reviews (December 2017) ‘Foreword’.

Shades of Independent Review  97 of instruction, it was necessary to test the product as rigorously as I could, and where possible to suggest improvements. Accordingly, on what must have been (in total) many hundreds of occasions I made specific comments on drafts, asked for proof of assertions, requested documents and briefings, identified issues to be confronted, asked for more thorough accounts, suggested the restructuring of reports, challenged assertions that errors were inconsequential, advised that sensitive material was relevant, discouraged complacency and generally sought to promote the value of self-criticism. On a limited number of issues I also made the case, sometimes forcefully, for the consideration of specific operational improvements or for further-reaching recommendations than previous drafts had been prepared to contemplate. Some of my suggestions or comments precipitated vigorous discussions, some were more appealing to MI5 than to the police or vice versa, and one or two proved ­controversial. But all were received with courtesy, many were taken up with enthusiasm, and every one was given effect wholly or in substantial part.’69

Would I recommend this kind of ‘independent assurance’ as a model to others? Not in all circumstances. When large institutions are commanded to perform internal reviews, it is always possible that they will react by going through the motions, or by digging defensive redoubts. Even when a window is opened to change, it can close again before long. An outsider who is there to comment rather than to direct an investigation risks being dismissed as a mere irritant by those whose conduct is being examined. Furthermore, association with a process managed by others risks damage to the reputation of the independent person – a danger of which I was acutely conscious. But on this occasion, it seemed to me to work well. There were two reasons for this. First, the shock of successive multiple-casualty attacks had rendered the security services, for a time at least, genuinely open to the possibility of radical change. This enabled agreement to major reforms in relation to the setting of datadriven tripwires for former subjects of interest, the joint working arrangements of MI5 and Counter-Terrorism Policing, the release of more knowledge derived from intelligence to local police and agencies, and the removal of outdated distinctions in the way that different types of terrorist threat are assessed and responded to. These and other changes are summarised, to the extent that it was open to me to do so, in my unclassified report. Second, the fact that these recommendations were generated by MI5 and Counter-Terrorism Policing caused both to be fully invested in implementing them – something that cannot always be said of external recommendations, which may be perceived within the organisations concerned as misguided or founded on an incomplete understanding of their operations. As an extra assurance, I was commissioned by the Home Secretary, after the publication of my report, to oversee and report upon its implementation.70 69 ibid 4.22–4.24. 70 Letter from the Home Office to the author (30 January 2018), available at: www.daqc.co.uk/ wp-content/uploads/sites/22/2018/01/wrote-to-me-today.pdf.

98  David Anderson

VI.  Full Time The complex channels of influence that I described in my 2014 article71 were still in place during my second term of office. Recommendations in the IRTL’s regular or self-commissioned reports generally respond to concerns identified by the IRTL, not by government. This means that while some may be implemented directly, others find their way on to the Home Office agenda only once they have been picked up by lawyers or media and passed through force multipliers in the shape of courts or parliamentary committees. The evolution of the Schedule 7 port power between 2011 and 2017 provides a good example of change coming through a variety of such routes. The equation is different where the IRTL publishes one-off reports on topics specified by the Home Office or Prime Minister. This was not a feature of my first term, but happened five times between 2014 and 2017. In such cases, recommendations that are politically feasible should normally stand a good chance of being followed. The timing is not always right. If by the time of the report the power under review has never been used, or has fallen into disuse, the IRTL may be able to do little more than educate the interested public and fire a warning shot: that was the case with my reviews of citizenship removal and DWA. Where however the invitation is effectively to arbitrate a difference between powerful people, the IRTL’s influence is at its strongest and most direct. In that category were my reports on relocation under TPIMs (disagreement between parties to a coalition government) and the utility of bulk powers (informing opposition thinking on a major Bill). If my spell as IRTL is remembered for anything in ten years’ time, it will be for A Question of Trust. To be commissioned with cross-party agreement to plan a major new law in a controversial area is a rare and enviable task. But the decision to transform A Question of Trust into a Bill was no foregone conclusion. The proposal for judicial approval of warrants, in particular, could easily have rendered it unacceptable to the political figures who had previously been in sole charge of this vital function. Accordingly, the successful landing of A Question of Trust depended not only on the report itself but also on the lights that guided it on to the legislative runway: favourable media reception, a welcome by parliamentarians and judges, endorsement by stakeholders, approval by the broad-based RUSI panel and, of course, political calculation. So influence is a complex phenomenon. It is by a combination of the routes described – together with others, no doubt, yet to be travelled – that the IRTL may hope to contribute to the democratic control of powers used against terrorism.



71 Anderson,

‘The Independent Review of Terrorism Laws’ (n 2).

7 The Use of Special Advocates in Countering Terrorism: Human Rights, Best Practice and Procedural Tradition john jackson* Introduction A familiar theme in much of the literature on counter-terrorism, which Clive Walker has himself addressed in his voluminous and penetrating writings on the subject to which this collection pays tribute, has been the way in which exceptional measures can become normalised within mainstream legal processes.1 In the index to his Guide to Anti-Terrorism Legislation reference is made to a number of special measures. Some, it is true, have remained confined within a relatively narrow remit. Mention is made of ‘special anti-terrorism legislation’, the ‘special criminal process’ and ‘special police powers’, all confined to Northern Ireland.2

* The research for this paper was made possible by a British Academy/Leverhulme Trust Senior Fellowship into the role of the special advocate. The author would like to thank the Special Advocate Support Office for giving support to the research. I conducted interviews with 18 UK special advocates (four in Northern Ireland), seven open counsel (three in Northern Ireland), seven government counsel (two in Northern Ireland) and six judges or commissioners involved in special advocate cases (two in Northern Ireland). 1 See, eg, D Bonner, Executive Measures, Terrorism and National Security (Aldershot, Ashgate, 2007); N McGarrity, A Lynch and G Williams (eds), Counter-Terrorism and Beyond: The Culture of Law and Justice after 9/11 (London, Routledge, 2010) 4; and F Ní Aoláin and O Gross (eds), Guantánamo and Beyond: Exceptional Courts and Military Commissions in Comparative Perspective (New York, Cambridge University Press, 2013) 27f. Clive Walker has illustrated how exceptional features have crept into the normal ‘criminal-justice paradigm’ of terrorist prosecutions. See C Walker, ‘Terrorism Prosecutions in the United Kingdom’ in F Ní Aoláin and O Gross (eds), Guantánamo and Beyond: Exceptional Courts and Military Commissions in Comparative Perspective (New York, Cambridge University Press, 2013) 245. 2 C Walker, Blackstone’s Guide to the Anti-Terrorism Legislation 3rd edn (Oxford, Oxford University Press, 2014) 643–44.

100  John Jackson Most notable here are the non-jury Diplock courts. The exceptional mode of non-jury trial for serious terrorist offences has been largely confined to Northern Ireland, although the Lockerbie bombing trial was famously tried in a specially convened Scottish court sitting in the Netherlands without a jury and there has been some creeping exceptionality into mainstream criminal justice by virtue of a mechanism whereby an application can be made for a non-jury trial where there is a real and present danger of jury tampering.3 By contrast, the central features of another ‘special’ court, the Special Immigration Appeals Commission (SIAC), have not been so contained. The closed material procedures that were established in the Commission to prevent national security information being disclosed to the appellants and the security-cleared special advocates who were appointed to act in their interests in these procedures have instead been exported to such a wide variety of other proceedings (both in specialist tribunals and mainstream courts) that they can hardly be regarded as so very exceptional or ‘special’ any more.4 The closed procedures in which special advocates operate in tribunals such as SIAC have been heavily criticised on the grounds that they derogate from the core principle of open justice and the even more fundamental principle of natural justice.5 But the special advocacy that special advocates practise in such procedures involves almost as much a break from the adversarial tradition as the secret procedures themselves. As in the case of ordinary advocates, special advocates act in the interests of the parties they represent but they do so in a completely different capacity from ordinary advocates in that they do not ‘act’ for the parties they represent and do not owe them a duty of care. The effect of this is to sever the normal professional–client relationship whereby counsel are instructed by their clients through solicitors.6 The novelty of their role was brought home in an oftquoted passage in Lord Bingham’s judgment in R v H and C where he stated that a lawyer who cannot take full instructions from his client, nor report to his client, who is not responsible to his client and whose relationship with the client lacks the quality of confidence inherent in any ordinary lawyer–client relationship, is acting in a way hitherto unknown to the legal profession.7

This involves such a fundamental break from ordinary advocacy that it has been questioned whether special advocates are truly advocates at all.8 The rules

3 See J Jackson, ‘Vicious and Virtuous Cycles in Prosecuting Terrorism: The Diplock Court Experience’ in F Ní Aoláin and O Gross (eds), Guantánamo and Beyond: Exceptional Courts and Military Commissions in Comparative Perspective (New York, Cambridge University Press, 2013) 225, 243. 4 For a list of the cases special advocates appeared in during the period April 2015 until the end of March 2017, see Appendix I. 5 Bank Mellat v HM Treasury [2013] UKSC 38, [3]. 6 For the legal basis of the lawyer–client relationship in English law, see A Boon, The Ethics and Conduct of Lawyers in England and Wales, 3rd edn (Oxford, Hart Publishing, 2014) 297–300. 7 R v H and C [2004] UKHL 3, [2004] 2 AC 135, [22]. 8 See Baroness Kennedy’s remarks in HL Deb 15 Feb 2006, col 1224. For further discussion of the differences between ‘ordinary’ advocacy and ‘special’ advocacy, see J Jackson, ‘The Role of Special

Special Advocates and Countering Terrorism  101 permit special advocates to perform two functions: to test the government’s case for the non-disclosure of material (known as the ‘disclosure’ function) and then to represent the interests of the person in the closed proceedings (known as the ‘representation’ function).9 But special advocates have highlighted the difficulties they have had in performing these functions effectively because of a lack of access to independent expertise and evidence with which to challenge the expert assessments of the Security Service.10 Special advocates are further constrained by being unable to communicate, except in very limited circumstances, with excluded persons or their legal representatives once they have seen the closed material. This means, as a consequence, that they are unable to elicit directly from the excluded person any answer there may be to the closed material and they have no instructing solicitor to support them in their role. The Special Advocate Support Office (SASO) provides valuable support in terms of logistics to special advocates but it does not act as an instructing solicitor. These constraints are justified by the need to safeguard the sources of the intelligence which constitute the basis of the closed material and are a consequence of permitting intelligence to be used as evidence in judicial proceedings.11 But they raise difficult questions about how effectively special advocates can represent the interests of excluded persons. Lord Steyn once famously said that it is important not to ‘pussyfoot about’ the special advocate procedure: in his view, it ‘undermined the very essence of elementary justice’ and involves a ‘phantom hearing only’.12 By way of explanation for this phenomenon, a number of commentators have remarked upon the role that international human rights law has played in giving legitimacy to special advocate procedures.13 In this chapter I examine the role of international human rights law in this regard and consider, more optimally, what transnational best practices have emerged to maximise the fairness to individuals whose interests are represented by special advocates without unduly compromising Advocates: Advocacy, Due Process and the Adversarial Tradition’ (2016) 20 International Journal of Evidence & Proof 343. 9 See Constitutional Affairs Committee, The Operation of the Special Immigration Appeals Commission (SIAC) and the Use of Special Advocates (HC 2004–05, 323–1) [58]. 10 For a summary of the difficulties which special advocates have highlighted, see Response to Green Paper Consultation for Special Advocates (16 December 2011). See also, M Chamberlain, ‘Special Advocates and Procedural Fairness in Closed Proceedings’ (2009) 28 Civil Justice Quarterly 314; M Chamberlain, ‘Update on Procedural Fairness in Closed Proceedings’ (2009) 28 Civil Justice Quarterly 448. 11 For commentary on the intrusion of intelligence into legal procedures, see C Walker, ‘Intelligence and Anti-Terrorism Legislation in the United Kingdom’ (2005) 44 Crime, Law & Social Change 387; K Roach, ‘The Eroding Distinction between Intelligence and Evidence in Terrorist Investigations’ in N McGarrity, A Lynch and G Williams (eds), Counter-Terrorism and Beyond: The Culture of Law and Justice after 9/11 (London, Routledge, 2010) 48. 12 Roberts v Parole Board [2005] UKHL 45, [2005] 2 AC 738, [88]. 13 See, eg, A Kavanagh, ‘Special Advocates, Control Orders and the Right to a Fair Trial’ (2010) 73 Modern Law Review 836; D Jenkins, ‘There and Back Again: The Strange Journey of Special Advocates and Comparative Law Methodology’ (2011) 42 Columbia Human Rights Law Review 279; E Nanopoulos, ‘European Human Rights Law and the Normalisation of Closed Material Procedures’ (2015) 78 Modern Law Review 913.

102  John Jackson security concerns. The chapter then considers a more fundamental question which is whether special advocates can be accommodated at all within the broad adversarial tradition based upon the rule of law or whether, as some have argued, they constitute a ‘legal grey hole’, a legal construct which serves to ‘disguise the erosion of the rule of law and the culture of legality in the exercise of state power’.14 It is argued here that while there is a place for special advocates, careful attention needs to be paid to the appropriateness of using them in closed procedures where challenges are made to counter-terror measures that intrude on fundamental rights.

I.  Special Advocates as Creatures of Human Rights The origins of the special advocate concept can be traced back to the adverse ruling made against the UK by the European Court of Human Rights (ECtHR) in Chahal v UK concerning a number of human rights claims against the UK’s decision to deport Mr Chahal to India because of his alleged involvement in terrorist activities in support of Sikh separatism.15 The Court upheld Mr Chahal’s contention that his detention pending deportation breached Article 5(4) of the European Convention on Human Rights (ECHR) because there was ineffective judicial supervision of the grounds justifying his detention. Although the Court accepted that the use of confidential information may be unavoidable where national security is at stake, it ruled that this did not mean that national authorities can be free from effective control by the domestic courts when they choose to assert that national security and terrorism are involved. In a sentence that was hailed as giving the green light to the special advocate system, the Court stated that there are ‘techniques which can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural fairness’.16 The Court never endorsed a special advocate system as such; however, in noting the submissions of intervening NGOs that similar closed proceedings in Canada involved the ‘use of a security-cleared counsel instructed by the court, who cross-examines the witnesses and generally assists the court to test the strength of the State’s case’,17 the Court gave the impression that such a system could provide a workable compromise between the demands of national security and due process. The UK rapidly acted on this apparent endorsement by the ECtHR and provided for the use of security-cleared special advocates in SIAC when it was constituted under the Special Immigration Appeals Act 1997. Special advocates 14 C Murphy, ‘Counter-Terrorism and the Culture of Legality: The Case of Special Advocates’ (2013) 24 King’s Law Journal 19, 33, citing D Dyzenhaus, The Constitution of Law (Cambridge, Cambridge University Press, 2006). 15 Chahal v UK (1996) 23 EHRR 413. 16 ibid [131]. 17 ibid [141].

Special Advocates and Countering Terrorism  103 were to be appointed by the Attorney General to act independently in the sole interests of the person excluded from the closed proceedings. This differed from the Canadian model that the ECtHR had referred to where security-cleared counsel had been used to assist the Security Intelligence Review Committee (SIRC) in making recommendations on whether a security certificate should be issued against permanent residents on national security grounds. The special advocate model and not the SIRC model later came to be adopted in Canada itself after SIRC’s role in immigration matters was abolished and the system it replaced of Federal Court review without any representation on behalf of the interests of affected parties was struck down by the Canadian Supreme Court in Canada v Charkaoui on the ground that it breached section 7 of the Canadian Charter of Rights and Freedoms.18 After Chahal, the ECtHR appeared to give the green light to the use of special counsel in other contexts.19 In A and others v UK, however, a direct challenge was made to their use in closed SIAC procedures where foreign nationals were appealing their indefinite detention on grounds of involvement in international terrorism, without knowing the full case against them.20 The Court stated that in view of the dramatic impact of the lengthy deprivation of liberty on the applicants’ fundamental rights, Article 5(4) of the ECHR must import ‘substantially the same fair trial guarantees as Article 6(1) in its criminal aspect’.21 But it went on to consider that against the background of the post-9/11 emergency situation which existed in the UK, full disclosure of the allegations and evidence against the applicants was not possible and the use of a special advocate could constitute a sufficient counterbalance if the individual was ‘provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate’.22 At one level this important qualification to the special advocate procedures seemed to be a welcome affirmation of due process principles, setting minimal disclosure as a ‘baseline’ requirement, and stressing the importance of giving the subject a basis on which to meet the allegations against him. But the judgment was very case specific in its reference to this standard of disclosure and appeared to send out two signals which have arguably done much to entrench the special advocate system as capable of guaranteeing sufficient fairness across a wide spectrum of closed judicial proceedings. First, in cases like Chahal the ECtHR seemed to suggest that special advocates could be used as a technique to raise the level of procedural protection up to a standard that had hitherto been lacking. But here the ECtHR seemed to be endorsing their use as a counterbalancing measure 18 Charkaoui v Canada (Citizenship and Immigration) [2007] 1 SCR 350, 2007 SCC 9. 19 See, eg, Tinnelly & Sons Ltd and others v UK, McElduff and others v UK (1998) 27 EHRR 249, [78]; Jasper v UK (2000) 30 EHRR 441; Fitt v UK (2000) 30 EHRR 480; Edwards and Lewis v UK (2005) 40 EHRR 24. 20 A and others v UK (2009) 49 EHRR 29. 21 ibid [217]. 22 ibid [220].

104  John Jackson to lower the level of procedural protection below that which had been previously guaranteed to those subjected to lengthy deprivation of liberty, namely a right to be given full disclosure of the case against them. Secondly, the fact that the ECtHR was highlighting that the special advocate system needed to be buttressed with at least a minimal level of disclosure to those entitled to substantially the same fair trial guarantees as Article 6 in its criminal aspect suggested that the special advocate system alone, without the minimal disclosure standard, might be an adequate safeguard for other closed judicial procedures that do not carry the same or similar consequences as criminal trials.23 Rather than making minimal disclosure to the individual, the bedrock counterbalancing measure of any closed procedure, the special advocate system seemed to become the bedrock counterbalancing procedure and the only remaining issue then was whether a minimal disclosure standard was also necessary in order to satisfy Article 5(4) or Article 6. This is exactly the issue that came to the forefront in domestic UK cases after A v UK was decided. In Secretary of State for the Home Department v AF the House of Lords applied A-type disclosure to control order cases.24 But it would seem that this is reserved for cases which concern what have been called ‘objectively high level rights’ which impinge directly on personal freedom and liberty such as detention, control orders and freezing orders, and that measures falling short of this, for example affecting employment, do not require A-type disclosure.25

II.  From International Human Rights Law to Transnational Best Practice Having given the signal that special advocates are a satisfactory counterbalancing measure for practically any non-criminal procedure (albeit with the proviso that in certain cases an irreducible core minimum of disclosure should be provided to the affected party), the ECtHR opened the door to an institution that one commentator has said would previously have been unthinkable.26 By failing to identify the different procedural contexts affected by its rulings, the Court went from noting the special advocate system as a means of raising existing levels of protection to endorsing it as a means of lowering existing levels of protection. This points to a weakness in using international human rights law as a benchmark for good or best practice. International human rights law would appear to be all too conscious of the need to balance different interests – security against fairness – in a manner that gives Member States a wide margin of appreciation in protecting populations 23 Nanopoulos (n 13) 926. 24 Secretary of State for the Home Department v AF [2009] UKHL 28, [2010] 2 AC 269. 25 AZ v SSHD [2017] EWCA Civ 35, [29]–[30] (Burnett LJ). See also Tariq v Home Office [2011] UKSC 35, [2012] 1 AC 452 and for further discussion J Jackson, ‘Justice, Security and the Right to a Fair Trial: Is the Use of Secret Evidence Ever Fair?’ (2013) Public Law 720. 26 Nanopoulos (n 13) 925.

Special Advocates and Countering Terrorism  105 from terrorist attacks and makes them all too willing to accede to counterbalancing safeguards whatever the context. Now that special advocates are established, the focus has shifted away from whether they should be used to what are the best practices that should be adopted within the institution. Although human rights law has accepted that there are now limits on the principle of full disclosure which can be met by special advocates, different countries have developed different practices in the way that such advocates should operate. In one comparative study, Cole and Vladeck set out to identify ‘best practices’, namely those features that maximise fairness to individuals who are challenging their detention or deportation without unduly jeopardising security.27 They took their cue from the principle established by the Canadian Supreme Court in Charkaoui that since the use of secret evidence so directly compromises the fundamental fair trial principle that individuals should be able to see and confront the evidence used against them, those compromises should be ‘minimally i­ntrusive’.28 From this principle, they adopted the prescription that where one nation has demonstrated that practices more conducive to fair processes can be undertaken without unduly compromising security, other nations should be required to adopt those measures as well, or at least at a minimum meet a heavy burden of justifying why such a procedures would not be practicable in their jurisdiction.29 Cole and Vladeck looked particularly at the ways in which the UK, Canada and the United States use security-cleared counsel to increase the adversarial character of closed procedures and found that each of the three nations adopted distinct practices with respect to the constraints on and powers of cleared counsel. The practices they identified as helping to maximise fairness included the requirement that those who face measures that impinge directly on their freedom and liberty are apprised of a core gist of the case against them. We have seen that this is a requirement of international human rights law but it has been entirely lacking in the habeas corpus cases where non-US citizens detained at Guantanamo Bay have attempted to challenge their detention.30 Other measures included giving securitycleared access to the entire intelligence file; permitting communication with the affected party subject to permission or signing a confidentiality or protective order not to disclose closed material; and, finally, allowing counsel to actually represent clients in closed procedures if they could obtain security clearance. Cole and Vladeck claimed that each of these measures had been made to work in different countries without unduly jeopardising national security. The difficulty, as we shall see, however, is that some of them rub up against well-established professional 27 D Cole and SL Vladeck, ‘Navigating the Shoals of Secrecy: A Comparative Analysis of the Use of Secret Evidence and “Cleared Counsel” in the United States, the United Kingdom and Canada’ in L Lazarus, C McCrudden and N Bowles (eds), Reasoning Rights: Comparative Judicial Engagement (Oxford, Oxford University Press, 2014) 161, 171. 28 ibid 171. 29 ibid 171–72. 30 ibid 173.

106  John Jackson practices regarding the use of intelligence within the intelligence community and relations between counsel and their clients.

A.  The Intelligence File We have seen that one of the important functions that special advocates perform is to argue for greater disclosure of closed material to the excluded party and her legal representatives. But a further question is how much disclosure of closed material should be given to special advocates themselves. At present in the UK, government counsel carry out an ‘exculpatory review’ owing a ‘duty of candour’ to search for and produce material which may undermine the government’s own case or assist the excluded party.31 This is similar to the kind of exercise which the Crown Prosecution Service engages in when disclosing exculpatory information to defendants in criminal trials.32 On occasions special advocates have complained about the absence of relevant information afforded to them.33 But there are wellestablished traditions at the Bar requiring duties of candour between counsel and there appears to be a high degree of trust that government counsel will carry out the exculpatory review diligently. Government counsel indicated that they could be more frank with special advocates in the knowledge that anything said will not get back to the client. The difficulty, however, as pointed out by SIAC itself, is that government counsel are not best placed to judge how particular material might be used by the special advocate.34 Special advocates indicated that they were often reluctant to ask for information and contrasted their situation with a criminal case where you are often asking for something very specific. The danger with asking for something when you have no idea what it contains is that it may turn out to damage the interests of the appellant whose interests you are supposed to ­represent. Cole and Vladeck pointed to the practice that has been afforded to special advocates in Canada whereby they are given access to the full intelligence file on the affected individual, and not just the evidence that the government seeks to use and any exculpatory material. They argued that this is an important advantage as it puts the special advocate and the government on the same footing regarding the government’s evidence, allowing the special advocate to make his or her own assessment of what evidence might be helpful to the affected party and to make arguments based on contradictions in the government’s files. This practice seemed to arise from the Canadian Supreme Court decision in Charkaoui II which

31 See AS & DD (Libya) v SSHD 27 April 2007, SC/42 and 50/2005, [416]. See also SIAC Practice Note noting that SSHD have a duty to disclose exculpatory material. 32 See Criminal Procedure and Investigations Act 1996, s 3. 33 See, eg, Abu Qatada v SSHD 26 February 2007, SC/15/2007 [528]. 34 Ajouaou and A, B, C and D v SSHD 29 October 2003, SC/1/2002/, SC/6/2002, SC/7/2002, SC/9/2002, SC/10/2002 [281].

Special Advocates and Countering Terrorism  107 required the minister to file with the Court and deliver to the special advocates any and all of the information relating to the named person.35 More recently, however, the Canadian government would seem to have reined back from this practice. Under recent amendments to the Immigration and Refugee Protection Act, which met with strong resistance from special advocates, the minister now only needs to disclose information and other evidence ‘that is relevant to the ground of inadmissibility stated in the certificate and on which the certificate is based’ and can escape from disclosing highly sensitive information if it ‘does not enable the named person to be reasonably informed of the case made by the minister’.36 The change of policy would seem to reflect government and intelligence service concerns that there are certain kinds of information that are so highly sensitive that they cannot be entrusted even to security-cleared special advocates. Intelligence agencies have long operated on a ‘need to know’ principle that is instinctively averse to any widespread dissemination of intelligence.37 Special advocates in the UK have not asked for access to the whole intelligence file. They have, however, consistently complained about the lack of access to independent expertise and evidence.38 The possibility has been raised as to whether either serving or former employees of the intelligence agencies could be delegated to assist them in their disclosure and representational roles.39 In its Green Paper on the Justice and Security Bill, the government stated baldly that it would not be appropriate for serving or former employees of the agencies to take on such a role.40 But it has been pointed out that the ‘judicialisation of intelligence’ has required intelligence agencies to be more cooperative in sharing intelligence.41 They are now increasingly required to testify in court procedures and be subjected to crossexamination by open counsel and special advocates. Is it then a step too far to ask intelligence officers to work for special advocates with a Chinese wall placed between them and other intelligence officers?

B. Communications Special advocates are not permitted to communicate with any person about any matter connected with the proceedings once served with the closed material 35 Charkaoui v Canada (Citizenship and Immigration) [2008] 2 SCR 326, 2008 SCC 38. 36 Immigration and Refugee Protection Act 2001, s 77(2) and s 83(1) respectively, amended by the Anti-Terrorism Act 2015. See C Forcese and K Roach, False Security: The Radicalization of Canadian Anti-Terrorism (Toronto, Irwin Law, 2015) 68–69. 37 Roach (n 11). 38 See Response to Green Paper Consultation (n 10). 39 See the written submission of Lord Carlisle to the House of Commons Constitutional Affairs Committee (n 9) Ev 39. See also the Joint Committee on Human Rights, Counter-Terrorism and Human Rights: 28 days, intercept and post-charge questioning, 19th Report of Session (2006–07, HL 157, HC 394) Ev 19–20, Q 78. 40 Ministry of Justice, Justice and Security Green Paper (Cm 8194, 2011) App 7, [4]. 41 Roach (n 11) 56.

108  John Jackson unless they seek directions from the court or the Commission authorising them to communicate with the appellant or his or her representative or with any other person.42 Special advocates have indicated that they very rarely seek such permission, partly because they know that it is unlikely to be forthcoming in practice if the purpose is to discuss anything to do with the closed case, and partly because the rules require any application for such permission to be served on the Secretary of State which carries the risk that it might give away to the opposing side part of the closed evidence to which the excluded persons may not have an e­ xplanation.43 Despite calls by special advocates and various parliamentary committees for the rule to be relaxed, the UK government has consistently opposed this on the ground that without detailed knowledge of the investigation, or other linked investigations, the special advocates could inadvertently disclose the identity of an agent or details of ongoing investigations. The government view is that in order to know whether the proposed communication could be damaging to national security, those familiar with the day-to-day operation of that and connected investigations must be able to review any proposed communication.44 One government counsel interviewed considered that the Security Services simply could not tolerate a situation where they disclose information which could inadvertently get into the hands of terrorists. The whole point of the special advocate system was that it gave them the assurance that there would be no communication with the excluded party. One innovation that seems to have been accepted is that a Chinese wall is erected between government counsel and those clearing communication requests within the Security Services, but it seems that there is still considerable reluctance among special advocates to make requests which may disclose the contents of privileged communications. Even if the objection to revealing litigation strategy to opposing government counsel can be overcome, there is still the difficulty about potentially disclosing litigation strategy to the judge. In contrast to these restrictions in the UK, Cole and Vladeck referred to the practice in the US whereby security-cleared counsel acting on behalf of excluded parties are able to communicate with them even after they have been shown classified information, although they are made subject to protective orders barring any disclosure of this information to their clients. No amount of access to the excluded party can make up for the inability of the excluded party to confront the evidence against him. But they reported that Guantanamo lawyers have learned that their questioning of detainees can often be guided usefully by the closed evidence without impermissible disclosures.45 In Canada, it seems that a half-way house has developed between the UK and US approaches to communications whereby judicial authorisation is required for any communications between the special advocate and the excluded party but applications can be made ex parte

42 See,

eg, Special Immigration Appeals Commission (Procedure) Rules 2003, r 36. Committee on Human Rights (n 39) [201]. 44 Justice and Security Green Paper (n 40) [2.30]. 45 Cole and Vladeck (n 27) 172. 43 Joint

Special Advocates and Countering Terrorism  109 to the judge without having to be disclosed to the government side. The Special Advocate Program which provides administrative support to special advocates is responsible for organising and supervising any authorised communications. In its final report recommending the selective use of special advocates in a range of civil and criminal cases where national security information is involved, the New Zealand Law Commission favoured an approach whereby the court oversees any communications between the special advocate and the excluded party and that court oversight is preferable to any requirement that the Crown be notified of communications.46 In Canada v Harkat the Canadian Supreme Court exhorted judges to take a ‘liberal’ approach in authorising communications and only to refuse an authorisation where on the balance of probabilities there was ‘a real as opposed to a speculative risk of injurious disclosure’.47 A recent study of Canadian practice, however, found that the ease with which a special advocate may secure authorisations depended very much on the designated judge and this depended on trust-building and familiarity between the special advocate and the judge and between the government, the Canadian Intelligence Service and the judge.48 It seems though that special advocates are still reluctant to make applications on the ground that it may prejudice the excluded person by enabling the judge to infer something inculpatory about them. The answer to this would be to enable communication requests to be made to a judge other than the designated judge hearing the case, but this does not seem to have occurred in practice.

C.  Other Models of Security-Cleared Lawyers Unlike other common law systems, the US has a long history of using securitycleared counsel to represent their clients in closed procedures, giving them access to classified information but binding them to protective orders which govern how they may use the classified information and those to whom it may be disclosed. Their use in criminal proceedings dates back to the Classified Information Procedures Act 1980 which has been used in recent years in terrorist prosecutions to give security-cleared defence counsel access to classified discovery to identify that which would be useful for the defence at trial.49 Security-cleared counsel have also been used in Guantanamo litigation where security-cleared counsel for ­Guantanamo detainees are allowed to access information which their clients will not see.50 46 New Zealand Law Commission, The Crown in Court: A Review of the Crown Proceedings Act and National Security Information in Proceedings (2015) [9.23]. 47 Canada (Citizenship and Immigration) v Harkat 2014 SCC 37, [2014] 2 SCR 33, [70]. 48 G Hudson, ‘Behind Closed Doors: The Judicial Administration of “Secret Trials” in Canada’ (forthcoming). 49 LK Donohue, ‘Terrorism Trials in Article III Courts’ (2015) 38 Harvard Journal of Law & Public Policy 105. 50 But see ch 8 (Ní Aoláin) in this collection for a critique.

110  John Jackson According to Cole and Vladeck, it is the inability of UK and Canadian special advocates to consult with the client and the client’s lawyer that is perhaps the single biggest obstacle to mounting an effective defence in these jurisdictions.51 A different model whereby the client’s own lawyer is given security clearance to view closed information and is able to continue to consult with their client was regarded by the New Zealand Law Commission as having the advantage and disadvantage of being a unique and largely untrialled system in Commonwealth jurisdictions.52 The idea of counsel giving confidentiality undertakings is not entirely unknown here. In its review of less intrusive models that preserved Article 7 Charter rights while protecting sensitive information, the Canadian Supreme Court in Charkaoui I referred to the procedure adopted in the Air India trial involving the terrorist bombing of a passenger aircraft in Japan, whereby defence counsel conducted a preliminary review of national security material on the written undertaking that they would not disclose the material to their clients. The idea of counsel giving confidentiality undertakings is not entirely unknown in the UK context either, although it is discouraged in criminal cases.53 There has been support voiced for the use of independent counsel giving confidentiality undertakings in the counter-terrorism, immigration and deportation contexts.54 A party’s own lawyer is the most familiar with the case and can place the closed information in the context of the case as a whole. But the UK courts have alluded to a number of practical difficulties with confidentiality undertakings including the risk of inadvertent disclosure, the risk if such disclosure took place that the source would be unknown and suspicion would fall on the innocent, and the invidious position in which the court or commission could find itself in having to take a view about the willingness or ability of an advocate to abide by the terms of the undertaking.55 Above all, however, such undertakings clash with the strongly held ethos that at the heart of the lawyer–client relationship is the idea that lawyers share all information with their clients so that they will be able to receive proper instructions. In its final report the New Zealand Law Commission opted for the special advocate model having taken into account concerns raised by the legal profession that the ‘own counsel’ undertaking model cut across the lawyer–client relationship.56 It would seem that the preference for the special advocate system is based on the need to preserve confidentiality between lawyer and client, and if there have to be closed proceedings where information is kept back from the client then it is better to establish a special advocate system which makes no claim to the lawyer–client relationship existing. 51 Cole and Vladeck (n 27) 172. 52 New Zealand Law Commission, ‘National Security Information in Proceedings’ (2015) Issues Paper 38, [6.55]. 53 Attorney General’s Guidelines on Disclosure, [46]. 54 See M Code and K Roach, ‘The Role of the Independent Lawyer and Security Certificates’ (2000) 52 Criminal Law Quarterly 85; and the submissions of behalf of Liberty in RB (Algeria) & U (Algeria) v SSHD [2009] UKHL 10. 55 BB v SSHD SC/39/2005; AKH v SSHD [2013] EWHC 1426 (Admin) (Ouseley J). 56 New Zealand Law Commission (n 46) App 3, [34].

Special Advocates and Countering Terrorism  111 Another model which eschews any lawyer–client relationship between the security-cleared lawyer and the excluded party is to appoint an amicus curiae or counsel to the court who, like the special advocate, is tasked with representing the interests of the party in the closed proceedings but, unlike the special advocate, works for and assists the court or the reviewing tribunal or commission. This is the model that was used by the Security Intelligence Review Committee in Canada when it had the power to vet findings of inadmissibility based on threats to national security. It was referred to in Charkaoui as a less intrusive alternative than a pure court review since it introduced an adversarial process into what was otherwise an inquisitorial one. This model of a court appointed lawyer is the one that appears to be used now in the US within the Foreign Intelligence Surveillance Court to assist the Court in its consideration of applications to conduct foreign surveillance and collect foreign intelligence.57 It is also the model used in the UK by the Investigatory Powers Tribunal, which decides complaints of unlawful intrusion by public bodies, to assist it in its closed hearings so that submissions are made from the perspective of the claimant’s interests.58 Although the role that these counsel play is somewhat akin to that of special advocates, there are a number of respects in which the role is different. First, as counsel for the court they are in a stronger position than special advocates to demand that the government disclose relevant information. Secondly, they are able to communicate with the excluded persons after they have access to closed material before they question the government witnesses or make their submissions. Thirdly, however, although they can be asked by the court to explore all lines of enquiry including the perspective of those who cannot participate in the process, they do not act specifically in the interests of the excluded party and communications between them and the excluded party are not privileged. It would seem that the court appointed counsel may be better equipped than a special advocate to ferret out information to assist the court or tribunal in its task of seeking the truth. But a heavy price is paid in terms of bearing any resemblance to an adversarial process where the parties retain control over the proceedings. The court appointed amicus is even more remotely connected with the excluded party than the special advocate, although by being able to communicate with the excluded party he or she is able to get a good sense of their position. This points to the importance of looking at what the proceedings are designed to achieve and what is at stake for the parties when considering the most appropriate mode of security-cleared counsel.

III.  Putting Special Advocates in their Procedural Place We have seen that a number of practices that can claim to represent best practice in terms of impacting the least on due process without unduly compromising

57 USA 58 See

Freedom Act 2015 50 USC § 1803(i). Liberty and Privacy International v GCHQ [2015] HRLR 2, 5 December 2014, [8].

112  John Jackson security concerns nevertheless pose challenges to well-established traditions. Some traditions can over time be shed if they are seen to be obsolete and resistant to best or better practice. But if the practice is at odds with fundamental core values underpinning the tradition, there are questions about whether it ought to be prescribed. Cole and Vladeck are mindful of this towards the end of their study when they raise questions about whether the use of security-cleared counsel, in whatever mode, is inescapably flawed because they do not adequately compensate for the use of closed procedures that strike at the heart of adversarial values of open and natural justice.59 A more direct challenge to the use of security-cleared advocates is to see them as subverting the very notion of adversarial litigation because they inevitably entail parties losing control of their case. Adversarial procedure for some is not just a mode of litigation but is linked to fundamental notions such as dignity and the rule of law by giving individuals an opportunity to participate in the proceedings to which they are subject.60 The introduction of professional lawyers arguably reduces the autonomy of parties but when they act on behalf of parties, they do so owing duties to them with the parties, at least in theory, still able to make certain key decisions over the course of the litigation. When special advocates go into closed procedures unable to communicate with the excluded party, on the other hand, the excluded party loses control.61 The reality of much modern litigation, however, is that it is less of a dispute between two parties and more a process which has to accommodate a number of different interests at stake and this can sometimes require that information is held back from a party. As prosecutors have been required to disclose more information to the defence in criminal proceedings, other interests such as the need to secure the safety of informants and potential witnesses have led them to make Public Interest Immunity (PII) applications that they should be exempt from having to make full disclosure. When special counsel are appointed to represent the interests of the defence in PII hearings which defendants and their counsel cannot attend, it is hard to argue that they pose a significant threat to the modern adversarial trial, especially since their role is limited to arguing for greater disclosure to the defence rather than taking over the running of the defence for the defendant and her counsel. We have seen that the use of security-cleared counsel is common in terrorist prosecutions in the US because of the amount of classified information generated by the investigation. It can similarly be argued that in UK terrorist prosecutions where PII applications are made for a large amount of closed material, it would be beneficial for the defence to have a special counsel appointed. In its final report the New Zealand Law Commission recommended that a special advocate

59 Cole and Vladeck (n 27) 174–76. 60 See, eg, J Waldron, ‘How Law Protects Dignity’ (2012) 71 Cambridge Law Journal 200. 61 See A Boon and S Nash, ‘Special Advocacy: Political Expediency and Legal Roles in Modern Judicial Systems’ (2016) 9 Legal Ethics 100, 116–17.

Special Advocates and Countering Terrorism  113 be used in a pre-trial hearing on the question of non-disclosure of national security information.62 There may be other instances where special counsel could help advance the interests of the defence in terrorist investigations and prosecutions. One such instance which has been recognised in England Wales is where anonymity orders are sought by the prosecution.63 Here the role of such counsel is not simply to argue for greater disclosure to be made about the witnesses subject to such an order, but to make submissions as well on the merits of making an order in the first place. Arguments can also be made for the greater use of special counsel in other situations where evidence is kept from the defence before trial. Under the Terrorism Act 2000, for example, applications can be made to extend the detention of a terrorist suspect after arrest without giving notice of the information on which the application rests.64 The ECtHR has held that Article 5(4) does not preclude the holding of a closed hearing to allow the court to consider confidential information provided the authorities disclose adequate information to enable the applicants to know the nature of the allegations against them.65 The Court went on to say that although the Terrorism Act did not provide for the appointment of a special advocate, there was nothing to preclude such an appointment if it was necessary in the interests of justice. This case raises the question whether special counsel could be deployed in other situations where ex parte applications are made before trial for certain kinds of warrants such as search warrants or surveillance warrants. In certain Australian states, a role somewhat analogous to that of the special advocate or special counsel is to be found in that of the Public Interest Monitor whose job is to introduce an element of adversariality into police applications for search warrants and surveillance warrants when these are made ex parte.66 More specifically, the Monitor is tasked with appearing at any application for a surveillance warrant or covert search warrant to test the validity of the application and for that purpose to present questions for the applicant to answer and to examine or cross-examine any witness and make submissions on the appropriateness of granting the application. The New Zealand Law Commission recommended that where the disclosure of grounds for a search or surveillance warrant may prejudice national security, the person subject to the warrant should be able to challenge it through a special advocate.67 It is also interesting to note that in Denmark and Sweden so-called privacy

62 New Zealand Law Commission (n 46) [8.21]–[8.26]. 63 See Coroners and Justice Act 2009, s 86 and Guidelines on the Prosecutor’s Role in Applications for Witness Anonymity Orders: Criminal Evidence (Witness Anonymity) Act D. 64 Terrorism Act 2000, sch 8, para 33(2)(3). 65 Sher and others v UK App no 5201/11, 14 March 2016. 66 In Queensland, the Public Interest Monitor is governed by the Police Powers and Responsibilities Act 2000, the Crime and Corruption Act 2001 and the Telecommunications Interception Act 2009. Victoria has created a PI Monitor under the Public Interest Monitor Act 2011. For discussion see Justice, Secret Evidence (London, Justice, 2009) [333]–[337]. 67 New Zealand Law Commission (n 46) [8.14]–[8.19].

114  John Jackson advocates who are security vetted in certain cases are appointed to represent the interests of parties for whom surveillance measures are applied for.68 Questions may be asked as to which mode of security-cleared counsel is more appropriate in ex parte applications of this kind – a special advocate, a court appointed advocate or a public interest monitor. These are not adversarial proceedings per se and the role here is more one of assisting the court in testing the grounds for the measure than one of representing the interests of a party to the proceedings. As noted above, the Investigatory Powers Tribunal has adopted this model rather than a special advocate model. It becomes more difficult to justify the use of special advocates in situations where they are appointed to act in closed procedures which are used to review or appeal against counter-terrorism measures that restrict the liberty and freedom of individuals such as control orders or TPIMs. These proceedings are not purely adversarial in the conventional sense of being lis inter partes proceedings as they have to balance a ‘triangulation’ of interests, protecting the public, protecting the excluded party and protecting the disclosure of information that may harm the public interest. But it can be argued that the adversarial tradition which is anchored in the need to protect fundamental rights against the coercive measures of the state demands that those who are deprived of such rights have the opportunity to challenge such measures in a judicial process which permits them to participate as fully as possible.69 The question then, as the Canadian Supreme Court put it in Canada v Harkat, is whether special advocates are able to provide a ‘substantial substitute’ for personal participation by the individual.70 We have seen that those affected may be given a core minimum of disclosure to answer the allegations against them and give effective instructions to the special advocate, but there remain obstacles for special advocates who are unable to communicate effectively with the excluded individual. Whether or not the threshold of ‘substantial substitution’ is reached in any particular case would seem to require a very fact-specific analysis. There is more at stake here, however, than just the individual’s right to participate in the proceedings. A broader consideration that has to be weighed in the balance is the reputation of the courts themselves which have a responsibility to ensure that justice is not only done but seen to be done.71 For all the trust that one can have in special advocates carrying out their role faithfully, acting in the interests of the excluded party in the closed hearing, the fact remains that the adversarialism that they bring to the closed procedure is unseen by the excluded party and the wider public at large, and the closed nature of the process arguably

68 See LB Langsted, P Garde and V Greve, Criminal Law in Denmark, 3rd edn (Copenhagen, Djoef Publishing, 2011) 156. 69 See D Barak-Erez and MC Waxman, ‘Secret Evidence and the Due Process of Terrorist Detentions’ (2009) 48 Columbia Journal of Transnational Law 3, 37. 70 2014 SCC 37, [2014] 2 SCR 33, [47]. 71 See Al Rawi and others v Security Service and Others [2010] EWCA Civ 482, [56].

Special Advocates and Countering Terrorism  115 intrudes upon the courts’ existential role. In the different context of discussing the new international criminal tribunals Roberts has drawn attention to the fundamental bond that courts owe to the procedures that they operate.72 Questions of substantive law do not engage the court’s institutional preconditions of existence in quite the same way. A court that enforces an unjust law might still be regarded as a properly constituted tribunal, but a court which fails to secure fair trials with due process is a self-parody and corruption of the core commitments which qualify judicial institutions as judicial. It has been argued that special advocates or security-cleared lawyers have their place in certain aspects of the judicial process but when they act in closed procedures for persons who have been deprived of their fundamental rights by counter-terror measures, the reputation of the judicial process as a whole is damaged and the question then becomes whether the damage is worth sacrificing for the gains that the counter-terror measures may bring.

Appendix I Types of Special Advocate Cases Opened in the UK (April 2015–March 2017) April 2015–March 2016 Proscribed Organisation

April 2016–March 2017

1

Exclusion

1

Naturalisation

49

9

Deportation

1

1

Deprivation of Citizenship Travel Documents

4 1

Passport Revocation Asset Freezing/Sanctions

1 1

Financial Restriction Private Law Damages TPIMs

1 3

2 (+3 Northern Ireland)

7 (+7 Northern Ireland)

2

6

Other Judicial Review

4

Vetting

1

3

Employment

2

3

Care/Family Proceedings

2

4

Parole (Northern Ireland)

3

Total

68

54

Source: SASO. 72 P Roberts, ‘The Priority of Procedure and the Neglect of Evidence and Proof ’ (2015) 13 Journal of International Criminal Justice 479, 487–88.

116 

8 Lawyers, Military Commissions and the Rule of Law in Democratic States fionnuala ní aoláin* Introduction Clive Walker’s many insights into the legal regulation of terrorism and ­counter-terrorism, while primarily focused on the United Kingdom, were not exclusively directed to a British audience nor to analysis of experiences and insights from one jurisdiction. Rather, Clive’s engagement was also global and comparative, and this chapter follows the same tradition of local–global nexus and a focus on the comparative dimensions of human rights and counter-­terrorism interface.1 Clive’s comparative preoccupations particularly brought him to examine the counter-terrorism policies of the United States. His writings in this vein tackle the role of executive powers in US anti-terrorism regulation and the ways in which, particularly post 9/11, the United States resorted to extra-judicial powers approaches, rather than punishing terrorism under regular criminal law procedures. Clive was a vocal critic of the due process violations at Guantanamo Bay and at Black Sites around the globe arguing consistently that counter-terrorism laws should be held within the criminal law and that the ‘war model’ was counterproductive in the counter-terrorism context.2 This chapter delves into the ongoing

* This chapter acknowledges Clive Walker’s consistent support and encouragement for my work over many years. My thanks to Mary Beale for research assistance. 1 See, eg, A Masferrer and C Walker (eds), Counter-Terrorism, Human Rights and the Rule of Law: Crossing Legal Boundaries in Defence of the State (Cheltenham, Edward Elgar, 2013). 2 See, eg, C Walker (ed), Contingencies, Resilience and Legal Constitutionalism (Abingdon, Routledge, 2015); C Walker, ‘The Impact of Contemporary Security Agendas Against Terrorism on the Substantive Criminal Law’ in A Masferrer (ed), Post 9/11 and the State of Permanent Legal Emergency (Dordrecht, Springer, 2012); A Masferrer and C Walker, ‘Countering Terrorism and Crossing Legal Boundaries’ in A Masferrer and C Walker (eds), Counter-Terrorism, Human Rights and the Rule of Law: Crossing Legal Boundaries in Defence of the State (Cheltenham, Edward Elgar, 2013); C Walker, ‘Prisoners of “War all the Time”’ [2005] European Human Rights Law Review 50; C Walker, ‘Keeping Control of Terrorists

118  Fionnuala Ní Aoláin challenges of rule of law adherence in a counter-terrorism context with a particular focus on trial and detention as focal points of state interaction with non-state actors, and the management of conflict and terrorism through the courts. It is generally accepted that the events of 11 September 2001 wrought substantial changes to the legal and political universe in many states. This is evidenced by the large-scale resort to exceptional legal regulation, the recourse to a range of extra-legal measures to respond to perceived and actual threats by the United States, and the establishment and institutionalisation of a global counterterrorism framework at the United Nations which has been reinforced regionally and nationally by states.3 Many states post 9/11, but most especially the United States, have placed sizeable limitations on due process rights which include restrictions on access to courts and the entrenchment of exceptional courts to respond to terrorist threats, most notoriously by the deployment of military tribunals to try persons deemed ‘enemy combatants’.4 Limitations on due process rights are not a new feature of state responses to crisis.5 Historically, they have been the front line legal approach adopted by states to combat internal and external threats to security.6 Despite those limitations democratic states fairly consistently cling to certain core vestiges of the due process package. This chapter places its analysis in the context of those pivotal retentions and seeks to assess the manner in which, despite the demands of crisis, democratic states hold on to certain protections and forsake others. In particular, I examine the manner in which democratic states generally continue to maintain the right to counsel for a suspected person, even when those persons have been charged with ‘new’ offences, detained for extended periods, and are subject to trial processes that depart considerably from the general legal norms accepted in normal times. Critical to the analysis is the retention of a formal right of access to counsel, allied

Without Losing Control of Constitutionalism’ (2007) 59 Stanford Law Review 1395, 1398–400; C Walker, ‘The Treatment of Foreign Terror Suspects’ (2007) 70 Modern Law Review 427, 429–32. 3 F Ní Aoláin, ‘Balancing Human Rights: International Legal Responses to Terrorism in the Wake of September 11th’ (2003) Israel Yearbook of Human Rights 63; DF Orentlicher and RK Goldman, ‘When Justice Goes to War: Prosecuting Terrorists Before Military Commissions’ (2002) 25 Harvard Journal of Law & Public Policy 653. 4 See, eg, F Ní Aoláin and O Gross (eds), Guantánamo and Beyond: Exceptional Courts and Military Commissions in Comparative Perspective (New York, Cambridge University Press, 2013); CI Logosi, ‘Rule of Law or Rule by Law: The Detention of Yasser Hamdi’ (2003) 30 American Journal of Criminal Law 225 (a detailed assessment of the limitations placed on due process rights of American citizens deemed ‘enemy combatants’). 5 F Ní Aoláin, ‘The Individual Right of Access to Justice in Times of Crisis: Emergencies, Armed Conflict, and Terrorism’ in F Francioni (ed), Access to Justice as a Human Right (Oxford, Oxford University Press, 2007). 6 See, eg, L Fisher, Military Tribunals: Historical Patterns and Lessons (CRS Report for Congress, 2004); see also for comparative analysis, J Davis, ‘A Cautionary Tale: Examining the Use of Military Tribunals by the United States in the Aftermath of September 11 Attacks in Light of Peru’s History of Human Rights Abuses Resulting from Similar Measures’ (2002) 31 Georgia Journal of International and Comparative Law 423 (in particular for its analysis of the resort to military tribunals by Peru and attendant procedural aspects of these military procedures).

Lawyers, Military Commissions and Rule of Law  119 with attempts to peel away its substantive content. I focus particularly on the right to counsel in exceptional courts, specifically military commissions to explore tensions and challenges. The right of access to counsel did not survive the ‘war on terror’ without substantial compromise. The second Bush Administration sought, in specific cases, to limit and control the independence of counsel defending persons suspected of terrorist offences. For example, in the case of Richard Reid, the UK national who tried to ignite explosives contained in his shoes on an American Airlines flight, Reid’s lawyers from the Federal Public Defender’s office refused to sign a document that effectively restricted their independence and ability to conduct their client’s defence.7 Punitive measures followed, including the administration’s decision to cut off access to their client.8 In January 2007, senior US officials condemned US law firms for representing inmates of the Guantanamo internment camp, explicitly stating that it was ‘shocking’ that they were ‘representing detainees down there’ and suggesting that when corporate America was aware of their practices ‘those CEO’s [sic] are going to make those law firms choose between representing terrorists or representing reputable firms’.9 A speedy Pentagon retraction followed these remarks,10 affirming a thread analysed further in this chapter, namely the continued traction that accords to the right to counsel even when other related and fundamental due process rights are being largely stripped of meaningful content. Why is it that democratic states continue to formally affirm the right to counsel? What symbolic and practical effect for persons charged with terrorist offences does such a protection offer when other due process rights have been stripped away? Does the maintenance of the right to counsel bereft of the interconnecting layers of due process rights meaningfully assist in protecting fair trial provision for persons suspected of the gravest offences? This is the territory that this chapter seeks to explore.

7 This document emerged from the Special Administrative Measures (SAMs) directed to defence lawyers. See, A Beck and S Tonova, ‘No Legal Representation without Governmental Interposition (2004) 17 Georgetown Journal of Legal Ethics 597, 612–15 (for a discussion of US v Reid and the court’s ruling on the application of SAMs to defence counsel); Memorandum and Order Concerning Particular SAMs and Revising Earlier Court Orders, US v Reid 214 F Supp 2d 84 (D Mass, 2002) (district court ruling on the issue of the application of the SAMs to Reid’s defence counsel, the court would not require Reid’s defence attorneys to affirm that they received the SAMs and understood that the SAMs applied to their interactions with Reid). 8 US v Reid, ibid, 87 (SAMs were regulations promulgated by Attorney General Ashcroft which allowed the imposition upon Federal Prisoners restrictions, inter alia, on communication. All SAMs are prisoner specific. The government eventually stood back from the measures and the limitations prevented what would have been a likely constitutional clash over the meaning and application of the Sixth Amendment). 9 See comments of Cully Stimson, the Deputy Assistant Secretary of Defense for detainee affairs, who sought to rally American corporations from doing business with law firms that represent inmates of Guantanamo internment camp. See Editorial, ‘Round Up the Usual Lawyers’ New York Times (13 January 2007). 10 Josh White, ‘US Official Apologizes for Guantanamo Remarks’ Washington Post (17 January 2009) A09.

120  Fionnuala Ní Aoláin

I.  International Standards and the Right of Access International human rights and humanitarian law mandate a range of due process protections relevant to the analysis here. These standards have both ‘hard’ and ‘soft’ law dimensions. ‘Hard’ law refers to binding legal requirements, essentially standards created by treaty law between states, or law, which is binding on states from customary international law standing. ‘Soft’ law refers to weaker forms of non-binding legal norms, which include UN General Assembly Resolutions, Principles, Statements of Clarification and Consolidation agreed by some but not all states, and minimum standards agreed by experts. All hold considerable weight for states and often crystallise into binding norms over time. Notably, a number of regional human rights courts have used well-established ‘soft’ law standards for the purposes of interpreting the human rights obligations of states in recent times.11 ‘Hard’ due process norms include the right of the accused to know the charges laid against her,12 the right to promptness to trial and trial process itself,13 the right not to be tried in absentia,14 the right to be heard by a competent, independent and impartial tribunal,15 the right to the presumption of innocence until proven guilty,16 protection against ex post facto laws,17 the right to be defended by counsel of choice, and for the costs of such defence to be provided if the accused has insufficient means,18 the conditional right to release while awaiting trial,19 the right against self-incrimination,20 the right to examine prosecution witnesses and to obtain the evidence of witnesses in one’s defence,21 the right to appeal,22 and the right not to be tried again for the same offence.23 Other relevant standards include the right to bring an action of habeas corpus challenging the legality of one’s detention,24 and the right to confidential communications with one’s legal representative.25 11 ‘[T]he Inter-American Court [is] heavily influenced by soft law and comparative jurisprudence when interpreting the provisions of the Convention]’. M Killander, ‘Interpreting Regional Human Rights Treaties’ (2010) 13 SUR International Journal on Human Rights 145, 153. 12 International Covenant on Civil and Political Rights (ICCPR) [1966] 999 UNTS 171, Art 9. 13 ibid. 14 ibid Art 14(3)(d). 15 ibid Art 14 (1). 16 Universal Declaration of Human Rights [1948] GA res 217A (III), Art 11(1); ICCPR, Art 14(2). 17 Universal Declaration of Human Rights, Art 11 (2). 18 ICCPR, Art 14(3)(d). 19 ibid Art 9. 20 ibid Art 14 (3)(g). 21 ibid Art 14(3)(e). 22 ibid Art 14(5). 23 ibid Art 14(7). 24 Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment [1999] UN Doc E/CN.4/2000/4/Annex 2, Principle 32. See J Hafetz, ‘The Guantanamo Effect and Some Troubling Implications of Limiting Habeas Rights Domestically’ (2007) 10 City New York Law Review 351, 35160. 25 Basic Principles on the Role of Lawyers [1990] UN Doc A/CONF.144/28/Rev.1, para 8; Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, ibid, Principle 18.

Lawyers, Military Commissions and Rule of Law  121 International oversight mechanisms, both courts and tribunals, have generated a considerable amount of jurisprudence assessing and applying the scope of these norms.26 I am not seeking to review that entire terrain here; rather the aim is to give particular attention to the views of these bodies with respect to military courts.27 In 1997, the United Nations Human Rights Committee issued General Comment 13 in which, inter alia, it noted as regards the application of military justice to civilians: The provisions of Article 14 [of the ICCPR] apply to all courts and tribunals within the scope of that Article whether ordinary or specialized. The Committee notes the existence, in many countries, of military and special courts which try civilians. This could present serious problems as far as the equitable, impartial and independent administration of justice is concerned. Quite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with the normal standards of justice. While the Covenant does not prohibit such categories of courts, nevertheless the conditions which it lays down clearly indicate that the trying of civilians by such courts should be very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in Article 14.28

As regards the protections of international humanitarian law, a number of due process protections apply in situations covered by the laws of war. Thus, for ­example, Geneva Convention III concerning Prisoners of War states that prisoners of war can only be sentenced by the same courts following the same procedures as would apply to members of the armed forces of the relevant Detaining Power.29 In addition, Article 106 of Geneva Convention III requires that prisoners of war have the same right to appeal as members of the armed forces of the Detaining Power.30

II.  Military Courts, Lawyers and the Rule of Law Domestic and international legal systems make clear provision for the resort to and exercise of emergency powers.31 States have consistently claimed the right to limit the exercise of individual and group rights when they are faced with internal and/or external crisis (such crisis can be economic, political, or social in nature).

26 Yalgin v Turkey App no 31892/96, judgment (ECHR, 25 September 2001); Case of CantoralBenavides v Peru, judgment (18 August 2000) Series C No 69, Inter-American Court of Human Rights; Case of Durand and Ugarte v Peru (Merits) judgment (16 August 2000) Series C No 68. 27 For a full overview see, F Ní Aoláin, ‘Restriction on the Jurisdiction of Military Courts’ in F Haldemann and T Unger (eds), The United Nations Principles to Combat Impunity: A Commentary (Oxford, Oxford University Press, 2017). 28 Human Rights Committee, ‘General Comment No 13’ [1997] CCPR/c/21/Rev.1.a. 29 Geneva Convention III [1949] 75 UNTS 135, Art 4. 30 ibid. 31 ICCPR, Art 4(1); American Convention, Art 27(1); European Convention, Art 15(1); UN Economic and Social Council, ‘Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights’ [1985] UN Doc E/CN.4/1985/4, Annex.

122

Fionnuala Ní Aoláin

In times of emergency, there is a general diminution of rights protections.32 A number of studies illustrate that violation of non-derogable rights, such as the right to life and the right to be free from torture, experience elevated patterns of abuse and violation during emergency.33 Notably however, outright and complete denial of access to a legal counsel is virtually unknown in democracies. Constraints do exist nonetheless: for example, limits to rights of access in the short to medium term following arrest or detention.34 But democratic states generally concede access, despite strong inclinations and incentives to deny access. The fact of crisis, for a variety of institutional and psychological reasons, often creates the political context in which extreme human rights violations are tolerated in ways that would be difficult to defend in non-extreme situations.35 Substantive liberty rights such as the right to freedom of assembly, association and expression are first in the derogation firing line, since governments view legitimate dissent as contrary to their capacity to respond and contain the crisis in hand. A compelling similarity across jurisdictions is that constraints on due process rights are a firstline response for many states experiencing crisis.36 Constraints on these rights constitute an identifiable pattern in state derogations from rights protections under international human rights treaties.37 This also explains why the derogation case law of all international human rights regional systems is substantially concerned with violations of due process rights. Finally, there is an identifiable chill factor for the full enforcement of rights in times of emergency. Part of that chill stems from the dynamics of the language of crisis itself, which highlights fear and undermines belief in the capacity of ordinary law to cope with the threat identified.38

32 F

Ní Aoláin and O Gross, Law in Times of Crisis (Cambridge, Cambridge University Press, 2006). Ní Aoláin, The Politics of Force: Conflict Management and State Violence in Northern Ireland (Belfast, Blackstaff Press, 2000) (on the protection of the right to life in situations of emergency); see also, Israeli Supreme Court, Legality of the Interrogation Methods Applied by the Israeli General Security Service (6 September 1999). 34 C Walker, ‘ Terrorism Prosecutions and the Right to a Fair Trial’ in B Saul (ed), Research Handbook on International Law and Terrorism (Cheltenham, Edward Elgar, 2014). 35 O Gross, ‘Chaos and Rules’ (2003) 112 Yale Law Journal 1011. 36 Human rights norms which, inter alia, support the right of access to justice, eg, ex post facto law, such as UN Standard Minimum Rules for the Administration of Juvenile Justice, Code of Conduct for Law Enforcement Officials [1985] UN Doc A/40/53; Standard Minimum Rules for the Treatment of Prisoners [1957] UN Doc A/CONF/611; UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment [1988] UN Doc A/43/49 (Principle 13 lists the obligation to inform detainees of their rights; Principle 11 requires that detainees be brought before a judicial or other authority promptly after arrest; Principle 17 requires the state provides access to legal counsel); Convention Against Torture [1987] UN Doc A/39/51, Art 15 (evidence adduced by means of torture is not admissible); Convention on the Rights of the Child [1990] UN Doc A/44/49 (Art 37(d) contains several provisions on the rights of fair trial for children, ‘every child deprived of his or her liberty shall have the right to prompt access to legal and other assistance’). 37 ICCPR, Declarations and Reservations, available at: treaties.un.org/pages/ViewDetails.aspx? src=IND&mtdsg_no=IV-4&chapter=4&lang=en. 38 See K Roach, September 11: Consequences for Canada (Montreal, McGill-Queen’s University Press, 2003). 33 F

Lawyers, Military Commissions and Rule of Law  123 In contextualising state responses to crisis as it manifests in fair trial and legal representation rights, it is important to pay particular attention to the extent to which limitations on due process rights generally form a key aspect of government responses across jurisdictions and legal systems.39 Due process rights are formally derogable under most international and regional human rights treaties. However, as I discuss below, regional courts and the United Nations Human Rights Committee are increasingly moving to close a perceived regulatory weakness in the derogation context by declaring certain aspects of due process protections effectively non-derogable under international human rights law.40

III.  The Impulse to Extraordinary Due Process Explained The resort to exceptional or military courts by democratic states is rarely a standalone legal response. Rather, the establishment of specially empowered courts is part of a broader assault on due process rights generally and procedural rights for defendants in particular.41 Such courts are the focal point between rules that permit multiple latitudes vis-a-vis detention and rules that extend and limit the imprisonment of persons convicted and sentenced in such fora. The decision to abandon ordinary legal process epitomises the apex of a particular matrix of the extraordinary for states. Exceptional and military courts are attractive to states because they theoretically promise greater flexibility in court operation, personnel, procedural rules and outcomes for governments who may feel that ordinary courts will be rigid or are constitutionally limited in their capacity to process certain defendants as they would wish. There is also comparative evidence,42 that because

39 AN Guiora, ‘Due Process and Counterterrorism’ (2012) 26 Emory International Law Review 163; F  Ní Aoláin, ‘France: The Dangers of Permanent Emergency Legislation’ Just Security (27 September 2017), available at: www.justsecurity.org/45263/france-dangers-permanent-emergencylegislation/?print; ‘Turkey: President Bids for One-Man Rule’ Human Rights Watch (18 January 2017), available at: www.hrw.org/news/2017/01/18/turkey-president-bids-one-man-rule. 40 Human Rights Committee, ‘General Comment 29, States of Emergency: Article 4 (2001) UN Doc CCPR/C/21/Rev.1/Add.11; Advisory Opinion OC-8/87 on habeas corpus in emergency situations [1987] Inter-American Court of Human Rights paras 42–43; see generally, OHCHR, Human Rights, Terrorism and Counter-terrorism, available at: www.ohchr.org/Documents/Publications/Factsheet32EN.pdf. 41 Ní Aoláin, ‘The Individual Right of Access to Justice in Times of Crisis’ (n 5). 42 As Solis observes, ‘in many democracies, military courts in the form of courts-martial also have uncontroversial ordinary functions in implementing military codes of justice and regulating and enforcing military discipline’. G Solis, ‘Contemporary Law of War and Military Commissions’ in F Ní Aoláin and O Gross (eds), Guantánamo and Beyond: Exceptional Courts and Military Commissions in Comparative Perspective (New York, Cambridge University Press, 2013). Although this broad argument for the relative obscurity and regularity of military courts is undercut by the publicity and public attention which the military tribunals established to process Guantanamo detainees have garnered. See F de Londras, Detention in the ‘War on Terror’: Can Human Rights Fight Back? (New York, Cambridge University Press, 2011).

124  Fionnuala Ní Aoláin Special Courts try a small class of ‘selected out’ individuals the ‘public’ is less interested in the outcomes and such courts will be subject to less scrutiny. In short, exceptional or military courts promise states the possibility of greater control over the legal process. The context of their creation may vary,43 but a common thread that marks these courts out from their ordinary counterparts is the sense of greater internal latitude and compromises on the rules of operation regarded as fundamental to the legitimacy of these courts. It should be stressed that the legal basis and operation of these courts is critical for governments. These are not lawless courts. They are deeply rooted and legitimised by legal rules, and are frequently defended by reference to their legal pedigrees.44 The rule of law matters greatly, at least at a formal and symbolic level for democratic governments.45 And, critically, the appearance of the rule of law is vitally important to democracies, thus even in the creation of such courts certain proprieties are observed. This is not least because the international human rights treaties to which such states are signatories affirm the centrality of ‘competent, independent and impartial tribunal[s] established by law’.46 Despite the practical reality that such courts may depart significantly from the protections available to individuals in ordinary courts,47 the appearance of legal form and conventions has a heightened importance to democratic states. Defence lawyers play a critical part in this legitimisation process. The right to defend oneself or to be defended by legal assistance of one’s own choosing is deeply entrenched in the normative framework of international human rights law ­treaties.48 In many ways, unless additional to the establishment of exceptional courts, the state places specific constraints on the access to and independence of defence counsel;49 such lawyers occupy a singular space by simultaneously

43 Charter of the International Military Tribunal (8 August, 1945) art 16, 82 UNTS 279; Charter of the International Military Tribunal for the Far East (19 January 1946) art 9; Inter-American Court of Human Rights, Report on Terrorism and Human Rights (2002) executive summary, para 18, OEA/ Ser.L/V/II.116, see eg, Castillo Petruzzi v Peru, judgment (30 May 1999) Series C No 52, Inter-American Court of Human Rights (passim). 44 Military Order of 13 November 2001, 66 Fed Reg 57, 833; US Department of Defense, ‘Secretary Rumsfeld Interview with NBC Meet the Press’ (2 December 2001), available at: archive.defense.gov/ Transcripts/Transcript.aspx?TranscriptID=2585; Steven Lee Myers, ‘Bush Decides to Keep Guantánamo Open’ New York Times (20 October 2008); Executive Order of 30 January 2018, Presidential Executive Order on Protecting American through Lawful Detention of Terrorists: www.whitehouse.gov/presidential-actions/presidential-executive-order-protecting-america-lawful-detention-terrorists, notably section 1(c) ‘The detention operations at the US Naval Station Guantánamo Bay are legal, safe, humane, and conducted consistent with United States and international law’. 45 K Bailey Hutchison, ‘Democracy and the Rule of Law’ (2005) 39 International Lawyer 663. 46 ICCPR, Art 14. 47 JC Gutiérrez and S Cantú, ‘The Restriction of Military Jurisdiction in International Human Rights Protection Systems’ (2010) 7 SUR International Journal on Human Rights 75, 74–97. 48 ICCPR, Art 14(3)(d). ‘[Everyone charged with a criminal offence shall have the right] … to be charged in his presence, and to defend himself in person or through legal assistance of his own choosing’. 49 Note the attempt by the UK government in Northern Ireland in the 1990s to create a Special Panel of defence lawyers who would be on call for persons charged with scheduled (terrorism related)

Lawyers, Military Commissions and Rule of Law  125 providing the means to undermine the courts they operate within and legitimate them by the fact of their representation. Maintaining the convention of independent representation remains a defining aspect of these exceptional/military courts in most contexts. States seem generally willing to carry the costs of the internal and external critique posed by such lawyers including the ongoing possibility that strong representation may assist persons charged to be acquitted. The benefit to the state is ultimately linked to the perceptions of legitimacy that may follow from the services provided by defence counsel. A key element of exceptional courts is that their judicial composition may be markedly different from that provided for in the ordinary courts. In a number of states, exceptional courts have their history in military courts and were initially staffed by military judges.50 This military pedigree may have a number of practical consequences: • Greater judicial deference to the state. • A less diverse bench, including substantially reduced gender representation. • Military judges are more likely to be socially acclimatised to ‘state security’ arguments. • Military culture and the manner in which hierarchy and authority works would likely exclude judges acting very independently or who stand out.51 This is confirmed by the views of the Inter-American Commission in its review of Peruvian military courts citing the problems of the ‘chain of command’ and a lack of hierarchical independence by such courts from the military command system.52 Even where such courts do not have a direct line of descent from military courts, the context of their creation and those willing to be appointed to them may produce judicial outcomes which present a higher degree of deference to the state. In a number of contexts in which military courts have been established, accompanying measures have included a redesign of the status and tenure of the judges sitting in such courts. Often these are military (non-civilian) judges, in a direct chain of command with the military procedures or forces who have captured, detained and interrogated the person before the court. Extreme examples of this phenomenon include the decision by President Fujumori in Peru, under the powers given to him by the Government of Emergency offences. See review of this proposal by the UN Special Rapporteur on the Independence of Judges and Lawyers, Param Cumaraswamy, 5 March 1988 (E/CN.4/1998/39/Add.4) paras 39–56. 50 See, eg, the Republic of Ireland. F Davis, The History and Development of the Special Criminal Court – 1921–2005 (Dublin, Four Courts Press, 2007). 51 J Jackson and S Doran, Judge Without Jury: Diplock Trials in the Adversary System (Oxford, Clarendon Press, 1995) (illustrating, inter alia, that comparative evidence suggests that such judges are more likely to be case hardened). 52 Second Report on the Situation of Human Rights in Peru (2000) Inter-American Commission OEA/ Ser.L/II.106, ch 2, para 106.

126  Fionnuala Ní Aoláin and National Reconstruction in 1992, to dissolve Congress and to remove the majority of judges and prosecutors at all levels, replacing them with provisional judges.53 In parallel, extreme limitations on the right of access to a lawyer were also demonstrated in Peru under Decree Law 25475, where police were authorised to detain a person for up to 15 days incommunicado. In this context, counsel for the accused was prohibited from intervening on behalf of their clients until after the accused made a statement to the Public Ministry.54 Also in Peru, other severe due process limitations were part and parcel of the ‘faceless’ trials, where the accused could only hear the voice of the judges and prosecutors by means of a sound system, which included voice distorting microphones, and where poor audio quality from these systems often made it impossible for the defendant or her counsel to hear was being said.55 By and large, even in jurisdictions in which the ordinary courts might be rightly criticised as unduly deferential to the security fears of the government,56 the assessment may be made that ordinary judges are ‘more’ independent minded, more concerned with liberty rights as counterpoised against security needs, or simply through wider social context and public pressure more likely to be less deferential to the state.57 A distinguishing feature of exceptional courts is that their establishment invariably comes hand in glove with the construction of special rules of evidence tailored to apply to the court’s procedures. Rules of evidence have a particular importance to such courts and are an absolutely foundational aspect of their successful ­functioning.58 One salient question is the extent to which independent defence counsel ‘balance off ’ the intrusions and challenges posed to liberty rights by highly tailored rules of evidence (and other restrictions). It is generally agreed that access to a lawyer is critical to preventing abuse of persons detained, as it allows the opening up of places of detention and contributes to a basic level of transparency. Lawyers are for many detainees the only contact with the outside world. Their absence during extended periods of detention leave detainees completely at the mercy of the detaining authority, a situation which is prone to abuse. Yet, in maintaining the convention of legal access, there is potential conflict between legal representatives and the state as they operate as the sole point of confrontation to and challenge to the state (both inside and outside such courts).

53 Davis, ‘A Cautionary Tale’ (n 6). 54 Decree Law 25475, 5 May 1992 (Peru). 55 Davis, ‘A Cautionary Tale’ (n 6). 56 B Dickson, ‘Human Rights in Northern Ireland 2011’ (2011) 6 Irish Yearbook of International Law 173. 57 SC Greer and A White, Abolishing the Diplock Courts: The Case for Restoring Jury Trial to Scheduled Offences in Northern Ireland (London, Cobden Trust, 1986); WL Twining, ‘Emergency Provisions and Criminal Process: The Diplock Report’ [1973] Criminal Law Review 406. 58 Thanks to Colm Campbell for noting this point.

Lawyers, Military Commissions and Rule of Law  127

IV.  A Case Study of Defence Lawyering in Extremis: Military Defence, Lawyers and the Expeditionary Legal Complex at Guantanamo Bay59 Defence lawyers play a critical role in defending the rule of law in general, and all the more so in situations of conflict, emergency and terrorism. The role of defence lawyers in the Guantanamo Bay military proceedings provides a unique insight into the complexity of that role for the lawyers themselves, their clients and for military or exceptional justice systems.60 Both military and civilian lawyers are provided for each detainee.61 The size and regulation of the defence teams for detainees have changed considerably since the establishment of the Expeditionary Legal Complex, and continues to evolve.62 The military commissions established by the second Bush Administration and refined by the Obama Administration to try detainees held at Guantanamo Bay, Cuba, have generated a surprising amount of dissent from within the military legal community.63 This is due, in part, to disparities between the previous administration’s political objectives and the military legal community‘s expectations for a judicial process it was expected to administer. This tension between uniformed military attorneys – members of the respective service’s Judge Advocate General’s Corps (JAG Corps) – and the administration’s political appointees in the Office of White House Legal Counsel and the Justice Department generates a series of questions regarding the role of military lawyers, especially military defence lawyers, and the dynamics of serving in an a-political capacity as legal counsel within the executive branch of the US government.64 It also provides a useful illustration of 59 Some of the analyses in this section are drawn from the observations of the author who visited the Expeditionary Legal Complex at Guantanamo Bay, Cuba, in August 2017 to observe the trials of the 9/11 accused. 60 M Rayner, ‘The Practitioner’s View: Clients at Guantanamo’ (2007) 10 City of New York Law Review 405, 405–09. 61 A Military Commissions Fact Sheet published by the Department of Defense (8 February 2007) lists ‘representation by an independent military defense counsel free of charge with the option to retain a civilian defense counsel’. Section 949c(b) of the Act outlines the duties of the defense counsel. It states that, ‘The accused may be represented by military counsel detailed under section 948k [of the Act]’ but permits the accused to ‘be represented by civilian counsel if retained by the accused, provided that such civilian counsel’ meets certain citizenship, professional, and security requirements. ‘If the accused is represented by civilian counsel, military counsel shall act as associate counsel. The accused is not entitled to be represented by more than one military counsel. However, the person authorized under regulations prescribed under section 948k of this title to detail counsel, in such person’s sole discretion, may detail additional military counsel to represent the accused’. 62 D Luban, ‘Lawfare and Legal Ethics in Guantanamo’ (2008) 60 Stanford Law. Review 1981. 63 R Jeffrey Smith, ‘Top Military Lawyers Oppose Plan for Special Courts’ Washington Post (3 August 2006); see generally, Daphne Eviatar, ‘Time to Retire the Military Commissions’ Just Security (23 September 2013). 64 As an example of this dynamic, see Lieutenant General Jack Rives (Major General Rives at the time of publication), ‘E Warren, Chief Justice of the United States Supreme Court’ (2007)

128  Fionnuala Ní Aoláin the extent to which the right to counsel (albeit severely compromised) can operate to rally support for the rule of law, bring attention to egregious violations of legal norms, and illustrate the capacity for law itself to be rehabilitated even when it is under exacting political pressure. Paradoxically (at least in the view of some), a number of the most outspoken critics of Bush Administration policies on detainee treatment, interrogation and trials were lawyers within the military legal establishment.65 While many civilian legal advisers within the executive branch argued that the detainees held at Guantanamo were not entitled to basic legal rights (such as the right to challenge their legal status and ongoing confinement), top-ranking military attorneys within the army, navy, air force, and marine corps argued that detainees were entitled to the legal rights afforded to prisoners of war under articles of the 1949 Geneva Conventions. Judge Advocates General were repeatedly outspoken advocates for the legal and fundamental human rights of Guantanamo Bay detainees.66 This commitment continues, as evidenced by the decision of the Chief Defence Counsel Marine Brigadier General John Baker to release three civilian defence attorneys from a capital case (USS Cole) when the lawyers made clear they could not continue given their concern about breaches of attorney–client privilege. While the precise reason for their resignation is subject to national security restrictions, the agreed assumption by commentators is that the lawyers had a factual basis to believe that their attorney–client communications were being monitored by the intelligence community. By accepting their resignations, and refusing to undo his release decision, the Marine Brigadier General was sentenced to 21 days’ conferment for disobeying orders by the Presiding Military Judge.67 The Brigadier General’s willingness to defy a court order in pursuit of the broader concern for attorney–client privilege, and the protection of a meaningful capacity to function within a military commission context underscores the pivotal role that defence lawyering plays in the capacity of the Commission to operate, as well as to provide (or subtract) legitimacy from the proceedings. This zealous advocacy on behalf of their detainee clients appears to have come at a personal and professional cost for some Judge Advocates General.68 There is

60 Air Force Law Review 1, 1–4 (‘Members of the JAG Corps are known for doing the right things for the right reasons. In this critical area, we must continue to formulate and advocate approaches that preserve the Constitutional balance, assuring a strong and effective national security establishment while protecting the individual freedoms that have made this Nation great’.). 65 Neil A Lewis, ‘Military’s Opposition to Harsh Interrogation Is Outlined’ New York Times (28 July 2005). 66 ibid; Smith (n 63) A11. See also Major General Jack Rives, ‘TJAGC Leaders Testify Before Congress on Military Commissions and Detainee Rights’ (2006) 33 The Reporter 2. 67 See Carol Rosenberg, ‘Gitmo judge sends Marine general lawyer to 21 days confinement for disobeying orders’ Miami Herald (1 November 1 2017). 68 See interviews with military lawyers conducted by the author at Guantanamo Bay military commission complex in August 2017 (on file). These costs have been mounting up since the establishment of the military commissions. See, eg, Nina Totenberg, ‘Detainees’ Military Lawyer Forced Out of Service’ NPR (12 October 2006).

Lawyers, Military Commissions and Rule of Law  129 evidence suggesting that some degree of top-down political pressure from within the administration influenced, or sought to influence, supervisory decisions and promotion eligibility for some of the leading military defence attorneys representing Guantanamo detainees.69 In response, Congress and leadership within the Military’s Judge Advocate Generals Corps have taken some steps to insulate the military defence community and military judiciary from political influence and retribution. Nonetheless, given the constant confrontations posed to the legitimacy of the military commissions by the professionalism and consistency of defence counsel, there is a pervasive sense that these lawyers maintain a precarious front line on the rule of law in a zone that has been declared a legal black hole by many observers.70 Military lawyers detailed to the Office of Military Commissions confront conflicting demands on their loyalty.71 Judge Advocates General’ authority and responsibilities are derived from elements from all three branches of the federal government. They serve as commissioned officers, appointed by the President under Article II, Section 2 authority as Commander in Chief. Yet, in their capacity as military lawyers, the Judge Advocates General are responsible for administering a system of military justice established under Congress’s Article I, Section 8 authority, and embodied in the Uniform Code of Military Justice. And, to complicate matters even further, a Judge Advocate General’s responsibility is to support and defend the Constitution of the United States, which implies a commitment to upholding the rule of law. This, and the military lawyer’s professional obligation to ethically practise law in compliance with the rules of professional responsibility, suggests some affinity with, and responsibility to, the judicial branch of the federal government under Article 3 of the Constitution. The challenge of balancing these competing demands has been most vividly illustrated by issues arising out of the policies and procedures for holding and prosecuting detainees held at the Guantanamo Bay facility in Cuba. Detainees’ lawyers have challenged the legal system at Guantanamo repeatedly and consistently. Challenges range from the legal basis to advance trials,72 the legality of the charges laid against detainees,73 the conditions of c­ onfinement,74 69 Late in 2007 it was revealed that members of the Bush Administration were pushing to take control of the promotions of military lawyers – a move which escalated conflict over the independence of uniformed attorneys who repeatedly raised objections to White House policies toward prisoners in the war on terrorism. Charlie Savage, ‘Control Sought on Military Lawyers’ Boston Globe (15 December 2007). See also Charlie Savage, ‘Bush Seeks to Limit Military Lawyers’ Independence’ New York Times (15 November 2007). 70 J Steyn, ‘Guantanamo Bay: The Legal Black Hole’ (2004) 53 International & Comparative Law Quarterly 1. 71 Michael Melia, ‘Ex-Gitmo Prosecutor Charges Pentagon Interference’ TheStar.com (29 April 2008), available at: www.thestar.com/news/world/2008/04/29/exgitmo_prosecutor_charges_pentagon_ interference.html. 72 Boumediene et al v Bush 553 US 723 (2008); Hamdan v Rumsfeld 548 US 557 (2006); Rasul v Bush 542 US 466 (2004). 73 Hamdan II 696 F 3d 1238 (2012). 74 Aamer v Obama 742 F 3d 1023 (2014).

130  Fionnuala Ní Aoláin conflicts of interest for the Presiding Military Judge,75 the classification of evidence,76 the monitoring of trials by the CIA and other US intelligence agencies, the destruction of exculpatory evidence,77 and more. Most relevant for this analysis has been consistent litigation concerning the integrity of attorney–client relationship, the maintenance of attorney–client privilege, the monitoring of attorney–client communication, and the infiltration of defence attorney litigation teams by the intelligence services.78 Defence lawyers (both military and civilian) view the integrity and full security of the attorney–client relationship as pivotal to the integrity of the trial process. Counsel have affirmed that ‘attorney–client confidentiality is the bedrock of our legal system. It is the most fundamental component of the right to counsel and it is recognized the world over as necessary for a fair trial’.79 Intrusions on this relationship, evidenced by monitoring of detainee–attorney communication,80 have resulted in Guantanamo defence lawyers refusing to use certain designated rooms within the prison complex for communication with their clients. It has resulted in defence lawyers using white writing boards and/or pen and paper in meetings rooms to communicate with clients as they do not believe their verbal communications to be free from surveillance by intelligence community’s listening devices.81 These lawyers, both military and civilian, view the sanctity of the attorney–client relationship as a small antidote to the demonstrated torture and ill-treatment their clients received in US custody.82 For female defence lawyers in the 9/11 trial this has led to a deliberate decision to wear hijab, veil and other forms of modest dress in the courtroom when their clients are present as a form of deference to their religious and cultural sensibilities.83 For the detainees, their defence lawyers are their sole and consistent link with the outside world. In this deeply dystopian legal universe the obligations of defence counsel are deeply felt and distinctly practised.

75 Warren Richey, ‘Guantánamo Judge Refuses to Step Aside’ Christian Science Monitor (17 July 2012), available at: www.csmonitor.com/USA/2012/0717/Guantanamo-judge-refuses-to-step-aside. 76 Boumediene et al v Bush (n 72) 819; JK Elsea and MJ Garcia, ‘Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court’ (Congressional Research Service, 3 February 2010) 28–30, available at: fas.org/sgp/crs/natsec/RL33180.pdf. 77 Jane Sutton, ‘Buried Evidence Revealed in Guantanamo Trial’ (Reuters, 8 November 2007). 78 Marine Brigadier General JG Baker, ‘Memorandum for Chief Prosecutor for Military Commissions Commander, Joint Task Force Guantanamo: Improper Monitoring of Attorney-Client Meetings’ (Department of Defense, 14 June 2017), available at: www.documentcloud.org/documents/3868604Marine-general-s-letter-on-Attorney-Client.html; David Luban, ‘Indefensible: Why Guantanamo Defense Lawyers Can’t Ethically Participate any Longer’ Just Security (15 October 2017). 79 Rick Kammen, ‘Brig Gen John Baker, Chief Defense Counsel for the Guantanamo Military Commission, Disbands the Defense Team in the USS COLE Case’ Just Security (13 October 2017). 80 Intrusions into defence teams have included, in the past, microphones hidden in smoke detectors. 81 Interviews with Guantanamo defence counsel, Guantanamo Bay Cuba, August 2017; Emily Freud, ‘Terrible Guantanamo Bay’ The Irish Times (15 November 2016). 82 US Senate, Executive Summary of the Senate Select Committee on Intelligence’s Study of the CIA’s Rendition, Detention, and Interrogation Program (SSCI Report, 3 December 2014). 83 Observed and discussed with legal representatives of 9/11 detainees at Guantanamo Bay, Cuba.

Lawyers, Military Commissions and Rule of Law  131 Yet, in parallel, the presence of defence counsel is essential to the state and a sine quo non to maintaining the legitimacy of military commission trials. Despite evident ambivalence for the work of these lawyers,84 the democratic state holding military trials on a military base in the Caribbean needs them. The lawyers are deeply aware that their loyalty to their clients places them in the paradoxical position of upholding trial processes that they view as profoundly and structurally unfair. These issues were much in evidence following the resignation of all civilian counsel representing one defendant (Mr Nashiri) in the USS Cole Guantanamo trial proceedings.85 The only lawyer currently remaining on the team is an assigned military legal representative.86 He consistently declares his inability to represent his client adequately given his lack of death penalty litigation experience. The continuance of the trial in the absence of learned counsel and the stated limitations of the one remaining military lawyer opens a Pandora’s box on the issues of fair trial, and the capacity of this proceeding to withstand subsequent appeal if the defendant is judged guilty. As set out earlier, this case was further complicated by the presiding military judge disciplining the most senior military defence counsel for accepting the resignation of civilian counsel, as being ultra vires his powers.87 The disciplinary proceedings underscore the fundamental point here, that the absence of defending counsel is an existential problem for the legitimacy of the tribunals, as federal rules demand the availability of expert civilian death penalty counsel in order for trial to proceed.88 It is also obvious that the presence and advocacy work of dedicated defence lawyers function to delegitimise and expose the limitations of the military commissions from within. Their continued emphasis on torture in every stage

84 Luban, ‘Indefensible: Why Guantanamo Defense Lawyers Can’t Ethically Participate any Longer’ (n 78). 85 See Kammen (n 79). In a public statement, counsel indicated that ‘the Rules of Professional Responsibility obligated us to cease our participation in this case’ and further concluded ‘The military commission system is a failed experiment. It does not provide fair or transparent justice, indeed it provides secret, hidden, and hopelessly unfair procedures designed to fool the public into believing that what it is seeing is an actual trial. It is not. It is an un-American façade of a court system that cannot provide fairness. And it designed to conceal the truth about the COLE bombing and the torture the United States inflicted on Nashiri. No justice will ever come out of Guantanamo’). It has now been revealed that a microphone was discovered in a room assigned to counsel for interviews with detainees: www.miamiherald.com/news/nation-world/world/americas/guantanamo/article203916094.html. 86 Some interesting questions arise as to whether the remaining military lawyer can resign or continue to represent the detainee client in the circumstances. 87 Kate Brannen, ‘What’s Going on at Gitmo?’ Just Security (1 November 2017). ‘Marine Brig Gen John Baker, the chief defense counsel for the Military Commissions, was found guilty of contempt and sentenced to 21 days confinement and to pay a $1,000 fine’. See Marine Brigadier General Baker, ‘Memorandum for Chief Prosecutor for Military Commissions Commander, Joint Task Force Guantanamo’ (Department of Defense, 30 November 2016), available at: www.documentcloud.org/ documents/3868604-Marine-general-s-letter-on-Attorney-Client.html (communication to the Department of Defense with reference to the decision of the military judge in United States v Sheik Shaikh Mohammed et al ordering that all intrusive monitoring of attorney–client meetings should cease). 88 Counsel and Wtinesses in Capital Cases, 18 US Code § 3005.

132  Fionnuala Ní Aoláin of pre-trial proceedings, means that the brutal experiences of the detainees are consistently and unwaveringly exposed in the courtroom.89 The trenchant emphasis on every minute aspect of undulating due process violations in the conduct of the trials are laid bare and held on record. The willingness of defence lawyers to meet with 9/11 families and the press at every Guantanamo proceeding exposes the micro-operation of the military commissions in predictably unflattering ways for the prosecution and the US government. The parallel litigation in US federal courts by motivated defence lawyers continues to chip away (albeit slowly) at the chimera of due process that pervades the state’s positioning on the legitimacy of detention and trial at Guantanamo Bay (see Appendix 1).90 The innovative use of international legal proceedings by Guantanamo defence lawyers has brought continued attention to the medical needs of detainees occasioned by their torture, the lack of rehabilitation for that torture, and the failure to put in place n ­ ecessary medical interventions (and expertise) to mitigate the suffering (mental and physical) detainees continue to experience.91 In this context, the United Nations Special Rapporteur on Torture has declared that ongoing conditions of detention, and the lack of adequate medical and psycho-social treatment constitute an ongoing violation of the torture norm.92 This finding raises obvious and troubling questions about the legal responsibility for ongoing torture at Guantanamo and the potential for those who continue to engage in oversight and enforcement of the Guantanamo system to be individually liable for torture, inhuman and degrading treatment. It is not clear that ongoing torture would be covered by the de facto amnesty given to persons engaged in torture by Attorney-General Holder in 2012, which specifically addressed interrogations carried out by the CIA and prisoner deaths during the conflict in Afghanistan.93

89 Transcripts (as subject to national security review) uploaded to the Military Commissions website found at: www.mc.mil. 90 Vanessa Sauter, ‘Document: Brig Gen John Baker Habeas Petition’ (Lawfare, 2 November 2017), available at: lawfareblog.com/document-brig-gen-john-baker-habeas-petition (‘Spath violated General Baker’s due process rights by depriving him of his liberty without giving him any opportunity to be heard’); Harry Graver, ‘Military Commissions Loom Large at Supreme Court’ (Lawfare, 3 October 2017), available at: www.lawfareblog.com/military-commissions-loom-large-supreme-court; ‘Doe v Mattis – ACLU Foundation’s Petition for Writ of Habeas Corpus: Challenge to Military Detention of American Suspected of Fighting for ISIS’ (ACLU, 5 October 2017), available at: www.aclu.org/legaldocument/doe-v-mattis-aclu-foundations-petition-writ-habeas-corpus?redirect=legal-document/ doe-v-mattis-petition-writ-habeas-corpus. 91 Inter-American Commission on Human Rights, Towards the Closure of Guantanamo (2015) OAS/ Ser.L/V/II; Human Rights Council, Report of the Working Group on Arbitrary Detention on its visit to the United States of America (2017) A/HRC/36/37/Add.2; Office of the High Commissioner on Human Rights, ‘US Must Stop Policy of Impunity for the Crime of Torture’ – UN Rights Expert (2017), available at: www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22532&LangID=. 92 Tom Miles, ‘UN expert says torture persists at Guantanamo Bay; US denies’ (Reuters, 13 December 2017). 93 Scott Shane, ‘No Charges Filed on Harsh Tactics Used by the CIA’ New York Times (30 August 2012).

Lawyers, Military Commissions and Rule of Law  133

Conclusion The persistence of due process protections, even those that are vastly inferior to the full panoply of rights guaranteed by regularly constituted courts, presents somewhat of a puzzle in the practice of exceptional courts and military commissions. The fact that democratic states feel obliged to uphold these norms, indicates how ‘sticky’ they are,94 and reveal the extent to which despite the challenges they pose for states, maintaining some version of their continued applicability has important legitimacy affirming values. These protections provide a ‘dampening’ effect on the full force of exceptionality. More subversively, they may also function as the Trojan horse that unmasks the exception. As these due process protections hold the potential to challenge and undo the exceptional system within which they operate, they are Janus faced for the states. Defence lawyers are at the apex of this assault on exceptionality, all the more so when they are folded into the exceptional system and function to challenge it from the inside out. Confronting has high costs for the lawyers themselves not least because of the constant challenge posed to their broader ethical obligations as lawyers, and the tightrope walked in terms of obligations to the client, combined with extraordinary limitations placed on the capacity to represent that client effectively. There are also very real human costs for lawyers whose legal practice requires travel to a slice of land in the Caribbean, where the living conditions are poor because an expeditionary legal complex was never intended to be a long-term proposition, intense security is the norm and inadequate working arrangements and limitations on client access mean that the business of doing one’s trade as a lawyer is highly constrained and ethically compromised. The Guantanamo case study reveals the intricacy of this engagement and the costs of its use, for the lawyers, the legal system and those represented.

94 DM Kahan, ‘Gentle Nudges v Hard Shoves: Solving the Sticky Norms Problem’ (2000) 67 University of Chicago Law Review 607.

134  Fionnuala Ní Aoláin

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9 Excluding Terrorists jessie blackbourn Introduction We are clear in principle that what we need is a targeted, discretionary power to allow us to exclude British nationals from the UK (David Cameron, 1 September 2014).1

The rhetoric of exclusion is a powerful political tool, particularly in times of ­terrorist crisis. It was invoked by the then Prime Minister David Cameron in late 2014 to justify proposed measures which sought to ban ‘foreign terrorist fighters’ from returning to the United Kingdom (UK).2 Such rhetoric enables governments to show the public that they are strong on terrorism. However, the reality of exclusion reveals a more complex picture, one that is bounded by legal, as well as political, concerns. Notwithstanding the above stance, in 2014 the government was ultimately unable to find a mechanism to permanently exclude citizens that would be consistent with the UK’s international legal obligations. Despite the legal and political difficulties, exclusion remains on the agenda today. But exclusion is not just a contemporary counter-terrorism tool; numerous UK governments have, in the past, found a variety of ways to exclude citizens suspected of terrorism. For example, 190 expulsion orders were made against British subjects under the Prevention of Violence (Temporary Provisions) Act 19393 during the 15 years that it was on the statute books.4 That Act was the precursor to modern

1 HC Deb 1 September 2014, vol 585, col 26 (David Cameron). 2 The term ‘foreign terrorist fighters’ in this chapter refers to UK citizens who have travelled abroad to train with terrorist organisations or to participate in foreign conflicts, such as those waged in Syria and Iraq since 2014. For broader discussion of the term, see, J Blackbourn, D Kayis and N McGarrity, Anti-Terrorism Law and Foreign Terrorist Fighters (Abingdon, Routledge, 2018) 3–5. 3 Unlike David Cameron’s proposals, the 1939 Act was legally viable as an expulsion order granted thereunder could not exclude a terrorist suspect from the whole of the UK, only from Britain. The effect was that those subject to an expulsion order were excluded either to Northern Ireland, or to Éire; they were not rendered stateless. C Walker, The Prevention of Terrorism in British Law, 2nd edn (Manchester, Manchester University Press, 1992) 81. 4 C Walker, ‘Keeping Control of Terrorists Without Losing Control of Constitutionalism’ (2007) 59 Stanford Law Review 1395, 1404. The 1939 Act was influenced by powers available under the Aliens Restrictions Act 1914: HC Deb 24 July 1939, vol 350, col 1054 (Samuel Hoare).

136  Jessie Blackbourn day ­anti-terrorism powers of exclusion, which can be traced to the Prevention of Terrorism (­Temporary P ­ rovisions) Act 1974 (PTA 1974). In line with the aims of this festschrift, this chapter takes that 1974 Act as its starting point – not least given Clive Walker’s extensive critique of exclusion orders. The chapter then traces the development of, and evaluates, five contemporary powers of exclusion, drawing on critiques provided by Walker. The chapter concludes by considering whether ‘exclusion’ has a place in future UK counterterrorism strategies.

I.  Exclusion Orders Exclusion orders were described as ‘Draconian’ and ‘unprecedented in peacetime’ by the Home Secretary who introduced them in 1974.5 They were part of a package of measures enacted in response to an IRA campaign of violence in Britain, which peaked with the Birmingham pub bombings in November 1974.6 As originally introduced, the PTA 1974 empowered the Secretary of State to make an order prohibiting a person ‘from being in, or entering, Great Britain’ if satisfied that the person was either ‘concerned in the commission, preparation or instigation of acts of terrorism’7 or was attempting to enter Great Britain with a view to being so concerned.8 If the person was not a citizen of the UK or the Colonies, then the order prohibited them from being in, or entering into, the whole of the United Kingdom.9 A citizen could not be excluded from Great Britain if they had been ordinarily resident for more than 20 years. Furthermore, any person against whom an exclusion order had been made could ‘make representations in writing to the Secretary of State setting out the grounds of his objection’ to the order, who would then ‘reconsider’ the exclusion order.10 Crucial safeguards, however, were lacking. A person who wished to make representations against an exclusion order had to do so within 48 hours of the order being made;11 there was no right to appeal the

5 HC Deb 25 November 1974, vol 882, col 35 (Roy Jenkins). The measures were, in fact, far from unprecedented. They were modelled on similar powers contained within the Prevention of Violence (Temporary Provisions) Act 1939, which had been enacted to counter an IRA bombing campaign that commenced prior to the start of the Second World War. The Prevention of Violence (Temporary Provisions) Act 1939 included three executive powers: exclusion, prohibition and registration. 6 Prevention of Terrorism (Temporary Provisions) Act 1974 (PTA 1974) ss 3–6. 7 PTA 1974, s 3(3)(a). Terrorism is defined in s 9(1) of the Act as ‘the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear’. Exclusion orders were limited for use against persons concerned in terrorism ‘designed to influence public opinion or Government policy with respect to affairs in Northern Ireland’: PTA 1974, s 3(1). 8 PTA 1974, s 3(3)(b). 9 PTA 1974, s 6. The effect of this was that the legislation applied to persons with citizenship of the Republic of Ireland. 10 PTA 1974, s 4(3). 11 PTA 1974, s 4(3).

Excluding Terrorists  137 Secretary of State’s decision to make an order to a court of law;12 and exclusion orders had no time limit: a person excluded from Great Britain was potentially excluded indefinitely. The measures were not uncontroversial, even within Parliament. While the legislation also included new executive powers to proscribe terrorist­ organisations13 and police powers to arrest and detain terrorist suspects for up to seven days,14 debate centred on the exclusion order provisions.15 Northern Irish MPs in particular expressed a number of concerns, including that the Act differentiated Northern Ireland from the rest of the UK, effectively rendering people in Northern Ireland ‘second class citizens’,16 and that it would serve to export terrorism to Northern Ireland.17 As William Craig put it: ‘we shall be the dumping ground for security risks from Great Britain’.18 In 1976 the Act was amended, in part as a concession to Unionist MPs’ demands for reciprocity.19 In addition to exclusion from Great Britain20 (and from the UK for non-citizens),21 the Prevention of Terrorism (Temporary Provisions) Act 1976 also enabled the Secretary of State to exclude persons from Northern Ireland.22 The time allotted for a person to make representations to the Secretary of State to object to an order was doubled to 96 hours,23 but no further additional safeguards were incorporated until the next version of the Act was enacted in 1984. These included decreasing the ‘qualifying period of ordinary residence’ from 20 years to three years, increasing the time limit allowed to make representations to the Secretary of State to object to an order from 96 hours to seven days, and establishing an expiration period of three years on exclusion orders, ending the indefiniteness of the previous regime.24 Writing in 1984, Walker noted that the reforms to exclusion orders contained within the Act of 1984 had removed ‘some of the more objectionable aspects of exclusion’ but that ‘they do nothing to alter the basic nature of the system, which remains inherently unfair, in breach of natural justice and susceptible

12 PTA 1974, s 4. 13 PTA 1974, s 1. 14 A person arrested under the Act could be detained by the police for a period of 48 hours; however, the Secretary of State could extend that detention by a period not exceeding a further five days (PTA 1974, s 7(2)). 15 HC Deb 28 November 1974, vol 882, cols 634–752. 16 See, eg, HC Deb 28 November 1974, vol 882, cols 664–68 (Gerry Fitt); 668–72 (Enoch Powell). 17 See, eg, HC Deb 28 November 1974, vol 882, cols 664–68 (Gerry Fitt); 712–18 (William Craig); 748 (James Kilfedder). 18 HC Deb 28 November 1974, vol 882, col 715 (William Craig). 19 See, eg, HC Deb 28 November 1974, vol 882, cols 671 (Enoch Powell); 716 (William Craig). See also, Walker, The Prevention of Terrorism in British Law (n 3) 71. 20 Prevention of Terrorism (Temporary Provisions) Act 1976 (PTA 1976) s 4. 21 PTA 1976, s 6. 22 PTA 1976, s 5. 23 PTA 1976, s 7(3). 24 See Prevention of Terrorism (Temporary Provisions) Act 1984, ss 4(4)(a) (exclusion from Great Britain), 5(4)(a) (exclusion from Northern Ireland), 7(4), 18(2), respectively.

138  Jessie Blackbourn to political influences’.25 Walker has levelled five specific critiques against the exclusion order regime. First, that exclusion orders failed their prime objective of preventing terrorism and potentially hindered that cause.26 This is because, second, exclusion orders merely displaced terrorism to Northern Ireland (giving the impression that Northern Ireland was not as important politically as Great Britain)27 and so only served to increase the opportunities for persons excluded to Northern Ireland to engage in terrorism.28 Third, that the powers were used when it was merely advantageous to do so, rather than when it was unavoidable as an alternative to prosecution.29 Fourth, that the use of the powers exceeded their original remit, and were being used against those who espoused ‘extreme’ views, such as members of Sinn Féin, not just those suspected of terrorism.30 Finally, that exclusion orders were difficult to challenge on account of the fact that they were often based on sensitive intelligence that was not disclosed to the person subject to exclusion.31 No significant changes were made to the exclusion order regime when the next and final version of the Act was enacted in 1989.32 That Act contained a sunset clause, meaning that the measures within it would expire after one year.33 However, the Act also enabled the Secretary of State to renew by order any or all provisions at the end of the first year, and subsequent, one-year periods. Any order could also specify provisions that would cease to be in force.34 The exclusion order provisions were renewed annually until March 1998,35 when the Secretary of State’s power to make an exclusion order finally lapsed after 24 years on the statute books.36 No similar provision was included in the Terrorism Act 2000, when it replaced the UK’s twentieth-century emergency and temporary legislation with a permanent UK-wide anti-terrorism law.37 However, exclusionary measures are not simply a relic of the past. Various types of exclusionary powers have been experimented 25 C Walker, ‘Prevention of Terrorism (Temporary Provisions) Act 1984’ (1984) 47 Modern Law Review 704, 710. 26 Walker, The Prevention of Terrorism in British Law (n 3) 33; C Walker, ‘Constitutional Governance and Special Powers Against Terrorism: Lessons from the United Kingdom’s Prevention of Terrorism Acts’ (1997) 35 Columbia Journal of Transnational Law 1, 17. 27 Walker, The Prevention of Terrorism in British Law (n 3) 88; Walker, ‘Constitutional Governance and Special Powers Against Terrorism’ (n 26) 18, 39. 28 C Walker, ‘The Jellicoe Report on the Prevention of Terrorism (Temporary Provisions) Act 1976’ (1983) 46 Modern Law Review 484, 490; Walker, The Prevention of Terrorism in British Law (n 3) 33; Walker, ‘Constitutional Governance and Special Powers Against Terrorism’ (n 26) 17. 29 Walker, The Prevention of Terrorism in British Law (n 3) 72. 30 ibid 86. 31 Walker, ‘Constitutional Governance and Special Powers Against Terrorism’ (n 26) 25. 32 Prevention of Terrorism (Temporary Provisions) Act 1989 pt II and sch 2. 33 ibid s 27(5). Only the measures in pts I–V were subject to a sunset clause, this included the exclusion order powers in pt II. 34 ibid ss 27(5) and 27(6). 35 Jack Straw, ‘I’m simply protecting democracy’ The Guardian (14 December 1999). 36 The Prevention of Terrorism (Temporary Provisions) Act 1989 (Partial Continuance) Order 1998, SI 1998 No 768, 3. 37 C Walker, ‘Briefing on the Terrorism Act 2000’ (2000) 12(2) Terrorism and Political Violence 1.

Excluding Terrorists  139 with in the twenty-first century,38 including, most obviously, Temporary Exclusion Orders enacted in the Counter-Terrorism and Security Act 2015 to prevent the return of foreign terrorist fighters from the conflicts in Syria and Iraq,39 as well as the power to relocate terrorist suspects within the UK as part of the control order40 and Terrorism Prevention and Investigation Measures (TPIM) regimes,41 and the contemporary practice of ‘Deportation with Assurances’.42 Exclusionary practices can also, perhaps counterintuitively, be seen in the power to indefinitely detain non-national terrorist suspects in lieu of deportation in the Anti-terrorism, Crime and Security Act 2001 (ATCSA 2001).43 This chapter briefly outlines the key features of these more recent occurrences of exclusion and then evaluates them against Walker’s five critiques of exclusion orders.

II.  Contemporary Exclusion Powers The ATCSA 2001 was enacted in response to the September 11 terrorist attacks on the United States (US). The Act introduced a range of measures thought necessary to fill the perceived capabilities gaps that the attacks revealed in the Terrorism Act 2000. Included within the new Act was a power for the Secretary of State to ­indefinitely detain non-national suspected terrorists who could not be deported, either for a practical reason (for example, that there was no third-party country willing to take them) or because of a point of law (namely, because it would be incompatible with the prohibition of torture in the European Convention on Human Rights (ECHR)).44 At first sight, a power to detain might not be considered analogous to exclusion. However, the powers were in fact immigration provisions. The ATCSA 2001 empowered the Secretary of State to issue a certificate to a suspected terrorist where there was reasonable belief ‘that the person’s presence in the United ­Kingdom [was] a risk to national security’.45 The effect of the certificate was to provide for the deportation or removal of the person from the UK, or to prevent their entry into the UK.46 The power was thus intended (albeit obliquely) 38 In addition to the measures considered in this chapter, two further powers could be considered to be exclusionary: the Home Secretary’s power under the Royal Prerogative to strip citizenship from both dual and naturalised citizens (even where that would potentially render naturalised citizens stateless); and the Home Secretary’s power under the Royal Prerogative to exclude persons from the UK. These powers have not been included in this chapter because they apply in a range of situations beyond the terrorism context. See, Blackbourn, Kayis and McGarrity (n 2) 77, 81–86. 39 Counter-Terrorism and Security Act 2015, pt 1, c 2. 40 Prevention of Terrorism Act 2005 (PTA 2005) s 1(4)(e)–(h). 41 Terrorism Prevention and Investigation Measures Act 2011 (TPIMs Act 2011), sch 1, pt 1, 1. 42 ‘Deportation with Assurances’ is a non-legislative government policy that involves bilateral agreements with other states that ‘aims to facilitate the deportation to certain receiving states of foreign nationals suspected of terrorism’. D Anderson, Deportation with Assurances (Cm 9462, 2017) 5. 43 Anti-terrorism, Crime and Security Act 2001 (ATCSA 2001) pt 4. 44 European Convention on Human Rights (ECHR) Art 3. See Chahal v UK (1996) 23 EHRR 413. 45 ATCSA 2001, s 21. 46 ATCSA 2001, s 22.

140  Jessie Blackbourn to facilitate the ­exclusion of the suspected terrorist from the territory of the UK. In practice, because of the protections afforded under the ECHR to non-citizens facing d ­ eportation, the measures were, in fact, more explicitly a power to detain.47 The indefinite detention provisions of the ATCSA 2001 were repealed and replaced with a new system of control orders in the Prevention of Terrorism Act 2005 (PTA 2005),48 following a House of Lords ruling that the measures were incompatible with the Human Rights Act 1998.49 A control order was ‘an order against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism’.50 The PTA 2005 created two types of control order: derogating, which imposed obligations on a controlee that were incompatible with the right to liberty under the ECHR and thus required a derogation; and non-derogating, which imposed obligations that did not.51 The Secretary of State could impose non-derogating control orders, but had to apply to the court before a derogating order could be imposed.52 The latter power was never used. The Act contained a list of potential obligations that could be included within a control order,53 the most controversial of which placed restrictions on association and communication,54 place of residence,55 and on movement to, from, or within the UK.56 Taken with the additional caveat that the power to restrict movement included the power to require a controlee to ‘remain at or within a particular place or area (whether for a particular period or at particular times or generally)’,57 the Secretary of State could ‘impose restrictions such as curfews or exclusion zones’,58 facilitating the forced relocation of controlees. This latter aspect of control orders has been critiqued as a form of ‘internal exile’ for its practice of excluding terrorist suspects subject to a control order from particular areas, notably London.59 In 2011, following a review of counter-terrorism and security powers,60 initiated by the recently elected Coalition government with a view to ­‘security ­liberalisation’,61 the control order regime was replaced with TPIMs.62 The Terrorism 47 ATCSA 2001, s 23. 48 PTA 2005. 49 A v Secretary of State for the Home Department [2004] UKHL 56. 50 PTA 2005, s 1(1). 51 PTA 2005, s 1. 52 PTA 2005, s 1(2). 53 PTA 2005, s 1(4). 54 PTA 2005, s 1(4)(d). 55 PTA 2005, s 1(4)(e). 56 PTA 2005, s 1(4)(g). 57 PTA 2005, s 1(5). 58 Walker, ‘Keeping Control of Terrorists’ (n 4) 1413. 59 Other aspects of the control order regime were also controversial, but do not relate to exclusion. Most notably this includes the use of secret material in, and the expulsion of the controlee and their lawyer from, control order proceedings, as well as the potentially indeterminate nature of the regime: control orders were restricted in duration to 12 months; however they could be renewed indefinitely. 60 HM Government, Review of Counter-Terrorism and Security Powers (Cm 8004, 2011). 61 HM Government, The Coalition: Our Programme for Government (Cabinet Office, 20 May 2010) 24. 62 Terrorism Prevention and Investigation Measures Act 2011, s 1.

Excluding Terrorists  141 Prevention and Investigation Measures Act 2011 (TPIMs Act) omitted some of the more contentious aspects of the control order powers;63 in particular, there was no power to relocate a terrorist suspect in the now exhaustive list of measures that could be imposed on a person subject to a TPIM. Legislative powers to exclude suspected terrorists from or within the UK had thus come to an end for the first time in 10 years. However, this did not mean that all exclusionary powers had ended. A non-legislative policy of Deportation with Assurances had also been created to facilitate the deportation of non-national terrorist suspects to countries which might not otherwise be suitable recipients because of the protections afforded by the Chahal v UK64 interpretation of the prohibition on torture in the ECHR. The current policy of Deportation with Assurances emerged after the September 11 terrorist attacks, out of the then Prime Minister Tony Blair’s attempts to deport foreign terrorist suspects to countries with  whom the UK had established a ‘memorandum of understanding’.65 According to David Anderson, the former Independent Reviewer of Terrorism Legislation who reviewed the policy, the purpose of Deportation with Assurances ‘is to obtain assurances from the government of the receiving state which are sufficiently credible to allow deportation to take place without infringing the human rights of the deportee or the obligations of the state under international law’.66 Assurances have been negotiated with six countries: Jordan, Libya, Lebanon, Algeria, Ethiopia and Morocco, and 11 people have been deported since the policy was established.67 This includes, most notoriously, ‘radical cleric’ Abu Qatada who, prior to his deportation in 2013, had been detained under the ATCSA 2001 and had been subject to a control order.68 The absence of any statutory powers to exclude terrorist suspects was short lived. In late 2014, the violence which had initially erupted in Syria and Iraq as part of the Arab Spring began to intensify with the emergence of the terrorist organisation known as Islamic State and its declaration of a caliphate over the region. At that point, an estimated 500 British citizens had travelled to the region to participate in the conflict.69 In response, Parliament enacted two new powers to exclude

63 See, C Walker, ‘The Reshaping of Control Orders in the United Kingdom: Time for a Fairer Go, Australia!’ (2013) 37 Melbourne University Law Review 143, 151; C Walker and A Horne, ‘The Terrorism Prevention and Investigations Measures Act 2011: One Thing but Not Much the Other? (2012) 6 Criminal Law Review 421, 424–25. 64 (1996) 23 EHRR 413. 65 C Walker, ‘Part II: International and Comparative Law and Practice’ in D Anderson, Deportation with Assurances (Cm 9462, 2017) 51–52. 66 Anderson, Deportation with Assurances (n 42) 5. See also ch 6 (Anderson) in this collection. 67 Anderson, Deportation with Assurances (n 42) 5, 16, 22–23. 68 ibid 25. 69 Shiv Malik and Duncan Gardham, ‘Five Britons a week travel to Syria and Iraq to join Isis, says Met chief ’ The Guardian (21 October 2014). Current government estimates are that 850 UK citizens have travelled to join the conflicts in Syria and Iraq, with about half of those having returned to the UK. HM Government, CONTEST, The United Kingdom’s Strategy for Countering Terrorism: Annual Report for 2015 (Cm 9310, 2016) [2.35].

142  Jessie Blackbourn suspected terrorists, both within and from the UK.70 The Counter-Terrorism and Security Act 2015 effectively reintroduced the power the Home Secretary had previously had under the PTA 2005 to relocate terrorist suspects subject to a control order into the TPIMs Act 2011.71 TPIM subjects can now be relocated within the UK up to 200 miles away from their usual place of residence.72 The 2015 Act also created the Temporary Exclusion Order (TEO) regime. This substituted Cameron’s proposed ban (outlined at the start of this chapter) on UK nationals entering the UK. A TEO can be imposed by the Secretary of State if five conditions are met. First, ‘that the Secretary of State reasonably suspects that the individual is, or has been, involved in terrorism-related activity outside’ the UK. Second, ‘that the Secretary of State reasonably considers that it is necessary, for purposes connected with protecting members of the public in the United Kingdom from a risk of terrorism’. Third, ‘that the Secretary of State reasonably considers that the individual is outside’ the UK. Fourth, ‘that the individual has the right of abode’ in the UK. And fifth, except in urgent circumstances, that the Secretary of State has the prior permission of the court. The effect of a TEO is to prohibit the person from returning to the UK unless it is ‘in accordance with a permit to return issued by the Secretary of State’, or the ‘result of the individual’s deportation to the United Kingdom’.73 A permit to return may specify a range of obligations, including a requirement to report to a police station, notify the police of current place of residence and any change in that place of residence, and to attend appointments.74 It is a power of exclusion only in the sense that a person subject to the conditions of a TEO is prohibited from entering the UK in the absence of a permit from the Secretary of State (unless they are facing deportation); however, in effect, and despite their name, ‘the prime purpose’ of TEOs ‘is not exclusion but managed return’.75 Having outlined the relevant contemporary powers of exclusion, this chapter now turns to evaluating those measures against Walker’s five critiques of exclusion orders. Not all critiques are relevant to every contemporary iteration of exclusion.

III.  Critiquing Contemporary Exclusion Powers A.  Exclusion Fails to Prevent Terrorism Referring to exclusion orders, Walker noted in 1992 that ‘measures were included [in the PTA 1974] which not only failed to prevent terrorism but probably 70 Counter-Terrorism and Security Act 2015, pt 1, c 2. 71 ibid s 16(2). See also ch 6 (Anderson) in this collection. 72 TPIMs Act 2011, sch 1, s 3A. 73 Counter-Terrorism and Security Act 2015 s 2(1). 74 ibid s 9(2). 75 J Blackbourn and C Walker, ‘Interdiction and Indoctrination: The Counter-Terrorism and Security Act 2015’ (2016) 79 Modern Law Review 840, 850.

Excluding Terrorists  143 hindered that objective’.76 This was because police lost sight of terrorist suspects once they had been excluded.77 It is difficult to ascertain the extent to which the contemporary powers of exclusion have – or have not – prevented terrorism. Terrorism has not been eradicated by the existence of the various exclusion powers. In 2017 alone, 36 people were killed in terrorist attacks in the UK, despite the reintroduction of a relocation power in TPIMs and the establishment of the TEO regime in 2015. In 2005, 52 people were killed when four British suicide bombers conducted coordinated attacks against London’s transportation network. The control order powers, which had only recently replaced the indefinite detention regime, did not stop that attack. This is despite the fact that the new powers could be used against UK citizens (such as the London bombers), unlike the indefinite detention regime it replaced, which had only applied to foreign nationals. In contrast, the absence of exclusionary powers did not appear to increase the likelihood of terrorism occurring. Referring to the four-year period during which the Secretary of State had no statutory exclusionary powers available (between the repeal of control orders in 2011 and the introduction of TEOs and a power to relocate TPIM subjects in 2015), Walker notes that it does ‘not appear to have created any unmanageable extra threat to public safety’.78 At best, therefore, it can be argued that those subject to indefinite detention, control orders, TPIMs and TEOs were prevented from engaging in terrorist activity in the UK while they were subject to control by the state. A more nuanced analysis can perhaps be provided of the increased opportunity that exclusion provides to those excluded to engage in terrorism.

B.  Exclusion Displaces the Threat and Increases Opportunities to Engage in Terrorism In 1983, Walker highlighted that the exclusion of terrorist suspects from Great Britain was likely to ‘render more difficult police surveillance of the suspect and will increase his opportunities for involvement in terrorism’.79 This was because ‘removal to Northern Ireland, the heartland of paramilitary activity against the British state, seems to increase rather than decrease the opportunity for military engagement’.80 The same critique can be made against the recent powers to exclude terrorist suspects from the UK. For example, Walker has, on numerous occasions, highlighted the contradiction inherent in the Part 4 indefinite detention provisions of the ATCSA 2001, namely that they contained features that ‘were out of 76 Walker, The Prevention of Terrorism in British Law (n 3) 33. 77 ibid 87–88. 78 Walker, ‘The Reshaping of Control Orders in the United Kingdom’ (n 63) 153. 79 Walker, ‘The Jellicoe Report on the Prevention of Terrorism (Temporary Provisions) Act 1976’ (n 28) 490. 80 Walker, ‘Constitutional Governance and Special Powers Against Terrorism’ (n 26) 17.

144  Jessie Blackbourn keeping with the objective of public safety’81 because of ‘the creation of a “prison with three walls” – the absent fourth wall allowing foreign terrorists to depart the jurisdiction and plot abroad’.82 According to Walker, the two detainees who were ‘allowed to leave the jurisdiction … presumably now represent an even greater threat to security since they are at large and out of reach’.83 The policy of Deportation with Assurances (where deportation did not lead to a successful prosecution in the receiving country) creates a similar potential risk. Terrorist organisations, including al-Qaeda, Islamic State and affiliate organisations such as Al-Shabaab, operate in all six of the countries that have negotiated deportation agreements with the UK. Abu Qatada, for example, who UK governments deemed so dangerous as to detain between 2002 and 2013,84 was eventually deported under the programme to Jordan, to stand trial for historic terrorist offences. He was ultimately acquitted, and has since become a vocal critic of Islamic State.85 However, this is not because he has renounced jihadism per se, but because al-Qaeda, the terrorist organisation of which he is a leading member, has in his words been ‘ripped apart’ by Islamic State.86 It would be a mistake to consider that al-Qaeda (though the enemy of mine enemy) no longer poses a threat to the UK,87 and that excluding suspected terrorists to countries such as Jordan would not simply create further opportunities to engage in terrorism. It is possible that the creation of TEOs in the Counter-Terrorism and Security Act 2015 will have a similar effect. Persons excluded under this regime are likely to find themselves stranded in countries which border the conflict in Syria and Iraq, most likely in Turkey, from where they will be able to re-join the conflict, or possibly even plot to engage in, or incite, terrorist attacks in the UK. There they will be out of reach of the UK authorities. The principals behind the policy can be subjected to critique: The main policy objection to TEOs is that they represent a disincentive to return and thereby encourage the adoption of terrorism as a way of life. Discouraging voluntary return might be counter-productive. It will run the risk that [foreign terrorist fighters] will exacerbate foreign conflicts, obtain further skills, become further alienated from the UK, increase their chances of instigating terrorist attacks in the UK from overseas, and pose a greater risk if they finally do return.88 81 C Walker, ‘The Threat of Terrorism and the Fate of Control Orders’ [2010] Public Law 4, 10. 82 Walker, ‘Keeping Control of Terrorists’ (n 4) 1407. 83 C Walker, ‘Policy Options and Priorities: British Perspectives’ in M van Leeuwen (ed), Confronting Terrorism: European Experiences, Threat Perceptions and Policies (The Hague, Springer, 2003) 21. 84 Abu Qatada was initially detained under pt 4 of ATCSA 2001, but was released subject to a control order in March 2005 following the House of Lords decision in A v Secretary of State for the Home Department in December 2004. He was detained again in August 2005 pending deportation. Anderson, Deportation with Assurances (n 42) 25. 85 Spencer Ackerman, Shiv Malik, Ali Younes and Mustafa Khalili, ‘Al Qaida “cut off and ripped apart by Isis”’ The Guardian (10 June 2015). 86 ibid. 87 The terrorist attack on the Charlie Hebdo offices in Paris in 2015, for example, was carried out by members of al-Qaeda in the Arabian Peninsula. Angelique Chrisafis, ‘Charlie Hebdo attackers: born, raised and radicalised in Paris’ The Guardian (12 January 2015). 88 Blackbourn and Walker (n 75) 852.

Excluding Terrorists  145 As highlighted in the above quote, it is not just the possibility that excluded UK citizens may pose a threat to the UK that should be of concern, but that exclusion also serves to export terrorism, often to countries less able to deal with the threat. It is: [T]o some extent a reversal of the official policy not to ‘export risk’ to third countries, especially as many foreign authorities have less capability to deal with the risk than the UK … The policy now being pursued repeats this tendency and may clash with the duty to cooperate with other States to address the threat posed by [foreign terrorist fighters].89

The effect of these contemporary exclusionary powers is, essentially, to allow terrorist suspects to roam free abroad. The potential danger is clear: those excluded from the UK are free to engage in terrorist activities, such as participating in terrorist training or planning terrorist attacks, in a location outside the control, or investigative capacities, of the UK authorities. Despite the clear policy preference for powers of exclusion, the reality is that not many terrorist suspects have, in fact, been excluded from the UK since 2001. Of the 17 persons subject to indefinite detention under the ATCSA 2001, none were actually deported, though two left voluntarily.90 A total of 11 persons have been deported under the Deportation with Assurances programme,91 and only one TEO is known to have been issued since the powers were created in 2015.92 The size of these numbers perhaps suggests a rejoinder to Walker’s first critique: that exclusion fails to prevent terrorism. With so few suspected terrorists actually subject to exclusion from the UK (compared with the 23,000 current ‘subjects of interest’ within the UK),93 exclusion will only be a small part of the UK’s counter-terrorism response, and cannot possibly prevent determined UK citizens carrying out terrorist attacks in the UK.

C.  Exclusion has not been Used as a Last Resort When introduced, the power to exclude terrorist suspects from Great Britain was described by the Home Secretary as ‘exceptional’ and designed to be able to fulfil ‘the need to be able to take effective action against those who are involved in the terrorist campaign but against whom there is not evidence of the kind needed

89 ibid 852. 90 Home Office, Anti-Terrorism, Crime & Security Act 2001 – Detainees under Part 4 (London, The Stationery Office, 2005). 91 Anderson, Deportation with Assurances (n 42) 5, 16, 22–23. 92 Peter Walker, ‘Rudd admits anti-terror exclusion powers used only once since 2015’ The Guardian (29 May 2017). See also C Walker, ‘Foreign Terrorist Fighters and UK Counter-Terrorism Laws’ in D Anderson, The Terrorism Acts in 2015 (Home Office, 2016) Annex 2, 121; Home Office, HM Government Transparency Report 2017: Disruptive and Investigatory Powers (Cm 9420, 2017) 25. 93 Mark Rowley, ‘Extremism and Terrorism: The need for a whole society response’ Policy Exchange (26 February 2018), available at: policyexchange.org.uk/pxevents/the-colin-cramphornmemorial-lecture-by-mark-rowley.

146  Jessie Blackbourn for a successful prosecution’.94 Exclusion orders were not to be used, according to Walker: ‘if a successful prosecution is feasible; exclusion should be unavoidable, rather than merely advantageous’.95 The primacy of criminal prosecution remains government policy with regard to terrorist suspects.96 This is evidenced by a significant number of terrorist prosecutions in the foreign terrorist fighter era. In the three years since September 2014, more than 150 persons have been convicted of terrorist offences.97 The number of executive exclusionary orders that have been used, on the other hand, is much lower. No one has been deported under the Deportation with Assurances programme since 2013;98 only one TEO has been issued in the three years since the powers have been on the statute books; and nine persons subject to TPIMs in the same period have been relocated.99 Despite this limited use of exclusionary powers and the existence of a policy of the primacy of prosecution, it appears that executive powers of exclusion may have been used when it was merely advantageous to do so, not simply as a last resort. For example, when the indefinite detention provisions of the ATCSA 2001 were repealed in March 2005, nine former detainees, including Abu Qatada, were issued with control orders.100 However, five months later, in August 2005, the nine control orders were revoked, and the former controlees were instead detained pending deportation.101 This is particularly odd, as the reason these men were detained under the ATCSA 2001 in the first place was because it was considered that they could not be deported and so could not be detained as this would breach the requirement in Article 5(1)(f) of the ECHR that detention is only lawful where ‘action is being taken with a view to deportation’. Although no prosecution was forthcoming in these instances, it raises questions as to the necessity of detaining these nine men indefinitely in the first place, and imposing control orders upon them subsequently.

D.  Misuse of Exclusion Against Extremists Referring to the de facto extension of the Home Secretary’s power under the PTA 1974 to exclude suspected terrorists to members of extremist, rather than terrorist, organisations, such as Sinn Féin, Walker concluded that ‘This is a most disturbing feature of the use of exclusion powers, since its effect is to shield the people of Britain not so much from violence as from unpalatable political viewpoints’.102 94 HC Deb 25 November 1974, vol 882, col 637 (Roy Jenkins). 95 Walker, The Prevention of Terrorism in British Law (n 3) 72. 96 HC Deb 21 February 2008, vol 472, col 561 (Tony McNulty). See also HM Government, CONTEST (n 69). 97 Home Office, ‘Operation of Police Powers under the Terrorism Act 2000: Quarterly Update to September 2017: Annual Data Tables’ (Home Office, Statistical Bulletin 24/17, 2017) A.08a, A.08b. 98 Anderson, Deportation with Assurances (n 42) 22–23. 99 Blackbourn, Kayis and McGarrity (n 2) 54–55. 100 Walker, ‘Keeping Control of Terrorists’ (n 4) 1410. 101 ibid. 102 Walker, The Prevention of Terrorism in British Law (n 3) 86.

Excluding Terrorists  147 None of the contemporary statutory powers of exclusion appear to have been extended to extremist, as opposed to terrorist, suspects – at least in the text of the legislation, although in part this could be the result of a very broad definition of ‘terrorism-related activity’ on which these new powers are based. Section 4 of the TPIMs Act 2011, for example, includes in its definition of terrorism-related activity any ‘conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in … the commission, preparation or instigation of acts of terrorism’. There is also an overall trend within government counter-terrorism and counter-extremism policy to conflate terrorism and violent extremism with mere (non-violent) extremism.103 This is also reflected in the Conservative government’s plans, first touted in 2015, to introduce a ‘Counter-Extremism Bill’ which would, amongst other powers, enable the Home Secretary to ban non-violent extremist organisations and place restrictions on the behaviour of extremists, which might be akin to control orders and TPIMs. Those plans have, however, stalled amidst difficulties producing a ‘legally robust definition of extremism’.104 The resolution of this conceptual difficulty is the first task of the new Commissioner for Countering Extremism, Sara Khan, who was appointed in early 2018.105 If a legally viable definition of extremism can be identified by the Commission for Countering Extremism, this will open the door to the extension of exclusionary powers similar to those used against suspected terrorists to non-violent extremists.

E.  Difficulty Challenging Exclusion on Account of the Reliance on Intelligence Material It was clear to legislators in 1974 that intelligence material would be the basis of the exclusion order regime. During the parliamentary debate on the Prevention of Terrorism (Temporary Provisions) Bill, Home Secretary Roy Jenkins stated clearly: We must not be inhibited, by an inability to use highly sensitive information, from getting rid of terrorists who may, if we do not get rid of them, commit in the future some dreadful act in this country … There can be, therefore, no question of open proceedings or the public presentation of evidence.106

103 This can be seen in the 2011 version of CONTEST, the government’s counter-terrorism strategy. It stated that the ‘Prevent’ strand of the policy ‘needs to deal with extremism where extremist and terrorist groups share common views; and where people who are extremists are being drawn towards terrorism-related activity’. HM Government, CONTEST: The United Kingdom’s Strategy for Countering Terrorism (Cm 8123, 2011) 62. For further discussion of terrorist speech, see ch 10 (Petzsche and Cancio Melià) in this collection. 104 Alan Travis, ‘Paralysis at the heart of UK counter-extremism strategy’ The Guardian (17 September 2017). 105 Home Office, ‘Sara Khan to lead Commission for Countering Extremism’ (24 January 2018): www. gov.uk/government/news/sara-khan-to-lead-commission-for-countering-extremism. 106 HC Deb 25 November 1974, vol 882, cols 637–38 (Roy Jenkins).

148  Jessie Blackbourn This has also been the basis of all the contemporary exclusion powers. Proceedings relating to detainees under the Part 4 indefinite detention powers of the ATCSA 2001, controlees, and TPIM subjects all rely predominantly on mere intelligence rather than evidence. Where that intelligence is sensitive, and cannot be disclosed on the grounds of national security, proceedings take place in the absence of the terrorist suspect and their lawyer. The introduction of special advocates, as a way of mitigating against the seemingly inherent unfairness of closed material proceedings, has – to some extent – improved upon the position of those subject to exclusionary powers in the twentieth century.107 However, such improvements have not always been at the government’s bequest. Changes to closed material proceedings, in particular to increasing fair trial rights, have often been incremental and hard won.108 They are, however, an improvement on the situation faced by those excluded by the Home Secretary under the various Prevention of Terrorism (Temporary Provisions) Acts in the twentieth century. Referring to control orders, Walker notes that the PTA 2005: [P]rovides a platform for intervention by the High Court, whose authority and ability to face down the securitocracy, including the Home Secretary, has unquestionably surpassed the deferential approach adopted in response to previous executive measures, including the experience of exclusion orders from 1974 to 1998.109

The Counter-Terrorism and Security Act 2015 represents something of a reversal of the improvements made in recent years. In relation to TEO proceedings, the Act states that nothing ‘is to be read as requiring the relevant court to act in a manner inconsistent with Article 6 of the Human Rights Convention’.110 However, the Act also allows for special rules of the court to be made, which enable TEO proceedings to be held in a closed material proceeding in the absence of the person affected by the TEO and their legal representative.111 Special advocates may be appointed to mitigate the difficulties this creates; however the requirement under the Act to protect secret intelligence has a seriously detrimental impact on the fairness of the procedures.112

IV.  Potential Future Trajectories Exclusion is an extreme measure. This was recognised in the mid-1970s, with the PTA 1974. That notwithstanding, in the past two decades the UK government has 107 See further ch 7 (Jackson) in this collection. 108 See, eg, Secretary of State for the Home Department v MB [2007] UKHL 46; Secretary of State for the Home Department v AF, AM, AN; AE v Secretary of State for the Home Department [2008] EWCA Civ 1148; A v UK (2009) 49 EHRR 29; Secretary of State for the Home Department v AF [2009] UKHL 28. 109 Walker, ‘The Threat of Terrorism and the Fate of Control Orders’ (n 81) 5–6. 110 Counter-Terrorism and Security Act 2015, sch 3, s 5. 111 ibid sch 3, s 2. 112 Blackbourn and Walker (n 75) 853.

Excluding Terrorists  149 introduced a range of both legislative and non-legislative exclusionary powers, designed to counter the prevailing terrorist threat. In 2001, the powers focused, albeit unsuccessfully, on excluding foreign nationals. From 2005, that focus shifted to what Walker has referred to as ‘neighbour terrorism’113 – UK citizens who posed a domestic terrorist threat. To mitigate that threat, exclusion was used within the UK to relocate terrorist suspects away from London where it was perceived they posed the greatest danger. Most recently, in response to the phenomenon of foreign terrorist fighters, the government has shifted focus again, to exclusion from the whole of the UK. Unlike the powers introduced in 2001, exclusion now applies to both foreign citizens and UK nationals. Despite the government’s enthusiasm for creating exclusionary powers, there has not been a significant use of those measures. This is in contrast to the use of exclusion orders in the twentieth century. Nearly 450 such orders were made during the 24 years those powers were on the statute books.114 The new TEO powers established in 2015, for example, were claimed by the government to be necessary to fill a capabilities gap, and urgent enough to justify using the parliamentary fast-track procedure. However, only one TEO is known to have been issued since then,115 though the Home Office has stated rather vaguely that in fact they ‘have been used on “several” occasions’.116 The indefinite detention provisions of the ATCSA 2001 were only used to detain 17 suspected terrorists before they were repealed in March 2005.117 None of the 17 persons subject to the detention provisions were deported, though two left voluntarily to a third country that was willing to accept them. Ten were detained indefinitely.118 All were subject to control orders when the PTA 2005 established that new regime in place of indefinite detention. A further 42 people were subject to control orders during the six-and-a-half years the powers were on the statute books.119 When the TPIMs Act 2011 repealed the control order regime, all nine controlees were transferred to TPIMs, though none of them were subject to exclusionary powers as these were not included in the new Act.120 A further eight persons have been subject to TPIMs since the regime was introduced, all of whom have been relocated under the amendments introduced in 2015.121 In addition, 11 persons have been deported under the Deportation with 113 See, eg, Walker, ‘Keeping Control of Terrorists’ (n 4) 1397. 114 J Doody, ‘Creating Suspect Communities: Exploring the Use of Exclusion Orders in Northern Ireland’ (2012) 4 Behavioral Sciences of Terrorism & Political Aggression 77, 80. 115 Peter Walker (n 92). See also Walker, ‘Foreign Terrorist Fighters and UK Counter-Terrorism Laws’ (n 92) 121; Home Office, HM Government Transparency Report 2017 (n 92) 25. 116 Tim Shipman, Richard Kerbaj and Dipesh Gadher, ‘Ministers strip 150 jihadists of UK passports’ The Sunday Times (30 July 2017). 117 A v Secretary of State for the Home Department [2004] UKHL 56; PTA 2005, s 16(2)(a). 118 Home Office, Anti-Terrorism, Crime & Security Act 2001 (n 90). 119 D Anderson, Control Orders in 2011 (London, The Stationery Office, 2012) 4. 120 D Anderson, Terrorism Prevention and Investigation Measures in 2014 (London, The Stationery Office, 2015) 5. 121 Information available from the Home Secretary’s Written Ministerial Statements on TPIMs. See, HC Deb 10 December 2015, HCWS382 (Theresa May); HC Deb 19 July 2017, HCWS173 (Amber Rudd).

150  Jessie Blackbourn Assurances programme. This means that in total, approximately 70 persons have been ‘excluded’ in some way from or in the UK since 2001. In the same period, nearly 700 persons have been convicted of terrorism-related offences.122 Not only have powers to exclude not been used to a significant extent (although the effect of exclusion is, of course, significant on the person who experiences it), they have also not been useful in responding to recent terrorist attacks in the UK. Five terrorist attacks took place in the UK in 2017. Only one – the Manchester Arena bombing – was carried out by a person who had previously travelled abroad to engage in training with a terrorist organisation, and thus could have been – but was not – subject to a TEO. While the perpetrators of all five terrorist attacks could have been subject to a relocation order under a TPIM, none of them appear to have sufficiently come to the attention of the authorities to be considered suitable for this regime. The policy of Deportation with Assurances is also not particularly useful in dealing with the perpetrators of the recent terrorist attacks in the UK. The vast majority of the attacks were carried out by UK citizens. Only two of the three perpetrators of the London Bridge terrorist attack, who were Moroccan, could have been subject to deportation.123 This problem has been noted by Anderson, who in his recent review of the policy stated: ‘It is now clear that the principal terrorist threat to the UK comes from UK citizens, who by definition are not eligible’ for deportation.124 Anderson has noted one other core problem with relying on exclusion, as highlighted by the Deportation with Assurances programme: The beheading of westerners by the likes of Mohammed Emwazi (‘Jihadi John’), and the ease with which extremist ideologies can be seen to cross geographical frontiers, have underlined that national security threats to the UK cannot simply be extinguished by removing suspects from the jurisdiction.125

Despite these significant flaws, it is unlikely that powers to exclude terrorist suspects will be removed any time soon. They have been part of the executive’s counter-terrorism toolkit for all but seven of the past 44 years, and it appears that recent governments seem as keen to export the terrorist threat as those that dealt with terrorism related to the conflict in Northern Ireland. While the focus of twentieth-century governments was to displace terrorism – via the exclusion of terrorist suspects – to Northern Ireland, contemporary governments have tried to exclude terrorist suspects from the whole of the UK where possible, but at least from London if that is all that is available. The government’s focus on exclusion as a means to secure the safety of the UK is – though perhaps understandable – misguided. It creates a practical impediment to the international cooperation that a global threat of terrorism warrants. Laws that exclude nationals from one ­country simply serve to export or displace terrorism to another.



122 Home

Office, ‘Operation of Police Powers under the Terrorism Act 2000’ (n 97) A.06c. Anderson, Attacks in London and Manchester (2017) 1–2. 124 Anderson, Deportation with Assurances (n 42) 30. 125 ibid 30–31. 123 D

10 Speaking of Terrorism and Terrorist Speech: Defining the Limits of Terrorist Speech Offences anneke petzsche and manuel cancio meliá Introduction It scarcely needs stating that Clive Walker’s main research interests lie with ‘­Terrorism and the Law’.1 He has academically accompanied the developments in this area since writing his PhD in 1982 on ‘The Prevention of Terrorism in ­British Law’.2 Indeed, Clive often says that academics starting to research in this area today could not possibly cover the sheer breadth of UK counter-terrorism law, given how much it has expanded since he first started writing in this area. While there have been significant developments in both the threat and the law in the intervening decades, one development in particular was not foreseeable back then: the rise of the internet and its influence on, and the resulting change in, terrorist methods. Digitalisation, and the changes to communication means and strategies it entailed, has become one core problem in the fight against terrorism. While Clive could not have predicted this radical change in modern communication (as hardly anyone could have), he nonetheless soon realised its importance and has exhaustively covered this area, stressing its significance.3 Sociological and legal scholars have long held that at its core terrorism is a communication strategy.4 It is central for terrorist organisations to communicate 1 Aptly, one of his key works in this area bears the same name: C Walker, Terrorism and the Law (Oxford, Oxford University Press, 2011). 2 Subsequently published as C Walker, The Prevention of Terrorism in British Law (Manchester, Manchester University Press, 1986). 3 See, inter alia, Y Akdeniz, C Walker and D Wall, The Internet, Law and Society (London, Longman, 2000); C Walker, ‘Cyberterrorism and the Law’ in F Schmalleger and M Pittaro (eds), Crimes of the Internet (Englewood Cliffs, NJ, Prentice Hall, 2008) 612; C Walker, ‘Cyber-Terrorism: Legal Principle and Law in the United Kingdom’ (2006) 110 Penn State Law Review 625; C Walker and M Conway, ‘Online Terrorism and Online Laws’ (2015) 8 Dynamics of Asymmetric Conflict 156; J Blackbourn and C Walker, ‘Interdiction and Indoctrination: The Counter‐Terrorism and Security Act 2015’ (2015) 79 Modern Law Review 840. 4 AP Schmid and J de Graaf, Violence as Communication. Insurgent Terrorism and the Western News Media (Beverly Hills, CA, Sage, 1982); MA Zöller, ‘Willkommen in Absurdistan – Neue

152  Anneke Petzsche and Manuel Cancio Meliá and stress their goals in order to distinguish themselves from ‘normal’ criminals. Terrorists and terrorist organisations attempt to achieve their (political) aims through violent means by trying to use the fear that their actions cause in a society and, especially, the possible reaction of the state. For this fear to take root and reactions to be sparked, society needs to be aware of the threat and what and who lies behind it. Thus, communication is a cornerstone of any terrorist strategy. While this has a long history,5 new technological means have transformed communication in myriad ways. The internet provides for a (mostly) safe space to propagate terrorist ideas, recruit supporters and ‘get their message out’, not only locally but on a massive and international scale.6 Nowadays, terrorist communications are not bound by national frontiers, thus, propaganda messages and videos filmed in conflict zones such as Iraq or Syria are used to radicalise youth in European countries. While not being the only radicalisation factor, online propaganda did play a role in many recent attacks such as the 2017 London Bridge attack and the Manchester bombing in the UK.7 As this development was recognised by democratic societies threatened by terrorism, an important part of political and legislative measures at national and international levels is now focused on terrorist speech.8 As a consequence of this completely new strategy, terrorist speech offences were created in all EU Member States.9 These offences form part of a general development of broadening the scope of criminal law and of a focus on prevention that brings with it new challenges for traditional concepts of criminal law.

Straftatbestände zur Bekämpfung des Terrorismus’ (2010) Goltdammer’s Archiv für Strafrecht 607, 612 ff; M Cancio Meliá, Los delitos de terrorismo: estructura típica e injusto (Madrid, Reus, 2010) 67 ff with further references. 5 Most social science scholars think that terrorism as such is a phenomenon that only became ­possible with the second industrial revolution, bringing with it mass literacy and mass newspapers, in the second half of the 19th century. See, eg, for the Spanish case: Cancio Meliá, Los delitos de terrorismo (n 4) 55 ff; S Martín, ‘Criminalidad política y peligrosidad social en la España contemporánea’ (2009) 38 Quaderini Fiorentini 861 ff, 894 ff. 6 Europol, European Union Terrorism Situation and Trend Report 2017 (The Hague, 2017) 25 ff and 29 ff. 7 Peter Neumann and Shiraz Maher, ‘London attack: How are UK extremists radicalised?’ BBC News (5 June 2017); Chris Osuh, ‘The making of a monster: How Manchester boy Salman Abedi became a mass murderer’ Manchester Evening News (17 September 2017). Though research suggests that offline social networks are as, or more, important in radicalising to the point of action: see Neumann and Maher, ibid. 8 eg, both the Council of Europe’s Convention on the Prevention of Terrorism 2005 (CoC 2005) and the EU Framework Decision 2008/919/JHA of 28 November 2008, amending Framework Decision 2002/475/JHA on combating terrorism (FD 2008), specifically require their Member States to penalise public provocation to commit terrorist offences. See also A Petzsche, ‘The Penalization of Public Provocation to Commit a Terrorist Offence – Evaluating Different National Implementation Strategies of the International and European Legal Framework in Light of Freedom of Expression’ (2017) 7 European Criminal Law Review 241, 243 ff. 9 Specifically, on the implementation of CoC 2005 and FD 2008 in Germany, the UK and Spain, see A Petzsche, Strafrecht und Terrorismusbekämpfung – Eine vergleichende Untersuchung der Bekämpfung terroristischer Vorbereitungshandlungen in Deutschland, Großbritannien und Spanien (Baden-Baden, Nomos, 2013).

The Limits of Terrorist Speech Offences  153 This  preventive character is especially pronounced in terrorist speech offences because not only are they typically divorced from perpetration of an actual terrorist attack, but mostly this lack of a specific outcome is expressively stated in the relevant criminal provisions.10 Thus, they penalise acts in the preliminary stages of a terrorist attack falling in the category of precursor crimes.11 As such, these offences are faced with the same critique as other precursor crimes, namely, that they tend to lack a harm element legitimising criminalisation or, at best, have established a very tenuous link. Consequently, legislators in creating these offences risk blending and confounding categories of terrorist speech (the legitimately punishable terrorist act) with speaking of terrorism (the ‘mere’ voicing of difficult-to-bear opinions), more often than not failing in the face of that challenge. Additionally, the communicative element of terrorism highlights another key aspect of terrorist speech offences. These offences target communications, speech, comments, statements and expressions. As such, the legal responses to terrorism threaten to come into conflict with fundamental rights of the accused, more specifically with their freedom of expression. Thus, in this area, two of Clive’s main research interests converge as he has focused not only on terrorism but also on civil liberties and human rights, always promoting their importance, especially in the area of terrorism laws.12 Therefore, following in the footsteps of his critical thinking, in this chapter we examine terrorist speech offences in the UK, Germany and Spain in light of the freedom of expression with a focus on the question: which behaviour should be legitimately criminalised and which should not be covered by criminal law? In one of Clive’s co-edited books, we have called for a higher standard of justification for precursor crimes, one that goes beyond the reflex of referring to amorphous dangerousness and risk.13 To date, as developments in the area of counter-terrorism (criminal) law have shown, national legislators have not been so inclined. We remain convinced of the necessity to define limits to the criminalisation of terrorist (preparatory) acts and, in this chapter, we will propose one in this area. To this end, in the next section we conceptualise terrorist speech offences by developing three main areas in which they are rooted. Then, we evaluate current examples in British, German and Spanish law. In the final section, we develop criteria to distinguish ‘mere’ inopportune speech from legitimate terrorist speech offences.

10 eg, Terrorism Act 2006, s 1(5) and s 2(7) (TA 2006). 11 See M Cancio Meliá and A Petzsche, ‘Precursor Crimes of Terrorism’ in G Lennon and C Walker (eds), The Routledge Handbook of Law and Terrorism (London, Routledge, 2015) 194. We use the term in its narrow sense, covering only preparatory acts to specific criminal acts and constituting a preparation to the ‘core crime’ of the terrorist act itself (such as homicide, murder, kidnapping, etc). 12 Walker proposes the normative setting of ‘constitutionalism’, see C Walker, Blackstone’s Guide to the Anti-Terrorism Legislation, 3rd edn (Oxford, Oxford University Press, 2014) para 1.55 ff. See also C Walker, ‘Keeping Control of Terrorists Without Losing Control of Constitutionalism’ (2007) 59 Stanford Law Review 1395. 13 Cancio Meliá and Petzsche, ‘Precursor Crimes of Terrorism’ (n 11) 194, 205.

154  Anneke Petzsche and Manuel Cancio Meliá

I.  Conceptualising Terrorist Speech Offences How to deal with terrorist speech is a problem that legislators have faced for quite some time – not only since the rise of the age of the internet. Historic examples of terrorist speech offences show that the challenges remain the same today: to create speech offences that only criminalise acts meriting criminal punishment covering only genuinely criminal conduct without unduly infringing on the rights and freedoms, especially the freedom of expression, of the persons affected.14 An example of a failed attempt in Germany is section 129a (3) of the Strafgesetzbuch (StGB – ie, German Criminal Code) (in its former version) – a criminal offence that was introduced in 1976 in the wake of a number of terrorist attacks perpetrated by the RAF (Rote Armee Fraktion).15 That provision specifically criminalised the promotion of a terrorist organisation. While the specific extent was debated (such as whether a hunger strike in prison by members of the RAF, with the goal of raising sympathy for their terrorist organisation, would satisfy the actus reus requirements),16 in general the mere lobbying for sympathy or approval (the so called Sympathiewerbung) fell within the norm.17 Following severe criticism due to its wide scope, a small change to the wording of the provision was made in 2002 which clarified that mere lobbying for sympathy or approval was to be excluded from the norm. Rather than cover any endorsement that promotes the ideology and goals of a terrorist organisation, it is now confined to soliciting new members or supporters.18 In contrast, in Spain, the crime of ‘exaltation or justification’ of terrorist offences or of their perpetrators was introduced in 2000.19 Similarly, the UK has the crime of glorification of terrorism.20 These legislative choices have generally been uncommon in the European context because of their dangerous proximity to infringing on the fundamental right to free speech. Unfortunately, however, it can now be expected that such offences will become a general trend, as the penalisation of glorification is 14 E Barendt, ‘Threats to Freedom of Speech in the United Kingdom?’ (2005) 28 UNSW Law Journal 895; E De Brabandère, ‘The Regulation of Incitement to Terrorism in International Law’ in L Hennebel and H Tigroudja (eds), Balancing Liberty and Security: The Human Rights Pendulum (Nijmegen, Wolf Legal Publishers, 2011) 219, 220. 15 J Schäfer, ‘§ 129 StGB’ in W Joecks and K Miebach (eds), Münchener Kommentar Strafgesetzbuch, 3rd edn (München, CH Beck, 2017) para 7. 16 ibid para 95. 17 BGH 3 StR 62/84, BGHSt 33, 16, 18 = NStZ 1985, 21, 22; StB 20/87, NJW 1988, 1679. 18 Petzsche, ‘The Penalization of Public Provocation’ (n 8) 251; K Lohse, ‘§ 129a StGB’ in H Satzger, W Schluckebier and G Widmaier (eds), StGB – Strafgesetzbuch Kommentar, 2nd edn (Köln, Carl Heymanns Verlag, 2014) para 29; B von Heintschel-Heinegg, ‘§ 129a StGB’ in B von HeintschelHeinegg (ed), Beck’scher Online Kommentar StGB, 33rd edn (München, CH Beck, 2016) para 15a. 19 Art 578 Código Penal (CP): apology or justification of terrorist offences or offenders; the original version (Organic Law 7/2000) has been reformed: introducing harsher penalties (the penalty [with a minimum penalty of one year’s imprisonment] was raised from a maximum of two years’ imprisonment [a two-year sentence being the maximum sentence eligible for parole for first-time offenders] to three years) and a broader wording (including now public speech not conveyed by a broadcast medium) in 2015 (Organic Law 2/2015). 20 TA 2006, s 1.

The Limits of Terrorist Speech Offences  155 explicitly demanded by the recent Directive 2017/541 on combating terrorism in the European Union (though this instrument stresses that glorification is only to be criminalised by Member States as a form of provocation, ie, if this conduct creates a real danger of the perpetration of terrorist acts in their narrow sense).21 Nevertheless, the relevant Spanish provision in Article 578 Código Penal (CP) has recently been interpreted in some case law as not requiring any real danger to be created at all. This case law will be discussed further later. Thus, the potential conflict with freedom of expression is apparent. It is important to realise that freedom of expression – as, for example, provided for in Article 10 ECHR – protects primarily the expression of opinion and is not limited to majoritarian or tolerable opinions, but also covers unbearable and intolerable opinions.22 In fact, the content of a statement is not relevant in determining the scope of protection, such that it applies ‘not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the ­population’.23 Even statements that are directed against the principles of a democratic state are in principle protected by Article 10 ECHR.24 Therefore, it is of paramount importance to distinguish between terrorist speech and speaking of terrorism: the former is a legitimately punishable terrorist act of material support where an interference with the freedom of expression is justified,25 while the latter involves the ‘mere’ voicing of hateful or difficult-to-bear opinions protected by freedom of expression. When examining current speech offences, they can be categorised into the following three groups: communicative acts that provide material support for a terrorist organisation; the (individual) preparation of terrorist acts through communicative means; and the glorification or apology of terrorism. The first category comprises material support of terrorist organisations in the form of communication. The material act of supporting a terrorist organisation covers numerous different activities. To give just one example, Article 577(1) of the Spanish CP lists as acts of collaboration, inter alia, information on or surveillance of persons, property or installations; construction, conditioning, assignment or use of accommodation or storage facilities; concealment, 21 Even though the UK is not bound by the Directive, it has already been stressed that future cooperation in security matters is intended (see, eg, Alan Travis, ‘UK calls for treaty on post-Brexit security cooperation with UK’ The Guardian 18 September 2017); there also seems to exist no reason why the status quo of criminal offences should be changed as the relevant norms were introduced as a result of the CoC 2005 that still binds the UK. See Petzsche, Strafrecht und Terrorismusbekämpfung (n 9) 248 f. 22 C Grabenwarter, European Convention on Human Rights Commentary (München, CH Beck, 2014) Art 10, para 4. 23 Handyside v UK App no 5493/72 (7 December 1976) para 49. 24 Implicitly Müslüm Gündüz v Turkey App no 35071/97 (4 December 2003) para 51; Grabenwarter (n 22) Art 10, para 6. 25 Art 10(2) ECHR clearly states that Member States are allowed to interfere with this freedom if they comply with the requirements set out in Art 10 ECHR, namely, if the interference is ‘necessary in a democratic society’.

156  Anneke Petzsche and Manuel Cancio Meliá hosting or transport of individuals related to terrorist organisations or groups; organisation of training practices or attending them, the provision of technological service and, in general, any other equivalent form of cooperation or assistance.26

Many of these contain as a vital part communication acts, thereby illustrating the broad range of activities covered. This example illustrates the need for clearer guidance on which conduct is to be legitimately criminalised. The second category covers individual preparatory acts of terrorism through communicative means. To give an example: supplying or receiving written material via the internet or other means which contains instructions on the commission of a terrorist act falls into this category. However, the dissemination/obtaining of such material can also have a legitimate purpose, for example for journalistic or academic objectives,27 therefore again raising the question where to draw the line between legitimate criminal acts and protected acts of communication. The third category encompasses acts of glorification or apology. This one is the broadest, and most problematic, category as it covers mere public praise or justification of terrorist acts. Not all countries in the EU have introduced such offences. As we shall see later in the text, in Spain, the crime of ‘exaltation or justification’ of terrorist offences or of their perpetrators was introduced in 2000. The UK introduced offences penalising the glorification of terrorism in 2006. The three distinct forms of precursor crimes of terrorism huddle together under the umbrella term of ‘terrorist speech offences’. While they all have a rather tenuous link to an actual terrorist act in common, the nexus to such an act – or the lack thereof – varies according to the different categories. Thus, their justification is questionable and it is important to map out the existing link (if there is any) in order to be able to establish a necessary link to create legitimate criminal offences. In the next section we examine current examples of terrorist speech offences in Germany, Spain and the UK to show how far we have strayed from such a necessary link.

II.  Categorising and Evaluating Terrorist Speech Offences in Germany, Spain and the UK A.  Communicative Acts Providing Material Support for a Terrorist Organisation Examples of the first category of the criminalisation of communicative acts that provide material support for a terrorist organisation include section 129a(5) of the German StGB and Article 577 of the Spanish CP. 26 Official translation by the Ministerio de Justicia. For all following verbatim quotes of Spanish offences, the official translation is used as far as it contains the relevant provisions. 27 See, as an example the case of Riswaan Sabir: Sam Jones, ‘Student in al-Qaida raid paid £20,000 by police’ The Guardian (14 September 2011).

The Limits of Terrorist Speech Offences  157 Section 129a(5) StGB criminalises the support of a terrorist group and the recruitment of members or supporters for a terrorist group. First, support encompasses certain forms of aiding and abetting by non-members. The support can also be provided through communication. However, such acts need to be effective to promote, enhance or secure the specific potential threat the terrorist organisation poses, and to benefit the organisation.28 Second, and alternatively, recruitment encompasses propaganda activities that are beneficial for the organisation and are directed at individuals or the public. The recruitment needs to be directed towards the group’s organisational preservation or enhancement through recruiting new members or third-party supporters.29 The recruitment must be undertaken in favour of a specific terrorist organisation: a general call to participate in terrorist acts or in the ‘jihad’ does not suffice.30 This norm consequently mainly encompasses forms of direct incitement. As discussed above, a small change to the wording of the provision in 2002 had served to clarify that the mere lobbying for sympathy or approval was to be excluded from the norm. Rather than cover any endorsement that promotes the ideology and goals of a terrorist organisation, the offence is now confined to soliciting new members or supporters.31 Endorsements of organisations like al-Qaeda, the justification of their aims, or glorification of their criminal acts alone do not constitute the offence of supporting terrorism in German law.32 A case dealing with this offence illustrates its scope. The defendant was a member of different internet platforms, the goal of which was to translate into Western languages, and spread, jihadist propaganda.33 In 2007 the defendant had provided on such a platform a link to a video of ‘Al-Qaeda in the Land of the Two Rivers’ which showed the beheading of an American hostage by the leader of the group Abu Musab Al Zarkawi in 2004. The execution was preceded by a message in which Al Zarkawi referred to the events in Abu Ghraib and called on all Muslims to fight and take revenge on America. In his speech, that was translated in subtitles, the leader said, inter alia: ‘Kill the polytheists, wherever you find them!’ The Federal Criminal Court did not uphold the conviction of the lower court for section 129a(5) StGB.34 It found that posting the link did not provide a tangible benefit for the terrorist organisation. Therefore, the act was limited to a mere endorsement of the organisation, the justification of its aims and glorification of criminal acts which did not fulfil the requirements of the offence.35 It is correct that this section is narrowly construed by the courts. Notably, the requirement of a 28 s 129a(5)1 StGB. 29 ibid s 129a(5)2. 30 von Heintschel-Heinegg (n 18) para 15a. 31 Lohse (n 18) para 29; von Heintschel-Heinegg (n 18) para 15a. 32 von Heintschel-Heinegg (n 18) para 17; BGH 3 StR 314/12, NStZ-RR 2013, 171. 33 BGH 3 StR 314/12. 34 ibid para 11. 35 ibid. However, this did not mean that the defendant was acquitted. Even though the Court had quashed the conviction for s 129a(5) StGB, it stressed that other criminal offences were indeed applicable, mainly s 131 StGB – the dissemination of depictions of violence.

158  Anneke Petzsche and Manuel Cancio Meliá tangible benefit serves to necessitate a stronger link between a (mere) communicative act and a terrorist organisation. The Spanish offence of collaboration with a terrorist organisation or group, Article 577.2 CP, also contains a reference to communication-collaboration, by way of so-called ‘indoctrination’. A number of cases have been brought before the courts in recent years, all of them referring to jihadi terrorism.36 There was no need for this new offence (which was introduced in 2010 invoking the 2008 EU Framework Decision on terrorism), because the relevant criminal behaviour was already covered by other provisions. Thus, this provision is a prime e­ xample of the recent Spanish legislative approach of consistently adding ‘something’ to the relevant provisions every few years, without proper consideration of the compatibility with former ‘layers’ of legislation.37 This, however, leads to a very confusing situation: if somebody disseminates jihadi propaganda material, is she liable as a member of a terrorist group (Article 572.2 CP)? Or has she committed a crime of ‘spreading messages or slogans’ that could incite others to commit terrorist offences (Article 579.1 CP)? Is she provoking others to commit these crimes (Article  579.2  CP)? Or does she ‘justify’ perpetrators of terrorist acts or their crimes (Article 578 CP)? Or, finally, is she collaborating by way of indoctrination with a terrorist organisation? The legal uncertainty is complete.38

B.  Individual Preparation of Terrorist Acts Through Communicative Means Under the second category, the individual preparation of terrorist acts through communicative means, we can consider, inter alia, section 89b StGB (Establishing contacts for the purpose of committing a serious violent offence endangering the state),39 section 91(1) StGB (Encouraging the commission of a serious violent offence endangering the state), section 2 of the Terrorism Act 2006 (TA 2006; the dissemination of terrorist publications), and Article 575 CP (being trained in military skills, including self-training, possessing documents or accessing websites which are suitable to induce others to commit terrorist offences, travelling to a foreign territory controlled by a terrorist organisation, in all cases with the purpose of the commission of terrorist offences). 36 See L Puente Rodríguez, ‘El nuevo delito de autoadoctrinamiento terrorista’ (2017) 8967 Diario La Ley 1 ff. 37 See M Cancio Meliá, ‘11/3 and 7/7 ten years on. Terrorismusstraftaten im spanischen Strafrecht’ (2015) 15 Zeitschrift für internationale Strafrechtsdogmatik 538 ff. 38 See A Galán Muñoz, ‘Leyes que matan ideas frente a las ideas que matan personas? Problemas de la nueva represión de los mecanismos de captación terrorista tras la reforma del Código Penal de la LO 2/2015’ (2016) 15 Revista de Derecho Penal y Criminología 95 ff, 100 ff. 39 Official translation by M Bohlander for the Bundesministerium der Justiz und für Verbraucherschutz: www.gesetze-im-internet.de/englisch_stgb. For all the following verbatim quotes of German offences, the official translation is used.

The Limits of Terrorist Speech Offences  159 Section 91(1) no 1 of the StGB criminalises a person who displays or supplies written material which, by its content, is capable of serving as an instruction to the commission of a serious violent offence endangering the state, if the circumstances of its dissemination are conducive to triggering or encouraging the preparedness of others to commit such an offence. The written material can also include any virtual data, such as links to a document or videos, because the main objective is to target instructions disseminated through the internet on how to plan a terrorist attack, build explosive devices etc. As such, the provision clarifies that it only covers ­material that is suited to serve as instruction for the commission of serious offences.40 General messages glorifying or justifying terrorist acts do not suffice. Additionally (and unlike the UK provisions), the dissemination must be conducive to triggering or encouraging the preparedness of others to commit such an offence.41 An example would be a manual on how to construct a home-made bomb if placed in a specific context such as a radical Islamic forum. Section 89b StGB goes even further in targeting a mere act of communication. It criminalises the establishment of contacts with the intention of receiving ­instructions for the purpose of the commission of a serious violent offence endangering the state.42 Section 89b StGB considerably expands German criminal law since purely neutral acts of communication become punishable by up to three  years’ imprisonment. There may exist a connection to a terrorist organisation because one of its members has to be the respondent of the relevant communication, but that alone should not be enough. The criminalised behaviour in itself needs to constitute a wrong to which the legislature can legitimately react through ­criminalisation. While contact with a terrorist organisation may represent a first  step towards radicalisation, there remain countless other steps before the person seeking contact comes close to threatening a legal interest or committing any harmful conduct. The only suggestion of a wrong is in the, subjective, mens rea requirement that there be ‘the intention of receiving instruction for the purpose of the commission of a serious violent offence endangering the state’ meaning that section 89b is really close to being a crime-in-thought only. Furthermore, the connection to harmful conduct is not very strong as the purpose of the contact does not have to be the actual commission of a terrorist crime, but only attending terrorist training. Section 2 of the TA 2006, on the dissemination of terrorist publications, criminalises the (secondary) dissemination of terrorist publications with intent or with recklessness as to direct or indirect encouragement of acts of terrorism. Noteworthy in this context are several elements of the provision that highlight its wide scope: the offences can be committed not only intentionally but also ­recklessly43 40 s 91(1) no 1 StGB. 41 This prerequisite corresponds with the ‘likelihood of harm’ requirement contained in the international framework but chooses a different wording. 42 Though there will be no offence if the act exclusively serves the fulfilment of lawful professional or official duties: s 89b(2). 43 See TA 2006, ss 1(2)(b)(ii) and 2(1)(c).

160  Anneke Petzsche and Manuel Cancio Meliá and there is no express requirement that there be any danger that anyone will actually be encouraged by the publication or dissemination. It is also problematic that the offence does not only apply to actions that could assist or encourage terrorism, but also to certain conduct preparatory to such acts. In particular, not only actual dissemination of terrorist publications is covered, but also offering them for sale, hosting them on the internet, and even possessing them ‘with a view to’ their dissemination.44 Thus, the provision has been widely criticised45 and, together with section 1 TA 2006, they pose a risk of limiting the sharing and discussion of ethical, political and religious views and ideas. An especially problematic example is Article 575(2) of the CP that, since 2015, criminalises a person who ‘habitually accesses one or more communication services accessible to the public online … whose contents are directed at or are appropriate for inciting to joining a terrorist organisation or group or to collaborate with any of them or with the purposes thereof ’, or possesses documents which possess these qualities. Though as a mens rea element the purpose of ­‘becoming skilled in carrying out any of the criminal offences defined in this Chapter [= terrorist offences]’ is required, in principle, this section criminalises the mere accessing of jihadist and extremist websites if it happens habitually. The penalty provided for this conduct (imprisonment of two to five years) is incomprehensibly the same as for other individual acts of preparation which are more clearly linked to terrorist violence, such as obtaining military or combat skills or learning to build an explosive device.46 From the point of view of constitutional principles, there is no doubt that several core principles of Spanish criminal law (harm principle, proportionality, act requirement, culpability principle) are completely swept away by this new offence.47 Furthermore, another disturbing element is the role played in the prosecution of these cases by the so-called ‘expert report’ by police officers in court: the police specialists provide almost the sole evidence regarding the issue of whether the defendant possessed the relevant mens rea. This intention is habitually inferred departing from the most common radicalisation models in social sciences48 – as if this was mechanics, and not social life and individual life stories, which makes a prediction of the shift from thought to action nearly impossible. It is evident that this creates a conflict with the presumption of innocence.49 44 ibid s 2(2). 45 A Hunt, ‘Criminal Prohibitions on Direct and Indirect Encouragement of Terrorism’ [2007] Criminal Law Review 441; T Choudhury, ‘The Terrorism Act 2006: Discouraging Terrorism’ in I Hare and J Weinstein (eds), Extreme Speech and Democracy (Oxford, Oxford University Press, 2009) 463; Walker, Blackstone’s Guide to the Anti-Terrorism Legislation (n 12) 76 et seq; Petzsche, Strafrecht und Terrorismusbekämpfung (n 9) 259 ff. 46 Art 575(2) CP. 47 See J Terradillos Basoco, ‘Terrorismo yihadista y política criminal del siglo XXI’ (2016) 87 Nuevo For Penal 18 ff, 43 ff; Puente Rodríguez (n 36) 1 ff. 48 See, eg, CJS Picart ‘“Jihad Cool/Jihad Chic”: The Roles of the Internet and Imagined Relations in the Self-Radicalization of Colleen LaRose (Jihad Jane)’ (2015) 5 Societies 354 ff, 358 ff. 49 ML Cuerda Arnau, ‘Delitos de terrorismo’ in JL González Cussac et al (eds), Derecho Penal, Parte Especial, 5th edn (València, Tirant lo Blanch, 2016) 771 f.

The Limits of Terrorist Speech Offences  161

C.  Acts of Glorification or Apology The last category of terrorist speech offences that we examine are those that criminalise glorification or apology of terrorism. While the German criminal code does not contain such a provision,50 both the UK and Spain specifically criminalise it. The UK provision provides an example of a wide approach. Section 1 of the TA 2006, on the encouragement of terrorism, contains as the actus reus the publication 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.51

In section 1(3) of the TA 2006 it is clarified that such statements include the ­glorification of the commission or preparation of such acts or offences. The mens rea requirement demands that the publisher of the statement intends members of the public to be directly or indirectly encouraged or otherwise induced by the statement to commit, prepare or instigate acts of terrorism or Convention offences; or is reckless as to whether members of the public will be directly or indirectly encouraged or otherwise induced by the statement to commit, prepare or instigate such acts or offence.

Section 1 of the TA 2006 which, inter alia, describes glorification as including ‘any form of praise or celebration’,52 has been notably criticised on the grounds of uncertainty and vagueness.53 Concerns have also been raised as to the chilling effect that such offences can have on free speech.54 Additionally, such an offence might create tensions with the proportionality principle, as a glorification offence with its wide scope and interpretative difficulties could be seen as an interference that goes beyond the extent strictly required to meet its purpose. Article 578 of the CP criminalises public praise or justification of the criminal offences comprised in Article 572 to 577 or of those who have participated in the perpetration thereof or the perpetration of deeds that involve discredit, disdain or humiliation of the victims of terrorist criminal offences or the relatives thereof.

50 On how direct and indirect incitement to terrorist acts is penalised in German law see Petzsche, ‘The Penalization of Public Provocation’ (n 8) 248 ff; though, since the new EU Terrorism Directive now explicitly names ‘glorification’ in Art 5 of the EU Directive, it remains to be seen whether the parsimonious German approach – in comparison to UK and Spanish law – will be deemed to be sufficient to fulfil the obligations. 51 These specified offences are listed in the TA 2006, sch 1. 52 TA 2006, s 20(2). 53 Hunt (n 45) 441 ff. 54 ibid; Choudhury (n 45) 463 ff; Walker, Blackstone’s Guide to the Anti-Terrorism Legislation (n 12) 76 f.

162  Anneke Petzsche and Manuel Cancio Meliá Two distinct phases in the case law can be identified: the offence was originally (in 2000) designed to tackle the staging of a ‘popular movement’ by the Basque terrorist organisation Euskadi ta Askatasuna (ETA) and their political arm (homages of various kinds to ‘Basque soldiers’ – ie, members of ETA).55 Since the end of ETA’s armed activities in 2011, the offence is being used to prosecute public discourse (ie, Facebook posts, Twitter communications, rap music lyrics) that possibly justify in some way terrorist acts of the past and refer to (terrorist) organisations that no longer exist.56 In a very extreme interpretation of the requirements of the legal texts, in some case law (the Criminal Chamber of the Spanish Supreme Court is divided on this issue)57 the courts even waived58 the requirement of an element of some possible future relevance of the communicative act (such as the creation of danger of terrorist violence or at least of a ‘climate’ which could suit future terrorist activities). For instance, in 2017 there were convictions for disseminating jokes about the murder by ETA of Admiral Carrero Blanco, the Prime Minister of the government of the military dictatorship under General Franco in 1973.59 There even exists case law that considers it not to be necessary that the disseminator of this communication (for instance, by a mere re-tweet of such a joke on Twitter) personally endorses the activity of the terrorist group.60 It seems clear that the use of this offence by the Spanish prosecution service and courts is no longer related to terrorism, but intends to control certain ‘radical’ or ‘anti-system’ political views by targeting inopportune speech.61

D. Critique Two especially problematic aspects provided for in these examples of the criminalisation of terrorist speech warrant further examination. First, it has to be taken into account that one step beyond the standard of criminalising certain forms of (active) acts of communication, the passive side of this process exists, that is, the possibility of considering that certain forms of receiving communication have to be included in the relevant crimes. In this direction, both UK and ­Spanish law criminalise conduct that consists of possessing certain items of terrorist 55 See Cancio Meliá, Los delitos de terrorismo (n 4) 271 ff. 56 See J Mira Benavent, ‘Algunas consideraciones político-criminales sobre la función de los delitos de enaltecimiento del terrorismo y humillación a las víctimas del terrorismo’ in G Portilla Contreras et al (eds), Terrorismo y contraterrorismo en el siglo XXI. Un análisis político criminal (Salamanca, Ratio Legis, 2016) 113 ff, and recently the Supreme Court rulings (Sentencias del Tribunal Supremo) no 79/2018, conviction for rap music lyrics calling for violence (and offending the king) and 95/2018, acquittal after first instance conviction for jokes relating to victims of terrorist acts, considering them mere bad taste. 57 Compare, eg, the Tribunal Supremo’s rulings 4/2017 and 378/2017. 58 This approach goes against the approach adopted by EU Directive 2017/541. 59 Ruling of the National Court (Audiencia Nacional) – Criminal Chamber (4th section) 514/2017. 60 Tribunal Supremo ruling 3807/2017. 61 Mira Benavent, ‘Algunas consideraciones político-criminales’ (n 56) 103 ff, 107 ff.

The Limits of Terrorist Speech Offences  163 c­ ommunication material or propaganda (known in Spain by the very unsuitable term ‘passive indoctrination’ – though it is obvious that there needs to be an active conduct of seeking certain information and skills). In Spain even ‘habitual access’ to such materials on the internet constitutes a crime. These offences – as the actus reus is very proximate to everyday behaviour or ‘neutral acts’, as they are often named in German or Spanish legal scholarship62 – need a very narrow mens rea element, to transform reading or possessing written or other material into relevant criminal conduct constituting a criminal offence. This mens rea ‘overload’ opens a wide window into the area of possible proof and circumstantial evidence of this specific intention extrapolated merely from personal characteristics (is the possible suspect a Muslim? Does she have contact with certain forms of religious beliefs? Has she a certain national or ethnic origin?) This stresses the problematic aspects of such wide-scoped speech offences leading to an understanding of criminal law that eludes the act requirement that is essential to Western understanding of a citizen’s sphere of privacy. This kind of legislation is threatening to create an enemy criminal law and enforcement: a legal sector in which penal sanctions have increased considerably and the due process status of the defendant has been drastically diminished.63 Second, terrorist speech offences potentially and in practice often cover a wider range of conduct ranging from posting terrorist propaganda videos online to providing (or obtaining) specific instruction on how to plan and execute a terrorist attack via mail, chat or other communicative means. The risk that is addressed by such offences is evident, if the communication in its terrorist purpose is clear (for example, learning or instructing how to build a bomb or to mix a chemical weapon). But in addition, they potentially cover the legitimate voicing of an opinion such as expressing sympathy or support for a certain organisation that is deemed to be terrorist. Thus, severe difficulties arise in explaining what the rationale of this further step in criminalisation is: are we still in the field of (very far-reaching) risk prevention? Is this still the realm of ‘preventive justice’?64 62 See G Jakobs, Strafrecht Allgemeiner Teil 2nd edn (Berlin, De Gruyter, 1991); C Roxin, Strafrecht Allgemeiner Teil volumen I, 4th edn (München, CH Beck, 2006) § 11/104; M Cancio Meliá, Líneas básicas de la teoría de la imputación objetiva (Mendoza, Cuyo, 2001) 79 ff. 63 In the continental context (in Europe and Latin America), prominence has been gained by the notion of an ‘enemy criminal law’ as a particular sector in the general evolution of criminal law expansions (see, eg, G Jakobs, ‘Bürgerstrafrecht und Feindstrafrecht’ [2004] Onlinezeitschrift für Höchstrichterliche Rechtsprechung zum Strafrecht 3). In Jakobs’ view, many of the now existing terrorism offences are materially incompatible with the basic elements of the rule of law. Therefore, in his opinion, it is necessary to separate clearly the ordinary ‘citizen criminal law’ from this ‘combat zone’ – to avoid contamination, to preserve the rule of law for the citizen criminal law – in which the goal of criminal law is no longer punishment, but prevention. This position has provoked a very intense and sometimes emotional debate in the whole continental scholarship. For space reasons, we do not expand on this debate here; for further discussion see, eg, M Cancio Meliá, ‘De nuevo: “Derecho penal” del enemigo?’ in M Cancio Meliá and G Jakobs (eds), Derecho Penal del enemigo, 2nd edn (Madrid, Civitas, 2006) 85; Roxin (n 51) vol I § 2/126; M Cancio Meliá, ‘Terrorism and Criminal Law: The Dream of Prevention, the Nightmare of Rule of Law’ (2011) 14 New Criminal Law Review 108, 111 ff. 64 See A Ashworth and L Zedner, Preventive Justice (Oxford, Oxford University Press, 2014); T Tulich et al, Regulating Preventive Justice: Principle, Policy and Paradox (Abingdon, Routledge, 2017).

164  Anneke Petzsche and Manuel Cancio Meliá Or is this something else? Even accepting the paradigm of ‘nipping the danger in the bud’ – which would mean that we are dealing not with punishment, but with a sort of preventive detention – the justification of punishment as a means of incapacitation and risk prevention does not actually seem to work. An intervention at very early stages does not really further prevention, because in different offences of communication the provided penalty (three or five years for offences of glorification or self-indoctrination in the Spanish CP, for instance), while being very harsh considering the relevant conduct, is not really able to permanently incapacitate the perpetrator. Thus, we must question whether terrorist speech offences are simply expressing horror, abomination or stating a taboo regarding the monstrous thoughts and feelings of terrorists or possible future terrorists. The examples discussed above demonstrate how wide ranging and problematic the criminalisation of terrorist speech has become and how tenuous the link is to the actual perpetration of a terrorist attack. Certain accompanying problems are pervasive in all three of the examined countries like the broadening of the scope of criminal law, a criminalisation of neutral acts and consequently the risk of a chilling effect for freedom of speech. Thus, to identify genuinely criminal behaviour is of paramount importance.

III.  Distinguishing Speaking of Terrorism and Terrorist Speech The categories of offence discussed above demonstrate that, in all three jurisdictions, the legislator struggles with creating terrorist speech offences that only cover legitimately punishable behaviour. Due to the fact that the criminalised acts are set in the preliminary stages of a terrorist attack, and therefore chronologically and locally distant from the actual terrorist act, it is difficult to formulate an offence that really only covers legitimately punishable behaviour. National legislators have tried to address this problem through different designs. While all offences contain fairly broad actus reus requirements, legislators choose to either use a legal restriction of the actus reus element, the mens rea element or a defence in order to limit the broad scope of the terrorist speech offences. For example, section 91(2) of the StGB states that it shall not apply if 1. the act serves the purpose of citizenship education, the defence against anti-constitutional movements, arts and sciences, research or teaching, reporting about current or historical events or similar purposes or 2. if the act exclusively serves the fulfilment of lawful professional or official duties.

Section 89b of the StGB demands that the perpetrator acts ‘with the intention of receiving instruction for the purpose of the commission of a serious violent offence endangering the state’ and Article 575 of the CP demands that she acts ‘with the purpose of becoming skilled in carrying out any of the criminal offences

The Limits of Terrorist Speech Offences  165 defined in this Chapter [on terrorist organisations and groups and on criminal offences of terrorism]’. According to section 1(6) of the TA 2006 it is a defence … to show (a) that the statement neither expressed his views nor had his endorsement (whether by virtue of section 3 or otherwise); and (b) that it was clear, in all the circumstances of the statement’s publication, that it did not express his views and … did not have his endorsement.

In addition, as shown by the German example of section 129a(5) of the StGB, attempts have been made by the courts to more narrowly construe these broadscoped preparatory offences.65 That notwithstanding, their broad wording means that these terrorist speech offences still comprise myriad acts, including acts of legitimate communication. They therefore criminalise acts without harm or even potential harm. Consequently, it is important to develop criteria that can guide legislators to distinguish ‘mere’ inopportune or hateful speech from a legitimate terrorist speech offence. In our opinion, what is needed is a strong nexus to the actual terrorist offence/act. Only through a strong causal nexus to a terrorist act should mere acts of communication be legitimately criminalised. Such a causal nexus needs to be clearly defined. To map out the content of this nexus, one can draw on a landmark judgment of the United States Supreme Court on free speech: Brandenburg v Ohio.66 This case offers clear criteria to draw the line between extremist speech and criminal incitement; the Court found that a state could not ‘forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action’.67 This ‘clear and present danger’ test combines the requirements of imminence and likelihood which, if taken seriously and transferred to terrorist speech offences, provides for the establishment of a strong causal nexus. This raises the bar when compared with the ‘soft’ requirement of the EU Directive. For example, the Directive states: Such conduct should be punishable when it causes a danger that terrorist acts may be committed. In each concrete case, when considering whether such a danger is caused, the specific circumstances of the case should be taken into account, such as the author and the addressee of the message, as well as the context in which the act is committed. The significance and the credible nature of the danger should be also considered when applying the provision on public provocation in accordance with national law.68

65 BGH 3 StR 243/13, BGHSt 59, 218; BGH 3 StR 326/16, NJW 2017, 2928; A Petzsche, ‘Zur Verfassungsmäßigkeit von Vorfelddelikten bei der Terrorbekämpfung’ (2015) 16 Onlinezeitschrift für Höchstrichterliche Rechtsprechung zum Strafrecht 33 ff. 66 Brandenburg v Ohio 395 US 444 (1969). 67 ibid para 6; see generally, R Dworkin ‘The Coming Battles of Free Speech’ (1992) New York Review of Books 190; Barendt (n 14) 895, 897; B Saul, ‘Speaking of Terror: Criminalising Incitement of Violence’ (2005) 28 UNSW Law Journal 868, 884. 68 EU Directive, para 10.

166  Anneke Petzsche and Manuel Cancio Meliá

IV. Outlook Legislators in Germany, Spain and the UK have created broad-scoped terrorist speech offences that criminalise a wide range of communicative acts. These offences risk blending and confounding categories of terrorist speech (ie, the legitimately punishable terrorist act) with speaking of terrorism (ie, the ‘mere’ voicing of difficult-to-bear opinions), more often than not failing in the face of that challenge. Consequently, there are certain pervasive problems accompanying these offences, including broadening the scope of criminal law, criminalising neutral acts and the risk of a chilling effect for freedom of speech. Thus, it is of paramount importance that these offences are confined to genuinely criminal behaviour. With regard to precursor crimes, we have previously called for a higher standard of justification that goes beyond the reflex of referring to amorphous dangerousness and risk.69 In the context of terrorist speech, we argue that a legitimate terrorist speech offence needs a strong causal nexus to a terrorist act. The ‘clear and present danger’ test developed by the United States Supreme Court in Brandenburg v Ohio can be drawn upon to help map out this nexus. To return to this legitimately punishable core by legislative action or judicial interpretation should be the primary goal in democratic societies governed by the rule of law, not least because freedom of expression is a fragile and important right that needs guarding. Furthermore, national legislators should resist going even further in criminalising speech. However, given that Article 5 of the new EU Directive on combating terrorism explicitly demands the criminalisation of ‘glorification’,70 there exists a real risk that the broadening of the scope of criminal law in the area of terrorist speech offences will not stop here.

69 Cancio Meliá and Petzsche, ‘Precursor Crimes of Terrorism’ (n 11) 194, 205. 70 Though the Directive also requires a danger that terrorist acts may be committed, this has already been abolished/ignored in the Spanish implementation. The Directive shows the pervading emphasis on the communicative side of terrorism, of terrorist propaganda and its dissemination channels. While in substantive criminal law the focus lies on public provocation to commit a terrorist offence (which is broader than before as ‘glorification’ is now named explicitly in Art 5 EU Directive), the Directive also contains specific measures aimed at the prompt removal of online content or blocking of access for which it will be interesting to see if and how they will be implemented.

11 All-Risks Counter-Terrorist Policing genevieve lennon Introduction Since his early work, Clive Walker has recognised the key role of not only ­criminalisation but also ‘control’ in relation to countering terrorism.1 Despite the oft-repeated mantra of the primacy of prosecution, it is control that dominates contemporary counter-terrorist strategies such as CONTEST.2 A constant theme through Walker’s writing has been the insistence that counter-terrorist laws, while sometimes justifiably exceptional, must adhere to constitutionalism.3 He is one of the very few scholars who has comprehensively analysed every aspect of UK counter-terrorist law. This expansive range of enquiry has led him to analyse the workings and limitations of all UK counter-terrorist policing powers.4 This chapter aims to draw together these three elements – policing, control and ­constitutionalism – by examining Walker’s concept of all-risks policing powers.5 In counter-terrorist policing, intelligence-based measures are the pre-eminent, and preferred, approach. But, as Walker notes, ‘when intelligence is not sufficiently precise to pick out foe from friend, then ever more pervasive tactics must be adopted’.6 All-risks powers are an example of such tactics. The starting point for all-risks policing was the advent of ‘neighbour terrorism’: the threat is no longer from some exotic other who is clearly and easily distinguishable from ourselves.7 1 C Walker, The Prevention of Terrorism in British Law (Manchester, Manchester University Press, 1986) 8–9. 2 Home Office, CONTEST: The United Kingdom’s Strategy for Countering Terrorism (Cm 8123, 2011); C Walker, ‘Keeping Control of Terrorists Without Losing Control of Constitutionalism’ (2007) 59 Stanford Law Review 1395, 1400–01. 3 See ch 18 (Walker) in this collection, and, eg, C Walker, Terrorism and the Law (Oxford, Oxford University Press, 2011). 4 Walker, Terrorism and the Law (n 3); C Walker, Blackstone’s Guide to the Anti-Terrorism Legislation, 3rd edn (Oxford, Oxford University Press, 2014); Walker, The Prevention of Terrorism in British Law (n 1). 5 C Walker ‘“Know Thine Enemy as Thyself ”: Discerning Friend from Foe Under Anti-Terrorism Laws’ (2008) 32 Melbourne Law Review 275. 6 ibid 277. 7 Walker ‘Know Thine Enemy’ (n 5). See also ch 5 (Hardy and Williams) in this collection.

168  Genevieve Lennon It is not Bin Laden in a cave in Tora Bora. It is the local lads who you have seen around, chatting on the streets. It is your neighbour. Walker dates ‘neighbour terrorism’ to the mid-2000s, giving the 7/7 London bombings as an example, although he notes the earlier examples of Richard Reid, the ‘shoe bomber’, in 2001 and Ahmad Omar Saeed Sheikh, who murdered Daniel Pearl in 2002.8 Two important consequences flow from this designation. First, when faced with neighbour terrorism, everyone is deemed risky until proven otherwise. Indeed, ‘we are increasingly unsure of how to typecast our enemies, and the embedded nature of the terrorism risk seems to demand the treatment of one’s neighbour as potentially friend and foe’.9 These powers clearly speak to control rather than criminalisation. They are precautionary and aim to respond to anticipatory risks by means of disruption, deterrence and early detection.10 While it is possible to conceive of counter-terrorist measures that everyone, everywhere is subjected to – the mass data gathering that occurred under Tempora11 comes close – it is impractical if not impossible for policing to occur in such an all-encompassing manner. This leads to the second consequence, whereby the response to this pervasive risk is refined by turning the risk calculus on its head. Usually in criminal justice the risk attaches to the person who must, through their actions or exceptionally their inactions, have done something criminal or suspicious to trigger police action. In the context of stop and search, Lord Bingham noted that: It is an old and cherished tradition of our country that everyone should be free to go about their business in the streets of the land, confident that they will not be stopped and searched by the police unless reasonably suspected of having committed a criminal offence. So jealously has this tradition been guarded that it has almost become a constitutional principle.12

With all-risks policing ‘the risk calculation shifts from persons to actions and objects’.13 If you carry out certain actions or are in a particular place you will be deemed risky – and potentially subject to police powers – until proven otherwise. This chapter will first examine the costs associated with all-risks policing powers measures and Walker’s proposals for containment. It then analyses current practice in the UK, US and France, concluding by considering the possible trajectory of counter-terrorist all-risks policing.

8 C Walker, ‘Neighbor Terrorism and the All-Risks Policing of Terrorism’ (2009) Journal of National Security Law & Policy 121, 124. 9 Walker, ‘Know Thine Enemy’ (n 5) 276. 10 Walker, ‘Keeping Control of Terrorists’ (n 2). 11 See, eg, Ewen MacAskill et al, ‘GCHQ taps fibre-optic cables for secret access to world’s communications’ The Guardian (21 June 2013); D Bigo et al, National Programmes for Mass Surveillance of Personal Data in EU Member States and their Compatibility with EU Law (European Parliament, 2013). 12 R (Gillan) v Commissioner of Police of the Metropolis [2006] UKHL 12, [1] (Gillan (HL)). 13 Walker, ‘Know Thine Enemy’ (n 5) 277.

All-Risks Counter-Terrorist Policing  169

I.  The Costs of All-Risks Policing There are two paradigms of all-risks policing: universal and refined. Universal all-risks measures are applied to everyone who is in the designated area or undertaking the designated actions. An example is airport security whereby anyone who wishes to get airside must submit to the same security procedures – having their hand luggage screened; removing one’s belt and sometimes shoes; taking liquids and large electronics out of hand luggage for separate screening etc. By contrast, the Terrorism Act 2000 (TA 2000), schedule 7 shows the refined approach. Schedule 7 permits an examining officer to stop, search, question and detain any person at UK ports or the border area in Northern Ireland to determine whether that person appears to be or have been involved in the commission, preparation or instigation of terrorism.14 There is no requirement of suspicion, thus the powers may be used against anyone, but only a minute number – around 0.02 per cent of passengers at air and ferry ports and international rail terminals – are in fact subjected to the powers.15 A number of costs are common to both paradigms. First, an acceptance of increased false positives becomes embedded. This is an inevitable consequence of deploying powers without actionable intelligence or suspicion towards the subject. Second, there is an impact on human rights, notably the right to a private life as protected under the European Convention on Human Rights (ECHR), Article 8. Depending on the power and its deployment, the rights to liberty, a fair trial, freedom of expression, freedom of assembly and the prohibition on discrimination may also be engaged. Third, when applied in non-border situations, the areas chosen for these heightened security measures can lead to what Coafee terms ‘splintered urbanism’ whereby ‘rings of security’ or ‘confidence’ morph into ‘rings of exclusions’.16 There is an inevitable rural/urban divide as risk is translated into impact and numbers of potential casualties. There may also be financial consequences if non-designated events end up paying a premium for private security which, depending on the event, may be freely provided by the public police were it designated. Fourth, there is a societal cost through increased securitisation as a normal part of everyday life. The degree and acceptability of these costs are integrally linked to the effectiveness of the measures. A limited infringement into the right to a private life would be justifiable if it is rationally linked to the object of reducing crime or disorder or addressing national security concerns (and, of course, is necessary and proportionate). The question of effectiveness, (discussed in more detail in relation to the specific powers outlined below) raises questions regarding the putative

14 The power is also applicable at St Pancras in respect of passengers travelling on the Eurostar. 15 D Anderson, The Terrorism Acts in 2013 (London, The Stationery Office, 2014) 7.6. 16 J Coafee, ‘Rings of Steel, Rings of Concrete and Rings of Confidence’ (2014) 1 International Journal of Urban and Regional Research 201.

170  Genevieve Lennon objectives of these powers. Do they aim to detect would-be terrorists? To deter them? To gather intelligence? Are they primarily methods of public reassurance? The objectives are important not only so that the effectiveness of the measures can be assessed but also because not all the objectives would satisfy the criteria of Article 8(2). While the above costs are common to both universal and refined all-risks measures, there are additional costs specific to refined all-risks measures; these costs will vary depending on the implementation of the measure. While nominally neutral on its face, the application of all-risks ‘suspicionless’ stop and search powers in the UK demonstrate the police relying on broad characteristics in an attempt to narrow the field, with ‘Black’ or ‘Asian’ persons between five and seven times more likely to be stopped than ‘White’ persons under the TA 2000, section 44.17 It was notable that both the House of Lords and the European Court of Human Rights in Gillan commented on the potentially discriminatory application of the TA 2000, section 44 despite it not being raised on the facts.18 This disproportionate application is a predictable consequence of measures applicable in the absence of reasonable suspicion against the subject. Having narrowed the field by reference to the designated location or action(s), the only criteria remaining to ­differentiate between the subjects are such generalised characteristics. As Walker warned, ‘if terrorists can be both neighbours and aliens, those [refining] characteristics must be drawn in very wide terms, including age, gender and race’.19 These carry obvious costs. Action triggered on the basis of such group characteristics risks infringing the prohibition on discrimination under the ECHR Article 14, as well as domestic legislation such as (in the UK) the Equality Act 2000. Of course, disproportionality does not necessarily equate to discrimination; as Anderson emphasised in relation to the TA 2000, schedule 7, if powers are exercised in relation to the terrorist threat then their deployment should be proportionate to the terrorist population rather than the general one.20 However, such parsing of the crowds, even if not exercised in a discriminatory manner, may lead to a perception of discrimination among the targeted communities, potentially reducing their willingness to cooperate with the police, thereby stemming vital intelligence, and even acting as a recruiting tool or appearing to justify terrorist propaganda.21 17 Liberty, ‘Section 44 Terrorism Act’, available at: www.liberty-human-rights.org.uk/human-rights/ justice-and-fair-trials/stop-and-search/section-44-terrorism-act. See further, Ministry of Justice (MOJ), ‘Statistics on Race and the Criminal Justice System – 2006’ (MOJ, London, 2007); MOJ, ‘Statistics on Race and the Criminal Justice System – -2006/07’ (MOJ, London, 2008); MOJ, ‘Statistics on Race and the Criminal Justice System – 2007/08’ (MOJ, London, 2009). 18 See Gillan (HL) (n 12) and Gillan v United Kingdom (2010) 50 EHRR 45 App no 22978/05 (Gillan (ECtHR)). 19 Walker, ‘Know Thine Enemy’ (n 5) 294. 20 Anderson, The Terrorism Acts in 2013 (n 15) 7.7–7.15. 21 ibid 7.15. See also L Donohue, The Cost of Counter-Terrorism (Cambridge, Cambridge University Press, 2008) 117–22; B Harcourt, Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age (London, University of Chicago Press, 2007); American Civil Liberties Union (ACLU), ‘Sanctioned Bias: Racial Profiling Since 9/11’ (New York, ACLU, 2004).

All-Risks Counter-Terrorist Policing  171 Moreover, as Walker warns, ‘choice will be based on professional or sectarian cultures as much as rational choice and may well mask unpalatable or unlawful considerations’.22 If biases or cultures do inform individual officers’ actions, there is a risk that they may overlook more pertinent factors. Some police forces have attempted to address the tendency to rely upon such group characteristics by using behavioural assessment programmes, which aim to train officers to ‘identify suspects through indicators such as behaviours, body language, expressions and signs of deception’.23 For example, the British Transport Police developed the Behavioural Assessment Screening System (BASS)24 while in the US the Transportation Security Administration (TSA) has spent around $250  million a year on its behavioural detection programme, Screening of Passengers by Observation Techniques (SPOT).25 However, such programmes have been criticised. For example, SPOT has been excoriated by the American Civil Liberties Union for being unscientific, unreliable and for undermining civil liberties, in particular by encouraging racist and religious bias.26

II.  The Containment of All-Risks Policing Having recognised the costs associated with all-risks policing and accepted that such measures have a place – albeit heavily curtailed – in the counter-terrorist toolkit, Walker proposed five ways to contain the measures.27 First, link all-risks measures to vulnerable targets. Such geographical refinement should ease the costs that flow from the (almost inevitable) refinement in relation to the selection process itself, presuming these are refined and not universal measures. Second, put powers on a statutory footing. This should include details on profiling if that is a factor in the selection process, explaining how it operates and what weight is to be given to it. Third, there should be accountability, including public statistics of use and official explanation thereof, which should include local communities. Fourth, there should be greater community involvement in the deployment of such powers. Fifth, in keeping with Walker’s consistent thread of democratic oversight of extraordinary powers, the measures should be kept under review by the legislature. 22 Walker, ‘Know Thine Enemy’ (n 5) 298. 23 Home Affairs Committee, Seventh Report (2007-08, HL 364-II); Appendix 28, ‘Memorandum submitted by the British Transport Police’. 24 BTP, Embracing Equality, Improving Confidence (London, BTP, 2007). 25 Transit Cooperative Research Program, ‘Public Transportation Passenger Security Inspections: A Guide for Policy Decision Makers’ (Washington DC, Transportation Research Board, 2007). 26 ACLU, Bad trip: Debunking the TSA’s ‘Behavior Detection’ Program (New York, ACLU, 2017). See also A Ritchie and J Mogul, ‘In the Shadows of the War on Terror: Persistent Police Brutality and Abuse of People of Color in the United States’ (2008) 1 De Paul Journal for Social Justice 175; cf EU Agency for Fundamental Rights, ‘Towards More Effective Policing: Understanding and Prevention Discriminatory Ethnic Profiling: A Guide’ (EU, Luxembourg, 2010) 59 (discussing BASS). 27 Walker, ‘Neighbor terrorism’ (n 8) part VI.

172  Genevieve Lennon There has been important judicial containment since Walker’s initial writings on the subject, notably the European Court of Human Rights (ECtHR) case of Gillan v United Kingdom, concerning the TA 2000, section 44.28 The ECtHR ruled that the routine use of section 44 did engage the right to a private life under the ECHR Article 8. While the judgment criticised the power roundly, the most interesting aspect in terms of all-risks policing related to whether it was prescribed by law. This requires that the measure has a basis in law, is adequately accessible and foreseeable, and is sufficiently bounded to ensure it cannot be exercised in an arbitrary manner. In holding that it was not, the Court focused on the vague statutory drafting and the fact that neither the authorisation nor deployment were sufficiently bounded to ensure the power would not be exercised in an arbitrary manner.29 This strikes at the heart of all-risks policing as ambiguity in the statute is a necessary by-product of the absence of suspicion towards the subject. How can one precisely refine the selection process to guard against its arbitrary deployment when the objective is the flexibility to use it against anyone in a designated area? The authorisation process could be tightened up considerably – indeed, the ECtHR paid particular attention to the woefully low threshold of ‘expediency’ in triggering the power which it noted simply means ‘advantageous’.30 However, the logic of all-risks places a ceiling on how far the threshold can be raised. All-risks measures can be closely curtailed in geographical and temporal terms when triggered by intelligence and linked to a specific event or location. But it is less clear whether an authorisation in response to a generalised risk – for example, in relation to an iconic site or transportation hub – would suffice. Certainly, the UK government thought not, and such a deployment is explicitly excluded under the TA 2000, section 44’s replacement, section 47A (which is discussed below). However much of the deployment of all-risks powers address precisely such pervasive and nonspecific threats. Thus, Gillan appeared to place close constraints around all-risks as a counter-terrorist tool, seeming to relegate it to the position of ‘break glass only in case of serious (and intelligence-based) emergencies’ rather than the UK’s previous approach of ‘break glass if advantageous’.31 In the domestic courts, the House of Lords held that only searches involving personal correspondence or similar would engage Article 8.32 However, the ECtHR criticised the basic structure of the power, and determined that any stop and search would engage Article 8 thereby appearing to set a strong precedent that would significantly limit the deployment of all-risks measures.33 The UK government responded by repealing section 44 and replacing it with section 47A. I have suggested elsewhere that, depending on the practice, the current power may still



28 Gillan

(ECtHR) (n 18). [79]–[87]. 30 ibid [80]. 31 See ch 18 (Walker) in this collection. 32 See Gillan (HL) (n 12) [28]. 33 Gillan (ECtHR) (n 18) [63]–[64] and passim. 29 ibid

All-Risks Counter-Terrorist Policing  173 fall short of the ECtHR’s requirements.34 However, this long proved a moot point: the power was not authorised until late 2017 despite a number of high-profile and high-risk events (notably the Olympics in 2012 and Commonwealth Games in 2014), a threat level that has varied between ‘Severe’ and ‘Critical’,35 and nine terrorist attacks.36 (The use of section 47A is discussed in the next section.) Gillan thus appeared to herald the terminal decline of non-border all-risks policing, at least in the UK. However, in a number of subsequent cases the domestic courts have retreated from that high-water mark and failed to closely scrutinise the putative safeguards both in relation to analogous all-risks powers and in relation to police powers more generally. For example, in Beghal v DPP the Supreme Court held that the TA 2000, schedule 7 was not incompatible with the ECHR Article 8.37 The case concerned a French national who was detained, searched and questioned for an hour and 45 minutes and, having refused to answer most of the questions, charged with breaching her duty to comply with examining officers.38 The defendant maintained the power breached her rights to liberty (Article 5), a fair trial – specifically the prohibition on self-incrimination (Article 6) – and the right to a private life (Article 8). The majority (Lord Kerr dissenting) dismissed the appeal. While the outcome is disappointing, it is the approach of the Court in relation to the principle of legality – in other words, whether the power was prescribed by law – which is most concerning in relation to the containment of all-risks policing measures. In contrast to section 44, schedule 7 of the TA 2000 was seen as comparatively ‘good’ (or at least not hugely criticised) practice. This led the majority to overlook the fact that schedule 7 is far more broadly drawn than section 44 had been; the Court also failed to assess the adequacy of the safeguards.39 Thus, the Court noted that: the use of schedule 7 was declining; there was no evidence of its discriminatory use against Black and Asian persons; and the Independent Reviewer, generally, approved of the power and viewed it as effective.40 Lord Hughes also noted the ineffectiveness of the authorisation regime in relation to section 44,41

34 G Lennon, ‘Precautionary Tales: Suspicionless Counter-Terrorism Stop and Search’ (2015) 15 Criminology and Criminal Justice 44. 35 SEVERE means an attack is highly likely. CRITICAL means one is imminent. See also A Parker (DG MI5) ‘Director General Andrew Parker – 2017 Speech’ (17 October 2017), available at: www.mi5. gov.uk/news/director-general-andrew-parker-2017-speech. 36 Owen Bowcott, ‘UK terrorist attacks since 11 September 2001’ The Guardian, (22 March 2017); Dominic Casciani, ‘Parsons Green: What do the police do next?’ BBC News (16 September 2017). 37 Beghal v DPP [2015] UKSC 49. 38 As required by the Terrorism Act 2000, sch 7, para 18(1). 39 Beghal (n 37) [38]–[45] (Lord Hughes, with whom Lord Hodges agreed) and [79], [86]–[91] (Lord Neuberger and Lord Dyson). 40 Although note that while the Reviewers acknowledged the utility of the power, each consistently criticised aspects of the powers, with Anderson calling for a number of changes to the law. See, eg, A Carlile, The Terrorism Acts in 2009 (London, The Stationery Office, 2010) ch 5; Anderson, The Terrorism Acts in 2013 (n 15) ch 7; M Hill, The Terrorism Acts in 2016 (London, The Stationery Office, 2017) ch 5. 41 Beghal (n 37) [41].

174  Genevieve Lennon although the fact that there is no comparative safeguard (whether functioning or not) in ­relation to schedule 7 rather undermines this point. He then outlined the ‘safeguards’: [T]he restriction to those passing into and out of the country; (ii) the restriction to the statutory purpose; (iii) the restriction to specially trained and accredited police officers; (iv) the restrictions on the duration of questioning; (v) the restrictions on the type of search; (vi) the requirement to give explanatory notice to those questioned, including procedure for complaint; (vii) the requirement to permit consultation with a s­ olicitor and the notification of a third party; (viii) the requirement for records to be kept; (ix)  the availability of judicial review …; (x) the supervision of the Independent Reviewer.42

However, as Ip notes, several of these supposed safeguards ‘are safeguards only in the most attenuated sense’.43 Most applied equally – or indeed in a more restrictive context – to the TA 2000, section 44, all of which were rejected as insufficient by the ECtHR in Gillan.44 The only novel and substantive restriction discussed by the Court was that the TA 2000, schedule 7 applies exclusively at ports and borders. It is undoubtedly true, as the majority argued, that people passing through such areas have always been subject to additional restrictions and there is an expectation of such controls. However, the majority’s attempt to cast schedule 7 as a limited power on that basis is disingenuous.45 As Ip notes, approximately 245 million people pass through ports and borders annually.46 The majority also alleged that it is normal for travellers to be subject to such examinations.47 This assertion cannot stand with the majority’s other contention that the use of schedule 7 is statistically minute. The practice is either statistically minute or it is routine. It cannot be both. A final argument, articulated by Lord Neuberger and Lord Dyson, and based on the ECtHR’s comments in Gillan, was that air travellers could be seen as consenting to ‘the power of search exercised at airports’.48 While true, the ECtHR was discussing Lord Bingham’s comment about ‘an ordinary superficial search of the person and an opening of bags, of the kind to which passengers uncomplainingly submit at airports’.49 This refers to universal screening to get airside, not schedule 7 examinations, which include coercive questioning, searches which extend to personal data on electronic devices, and detention. These are not comparable measures except

42 ibid [43]. 43 J Ip, ‘The Legality of “Suspicionless” Stop and Search Powers under the European Convention on Human Rights’ (2017) 17 Human Rights Law Review 523, 535. 44 For a detailed discussion of the safeguards and their limitations see Ip (n 43). 45 Beghal (n 37) [18] (Lord Hughes) and [88], [89] (Lord Neuberger and Lord Dyson). 46 Ip (n 43) 536. 47 Beghal (n 37) [38]–[40], [43] (Lord Hughes, with whom Lord Hodges agreed) and [88], [89] (Lord Neuberger and Lord Dyson). 48 Beghal (n 37) [82] citing Gillan (ECtHR) (n 18) [64]. 49 Gillan (HL) (n 12) [28] (Lord Bingham), cited at Beghal (n 37) [19].

All-Risks Counter-Terrorist Policing  175 in the most superficial sense and the logic of implied consent is considerably more difficult to apply to schedule 7. These putative ‘safeguards’ are not sufficient to prevent the arbitrary exercise of the power, but this inadequacy appears to have been subsumed by the fact that the practice did not reveal such treatment. The logic seems to be that an exceptionally broad discretion will adhere to the principle of legality in reliance on the examining officer’s forbearance to use the power to the extent permitted by law. Lord Kerr (dissenting) is surely more convincing when he argues that ‘[a] power on which there are insufficient legal constraints does not become legal simply because those who may have resort to it, exercise self-restraint’.50 Lord Kerr’s dissent focused on how the TA 2000, schedule 7 was far more broadly drawn than the TA 2000, section 44, including its lack of any authorisation process, temporal or geographical limits, which led him to conclude that the power did not adhere to the principle of legality.51 A lack of intensive scrutiny regarding the exercise of police powers or discretion in non-counter-terrorist contexts is evident in other recent Supreme Court cases, for example, in Roberts v Commissioner of Police of the Metropolis,52 concerning non-counter-terrorism suspicionless stop and search, and Gaughran v Chief Constable of the Police Service of Northern Ireland,53 which is being appealed to the ECtHR and concerned the indefinite retention of biometric data following a non-custodial sentence. The ECtHR case of Colon v the Netherlands54 also seems to indicate some retreat from the intensive scrutiny evident in Gillan. For example, in Colon, which concerned a non-counter-terrorist suspicionless stop and search power similar to that in Roberts, we can see a lack of intensive scrutiny of safeguards. The case, however, was narrowly argued in relation to the necessity of judicial oversight.55 As far as counter-terrorist all-risks measures are concerned, Beghal appears to lower the bar set by Gillan. The benchmark seems to have slipped from a requirement that the power be sufficiently circumscribed to ensure it cannot be applied in an arbitrary manner, to instead requiring that it is not in fact so exercised (notwithstanding that this relies on the officer’s forbearance rather than legal safeguards). By focusing on the practice rather than the law, the Supreme Court has opened a back door to broadly drawn all-risks measures.

50 Beghal (n 37) [102]. 51 ibid [97]. 52 Roberts v Commissioner of Police of the Metropolis [2015] UKSC 79. 53 Gaughran v Chief Constable of the Police Service of Northern Ireland [2015] UKSC 29. Although note Lord Kerr’s dissent. cf T v Chief Constable of Greater Manchester Police [2014] UKSC 35 (concerning disclosure of criminal records) in which there was a more intensive scrutiny of safeguards. 54 Colon v the Netherlands App no 49458/06 (2012) 55 EHRR SE5. 55 See further, G Lennon, ‘Stop and Search Powers in UK Terrorism Investigations: A Limited Judicial Oversight?’ (2016) 20 International Journal of Human Rights 634.

176  Genevieve Lennon

III.  The Practice of All-Risks Policing This section will examine the practice of all-risks policing in the UK (expanding upon the discussion in the previous sections), the US and France, specifically considering whether Walker’s criteria for containment are adhered to in these jurisdictions.

A.  The UK Walker was primarily writing in response to the UK’s increasing reliance on all-risks counter-terrorist powers, both at ports and borders (TA 2000, Schedule 7) and in non-border situations (TA 2000, section 44). In 2007, when Walker first proposed the concept of all-risks policing, the use of section 44 had surged exponentially, with the total number of stops increasing from 42,834 in 2006/07 to 126,706 in 2007/08, peaking at 210,013 in 2008/09.56 Both powers consistently featured among the major grievances of Black and ethnic minority communities, in particular British Muslim and Asian communities, in relation to counterterrorist powers.57 Section 44 was aimed primarily at disruption and deterrence and intelligence gathering. Interestingly, the current power under the TA 2000, section 47A prohibits authorisation on the basis of deterrence, intelligence gathering or public reassurance.58 Schedule 7 also aims at disruption and deterrence and intelligence gathering, in addition to having utility in terms of evidence gathering and recruiting informants.59 Since this peak activity, many of Walker’s proposed methods of containment have been taken on board, prompted in no small part by Gillan. First, the requirement of a linkage to vulnerable targets. TA 2000, schedule 7 satisfies this criterion (leaving aside arguments that there could be greater refinement in relation to some airports). TA 2000, section 44 had no such requirement in statute nor in practice, as exemplified by the Metropolitan Police Service (MPS) rolling, force-wide

56 HC Deb 13 February 2013, vol 558 col 762W (Brokenshire). These figures exclude the second and third heaviest users – the British Transport Police (BTP), which stopped approximately 215,735 persons between 2005/06 and 2010/11, and the Police Service of Northern Ireland (PSNI), which stopped approximately 36,914 between 2007/08 and 2009/10 (Lennon, ‘Precautionary Tales’ (n 34) 49, 54). 57 See, eg, T Choudhury and H Fenwick, ‘The Impact of Counter-Terrorism Measures on Muslim Communities’ (2011) 25 International Review of Law, Computers & Technology 151, 166–67; Home Affairs Committee, Terrorism and Community Relations (HC 2004–05, 165-I) ch 6; Liberty, The Impact of Anti-Terrorism Powers on the British Muslim Population (London, Liberty, 2004); G Mythen, S Walklate and F Khan, ‘“I’m a Muslim, but I’m not a Terrorist”: Victimization, Risky Identities and the Performance of Safety’ (2009) 49 British Journal of Criminology 736. 58 Lennon, ‘Precautionary Tales’ (n 34). Home Office, Code of Practice (England, Wales and Scotland) for the authorisation and exercise of stop and search powers relating to section 47A of Schedule 6B to the Terrorism Act 2000 (London, Home Office, 2012) 3.1.6. 59 D Anderson, The Terrorism Acts in 2012 (London, The Stationery Office, 2013) 9.43–9.52.

All-Risks Counter-Terrorist Policing  177 authorisation that lasted for over eight years, although there was some improvement from mid-2009.60 The current power, TA 2000, section 47A, tightened the geographical linkage by requiring the area – and duration – of the authorisation be ‘no greater than is necessary to prevent’ an act of terrorism.61 It also explicitly contemplates the vulnerability or ‘high-risk’ nature of the location as a – although not the sole – factor in justifying an authorisation.62 Thus, despite some improvement, section 47A does not satisfy Walker’s first criterion. The second criterion is that the powers have a statutory base, which requires more than merely having a basis in law. While the UK powers always had such a basis, the breadth and vagueness of the TA 2000, section 44 was a key reason for the ECtHR’s conclusion that the power was not prescribed by law.63 The TA 2000, section 47A and its accompanying Code of Practice include additional detail and impose a higher threshold for triggering the authorisation, although the power remains, necessarily, broad. The TA 2000, schedule 7 has also undergone some legislative revision,64 following criticism by the Independent Reviewer, David Anderson,65 which prompted a public consultation.66 This revision reduced the maximum duration of examinations and detention and improved some safeguards. The discussion of a profile or selection criteria largely occurs in the negative, with an explicit prohibition in both Codes of Practice on relying on any protected characteristic as the basis for stop and search and a reminder that ‘a terrorist can come from any background; there is no profile for what a terrorist looks like’.67 However, as Lord Kerr noted in Beghal, the prohibition is against relying solely on such criteria for selection, thus contemplating such ‘that ethnic origin or religious adherence can be at least one of the reasons for exercising the power’.68 Both Codes of Practice outline considerations that can be taken into account when selecting whom to stop. While the Code for the TA 2000, schedule 7 provides more detail, the considerations in both Codes remain very general (such as behaviour or information on current, emerging or future terrorist activity).69

60 See Lennon, ‘Precautionary Tales’ (n 34) 49–50. 61 Terrorism Act 2000, s 48(1)(b). 62 Home Office, Code of Practice (England, Wales and Scotland) for the Exercise of Stop and Search Powers Under Sections 43 And 43a of the Terrorism Act 2000, and the Authorisation and Exercise of Stop and Search Powers Relating to Section 47a of, and Schedule 6b to, the Terrorism Act 2000 (London, Home Office, 2012) 4.1.5. 63 Gillan (ECtHR) (n 18). 64 Anti-Social Behaviour Crime and Policing Act 2014, s 148 and sch 9. 65 See Anderson, The Terrorism Acts in 2013 (n 15). 66 Home Office, Review of the Operation of Schedule 7: A Public Consultation (London, Home Office, 2012). 67 See Home Office, Code of Practice (n 62) 4.11.6, see generally 4.11. For sch 7, see Home Office, Examining Officers and Review Officers under Schedule 7 to the Terrorism Act 2000: Code of Practice (London, Home Office, 2015). Note this was updated following Beghal. 68 Beghal (n 37) [104]. 69 See Home Office, Code of Practice (n 62); Home Office, Examining Officers and Review Officers under Schedule 7 (n 67).

178  Genevieve Lennon Turning to Walker’s remaining criteria, in relation to the requirement of accountability, there has been some improvement, certainly as far as statistical transparency goes, with the TA 2000, schedule 7 statistics being made publicly available since 2009. The authorisation of the TA 2000, section 44 was highly opaque with, for example, a number of unlawful authorisations that overran the maximum 28 days only coming to light following a Freedom of Information Request.70 It is currently unclear whether there will be improved transparency in this respect under the TA 2000, section 47A. Community involvement – Walker’s fourth requirement – is contemplated, although not required, under section 47A, but has not been incorporated into schedule 7.71 Indeed, schedule 7 presents significant challenges in this regard. While some of the ‘community’ are evident – the staff and businesses that populate ports and airports – travellers are, by definition, transient and difficult to engage. Fifth, the powers are subject to consideration by the Independent Reviewers and the TA 2000, section 44 was also considered by Lord MacDonald in his review of terrorism legislation.72 However, notwithstanding consideration by parliamentary committees, the powers are not subject to specific reviews by the legislature, thus failing to adhere to Walker’s final criterion. As already discussed, the deployment of all-risks counter-terrorist policing in the UK has dwindled from its highs of the late 2000s, with non-border suspicionless stop and search powers not used since 2011. Section 47A was used for the first time following the attack on Parsons Green Tube Station on 15 September 2017.73 Its use was authorised by four forces: the British Transport Police (BTP); City of London Police; North Yorkshire Police; and West Yorkshire Police.74 It is notable that the MPS, which is the largest UK police force and was by far the heaviest user of the TA 2000, section 44, did not authorise the use of section 47A even though the attack took place in its force area. There were 126 stops and searches conducted by the BTP, with four resultant arrests, and one stop and search by each of the Yorkshire forces. The City of London police did not deploy the power.75 This use appears to be considerably more restrained than occurred under TA 2000, section 44 and seems likely to have been intelligence driven; however it remains to be seen whether this is a one-off, or whether it heralds a return to the routine use of the power.76 The use of the TA 2000, schedule 7 has fallen consistently since 2012. In 2009, the first year for which there are records, there were 85,557 examinations. By 2016/17 this had fallen to 18,103, a reduction of some 80 per cent. It is perhaps 70 HC Deb 10 June 2010, vol 511, cols 24WS–28WS (Herbert). 71 Home Office, Code of Practice (n 62). 72 Lord MacDonald, Review of Counter-Terrorism and Security Powers (Cm 8003, 2011). 73 BBC News, ‘Police forces use new terror stop and search powers’ (7 December 2017). 74 Home Office, Operation of police powers under the Terrorism Act 2000 and subsequent legislation: Arrests, outcomes, and stop and search, Great Britain, quarterly update to September 2017 (London, Home Office, Statistical Bulletin 24/17, 2017) 6.1. 75 ibid. 76 BTP, Annual Report: 2010/11 (London, BTP, 2011).

All-Risks Counter-Terrorist Policing  179 notable that the percentage of persons examined for more than an hour has increased over that period from just over 3 per cent in 2012 to 9 per cent in 2017, with detentions increasing from 0.8 per cent to 10 per cent.77 The decreased numbers of schedule 7 examinations coupled with the increase in detentions of over an hour could perhaps point to a finessing of the powers’ deployment.78 Data is not published on the number of arrests or other outcomes.79

B.  The US In the US, practice has diverged from that of the UK since the late 2000s. Precise trends cannot be determined due to the lack of public accountability over the practices, none of which are subject to routine, public accounting. However, piecing together case law, reports and news articles presents at least a sketch of the environment of all-risks, focusing on non-border powers. The US counter-terrorist all-risks powers are fragmented. At the federal level, the Department of Homeland Security’s Transportation Security Administration operates Visible Intermodal Prevention and Response (VIPR) teams, which are deployed across surface and air transportation systems and at special events, for example, the Super Bowl and State of the Union address. They are manged by the Federal Air Marshalls Service, often operating at the request of, and alongside, local law enforcement and transportation officers.80 Certain ports are subject to federal statute which requires pre-boarding screening.81 Amtrak and numerous transit authorities have deployed variants on the theme, including in New York, New Jersey, Massachusetts Bay, Los Angeles, Washington DC, Marlyland and the Niagara Frontier.82 While practice varies, these ‘inspection programmes’ are usually restricted to transit systems and are typically non-coercive: persons can leave the transit system rather than submit to a search. They are usually confined to bags that could contain bombs, thus excluding small handbags and wallets and personal pat-downs.83 Their objectives are deterrence and detection, although the effectiveness of powers as a detection tool is highly questionable.84

77 Home Office, Operation of police powers (n 74) Table s.04. Note figures are for the year to September. 78 Hill (n 40) 5.10. 79 Although see examples given in Anderson, The Terrorism Acts in 2012 (n 59) 10.58–10.62. 80 R Allison (Director, Federal Air Marshal Service), ‘The Federal Air Marshal Service and its Readiness to Meet the Evolving Threat’ (Statement before the House Committee on Homeland Security, Transportation Security Subcommitttee, 16 July 2015). 81 The Maritime Transportation Security Act 46 USC ss 70101–119 (2006). 82 American Public Transportation Association ‘Random Inspections of Carry-On Items in Transit Systems’ (SS-SRM-WP-002-10, APTA, Washington DC, 2010). 83 For further detail see G Lennon, ‘Security Inspections: Suspicionless Stop and Search in the USA and UK’ in G Lennon and C Walker (eds), The Routledge Handbook of Law and Terrorism (London, Routledge, 2015). 84 See, eg, MacWade v Kelly 460 F 3d 260, 271 (2nd Cir, 2006); Cassidy v Chertoff 471 F 3d 67, 70 (2nd Cir, 2006).

180  Genevieve Lennon The absence of mandatory reporting means that the use and impact of these powers is unclear. However, the DC Metro bag inspection programme had led to no arrests after 18 months, nor did the Massachusetts Bay Transit Authority after almost five years.85 VIPR and at least some of the metro inspection programmes remain extant, although they have dropped down the priority list as far as commuter and rights’ organisations are concerned.86 This may be due to decreased numbers, or ‘normalisation’ after a decade of use in some areas, or simply the long list of other pressing civil rights issues. In the wake of the Port Authority attack there was, predictably, an upsurge in police activity, including bag inspections on the subway.87 There is little judicial containment, the courts having held that the bag inspection programmes are constitutional and come within the special needs exception of the Fourth Amendment.88 In Sultan v Kelly the claimant, who was of Kashmiri descent, was stopped 21 times in three years under the NYPD’s inspection programme. He contended that his Fourth and Fourteenth Amendment rights had been violated and sought an injunction requiring the NYPD to maintain demographic records to enable accountability around possible racial profiling and to implement improved training. The injunction was unsuccessful, and the case was settled for $25,000.89 The US ‘inspection programmes’ hold up poorly against Walker’s requirements for containment. Most have no statutory base, the notable exceptions being the VIPR programme (although the statutory detail is exceptionally light-touch)90 and the ferry inspections that were challenged unsuccessfully in Cassidy v Chertoff.91 There is little if any accountability, in terms of giving an account, with such information on deployment as exists haphazard and generally resulting from legal cases and/or information requests from news agencies. In terms of oversight, there is often none, with no authorisation required to deploy the powers, and no ad or post-hoc scrutiny. There is limited community involvement, although transit stakeholders are consulted under some regimes and the public is generally made aware that searches are being conducted. Apart from reviews of VIPR within the ambit of general reviews of the Department of Homeland

85 Adam Tuff, ‘Metro’s random bag searches net no arrests’ Washington’s Top News (12 June 2012, available at: wtop.com/news/2012/06/metros-random-bag-searches-net-no-arrests. 86 eg, Boston’s MBTA continues to have TSA coordinated inspections: Massachusetts Bay Transportation Authority, ‘If you See Something, Say Something’, available at: mbta.com/transit-police/ see-something-say-something. 87 Bart Jansen, ‘Police pledge more patrols after NYC transit attack but say no broader threat is imminent’ USA Today (11 December 2017), available at: www.usatoday.com/story/news/2017/12/11/ police-pledge-more-patrols-after-nyc-transit-atsubway-bombing-but-say-no-more-broader-threatimminen/940309001. 88 MacWade v Kelly (n 84); Cassidy v Chertoff (n 84). 89 Sultan v Kelly 09 CV 00698 (RJD)(RER) (EDNY, 30 June 2009). 90 6 USC 1112, s 1303. 91 Cassidy v Chertoff (n 84). The relevant statute is: The Maritime Transportation Security Act 46 USC ss 70101–119 (2006).

All-Risks Counter-Terrorist Policing  181 Security (DHS) or TSA, there are no structured reviews by anybody, let alone the relevant legislature – who would rarely be involved in any case due to the lack of a statutory base. The one criterion they do adhere to is the requirement of a link to vulnerable targets, although this appears to be – at least some of the time – on the basis of a generalised threat towards mass transportation.

C. France The French state of emergency that had been in force since the Paris attacks of 13 November 2015 expired on 1 November 2017, being partially replaced by the Act to Reinforce Internal Security and the Fight Against Terrorism.92 The law makes permanent a number of the emergency measures that had been in force. Of interest in relation to all-risks policing is the power under Article 1 which permits Prefects – the Interior Minister’s local representatives – to designate ‘protection perimeters’ to ensure security at events or in particularly vulnerable places which are exposed ‘to a risk of acts of terrorism’. The designation may last for up to a month and is renewable. The duration and extent must be proportionate although, given the trigger is so low, this adds little by way of safeguards. Human Rights Watch expressed concern that the broad discretion afforded by this power would simply exacerbate concerns regarding discrimination in relation to identity checks.93 The UN Special Rapporteur, Fionnuala Ní Aoláin, noted the impact of the draft Bill on, inter alia, freedom of movement, as well as a general concern that such exceptional powers are being made permanent.94 Given the power is so recent, there is no information on its deployment. The 2017 law is based upon a measure from the state of emergency.95 That power, under Article 8(1), permitted the Prefect to designate an area for up to 24 hours during which the police could conduct identity checks, visual and bag inspections and inspections of vehicles. There was no requirement of suspicion and the searches did not require consent. Any incidental criminality revealed could be relied on in subsequent proceedings.96 There is no required trigger, the only pre-requisite being that the area was under a state of emergency. In the 16  months that it was in force, approximately 5,000 designations were made.97 There were no evaluations, nor published records regarding the number of dangerous items found, nor arrests made. It was deployed at events as diverse as 92 Loi no 2017-1510 du 30 Octobre 2017. 93 Human Rights Watch, ‘France: Flawed Security Bill Would Violate Rights’ (12 September, 2017), available at: www.hrw.org/news/2017/09/12/france-flawed-security-bill-would-violate-rights. 94 F Ní Aoláin, ‘Letter to the French Government on 22 September 2017’ (OL FRA6/2017), available at: www.ohchr.org/Documents/Issues/Terrorism/OL_FRA22.09.17.pdf. 95 Art 8(1) of Loi no 55-385 du 3 Avril 1955, in its drafting from Loi no 55-385 du 21 Julliet 2016. 96 Code of Criminal Procedure, Art 78-2-2 sub-paras 3–4. 97 Julia Pascual, ‘Les contrôles d’identité et les fouilles de l’état d’urgence déclarés contraires à la Constitution’ Le Monde (1 December 2017).

182  Genevieve Lennon the Saint-Hilaire-Saint-Mesmim cherry festival and the Parisian polling stations during the election.98 While nominally limited to 24 hours, a series of rolling designations covering the public transportation of passengers by rail in Paris lasted from 4 April to 21 July 2016.99 This law was challenged on the grounds that it infringed the constitutional rights of freedom of movement, respect for private life, the principle of equality and the right to a fair trial.100 The Constitutional Council declared the law to be unconstitutional on the basis that the legislature failed to balance the objectives of safeguarding against attacks on public safety, which must be considered under the state of emergency, and the rights of freedom of movement and a private life. Specifically, it criticised the fact that the areas could be designated without any need to establish a risk of harm to public order. The current law differs in two key respects. First, it is narrower in that there must be a risk of acts of terrorism in the designated areas. The link to acts of terrorism would appear to be the minimum required to address the concerns raised by the Constitutional Council. However, while this may have sufficed under the state of emergency, it is questionable whether it will go far enough outwith that. Second, it is broader in so far as a protection perimeter may be imposed for up to a month at a time. While fitting well with the logic of all-risks, permitting additional security around locations that are deemed to be vulnerable or particularly risky targets, it suggests the level of specificity is comparatively low and of a more generalised nature, such that it would endure for up to a month. This lengthy duration is unlikely to bolster the case for the power’s constitutionality. One could argue that there is an element of consent required as persons who do not wish to be searched can leave the area rather than submitting to a search. However, this could be a rather ephemeral form of consent. If the perimeters apply around mass public transportation, it could be argued that entrance is a necessity rather than a choice for commuters who may have no reasonable alternative for getting to and from work. Equally, if the perimeters cover substantial public spaces, the potential infringement of the freedom of movement is substantial. Most concerning would be if the person lives or works within the perimeter: there can be no suggestion of freely given consent in such circumstances. The consent argument is only really persuasive if the perimeter is applied to specific events and/or iconic venues. Absent consent, it seems questionable whether the law is sufficiently narrowly drawn to satisfy the Constitutional Council. Certainly, Gillan would suggest that, should the issue be raised in Strasbourg, the ECtHR would be unimpressed. The trigger is slightly higher than the requirement of ‘expediency’ in the TA 2000, section 44, but not by much, and the absence of any additional safeguards, or even a specific object to the search indicates even



98 ibid. 99 ibid.

100 Decision

no 2017-677 QPC of 1 December 2017.

All-Risks Counter-Terrorist Policing  183 broader discretion than evident in Gillan. Also, unlike the TA 2000, section 44, the powers permit identity checks. There seems to be a clear risk of the arbitrary exercise of the power. Current practice may show restraint, although the experience in relation to its predecessor power suggests otherwise. It therefore seems likely that the ECtHR would hold that the power was not in accordance with the law. Under the relevant French provisions, there is weak compliance with Walker’s containment principles. The power has a statutory base, but the provisions are exceptionally light-touch. The requirement that there be a risk of terrorism in the designated area could be seen as a linkage to a vulnerable location but some degree of imminence or narrowing of the trigger would be desirable. It is unclear what criteria, if any, there are around accountability. In terms of oversight, the designation process is undermined by the low trigger. It is unclear whether records must be kept or published. There is no discussion of the selection criteria. There is no requirement of community engagement. Finally, there is, like the US and UK powers, no requirement of regular legislative review.

Conclusion None of the powers discussed in this chapter adhere fully to Walker’s principles for containment. That they should do so is a necessary first step. The practice and case law over the past decade or so suggests that additional restraints are needed to effectively control these powers. Adherence to the Gillan high-water mark, which in essence required all-risks powers be time limited and intelligence driven, would be desirable. However, as discussed, there appears to have been a retreat from this standard. To ensure the constitutionality of all-risks powers as currently practised, I would suggest the following additions to Walker’s principles. First, evidence of non-terrorist criminality found during the exercise of all-risks measures be non-admissible in subsequent trials. Second, evidence from interviews conducted under all-risks measures be non-admissible in subsequent trials. Notwithstanding the ECtHR’s disappointing permissiveness towards ‘safety interviews’,101 interviews conducted with persons who are not suspected of an offence or subject to the appropriate safeguards should not be admissible in court. This should be achieved by way of an explicit statutory bar.102 As well as ensuring adherence to the right to a fair trial, these requirements should serve to encourage officers to use all-risks measures solely to determine whether the person is risky or not. If it is determined that the person is risky, then the ‘ordinary’ counter-terrorist or criminal law should apply.103 101 Ibrahim v United Kingdom App no 50541/08 (2015) 61 EHRR 9. See further A Roberts, ‘Fair Trial: Ibrahim v United Kingdom’ (2017) 11 Criminal Law Review 877. See also ch 2 (Dickson) in this collection. 102 Compare Beghal (n 37). 103 See ch 3 (Walsh) in this collection.

184  Genevieve Lennon The significant upturn in the number of attacks across Europe and their ‘­diversified and simplified’ modus operandi lend themselves to precisely the type of precautionary logic that underpins all-risks policing.104 It is perhaps not surprising that, in the UK, some seven years after it was introduced, section 47A was authorised in September 2017. This followed the sixth terror attack in a year punctuated by warnings from the head of MI5 and the MPS regarding the increased severity of the terrorist threat.105 While the attacks may fit the justifying narrative well, this chapter has argued that the underlying concerns around the constitutionality of these measures, as identified by Walker, continue to persist.

104 D Anderson, Attacks in London and Manchester: March-June 2017 (London, Home Office, 2017). 105 C Dick (Commissioner of the MPS), ‘Interview with Nick Ferrari – Met Police Have Thwarted FIVE Terror Attacks – Some Just Minutes Before’ LBC Radio (14 July 2017), available at: www.lbc. co.uk/radio/presenters/nick-ferrari/met-police-thwarted-five-terror-attacks. Parker (n 35). See further Anderson, Attacks in London and Manchester (n 104) 1.5; BBC News, ‘Parsons Green: What do the police do next?’ (n 36).

part ii Miscarriages of Justice

186 

12 Defining Miscarriages of Justice in the Context of Post-9/11 Counter-Terrorism kent roach Introduction Miscarriages of justice and counter-terrorism constitute the two main subjects that Clive Walker continues to write about in his illustrious and prolific career. But why these two subjects? Pending Clive’s autobiography, one can speculate that for an engaged law student in the 1970s who completed his postgraduate work in 1982 in the middle of England, the connections between the subjects were simply obvious. If you lived Clive’s life, terrorism and wrongful convictions simply went together like fish and chips, or gin and tonic. The Birmingham Six were convicted of murder in 1975 for pub bombings that killed 21 people and injured 160. The horrific bombings led to the enactment of the Prevention of Terrorism (Temporary Provisions) Act 1974. Their wrongful convictions were overturned in 19911 only after failed civil litigation, petitions to the executive and appeals. The Guildford Four were also convicted in 1975 and their convictions were quashed in 1990.2 These wrongful convictions led to campaigns that gave those convicted of appalling acts of terrorism names and a sense of humanity that is sometimes lost in the strong emotions caused by terrorism. It also eventually led to the creation of the Criminal Cases Review Commission.3 This chapter will suggest that more than historical or geographic happenstance, or simply following the headlines, justifies Professor Walker’s decision to study counter-terrorism and miscarriages of justice together. Understanding how the state uses all its resources to counter terrorism can lead to a richer understanding of the many forms of injustice that merit the label ‘miscarriages of justice’.



1 R

v McIlkenny & others (1991) 93 Crim App R 287. v Hill and others, The Times (20 October 1989). 3 See ch 15 (Roberts) in this collection. 2 R

188  Kent Roach In addition, terrorism is a crime that, in its willingness to harm the innocent, places pressure on the state to do the same. The indiscriminate nature of terrorism can infect the state’s counter-terrorism activities and place pressure on traditional liberal ideas that it is better to have false negatives in the form of wrongful acquittals than false positives in the form of wrongful convictions.4 Over a decade and half into the so-called post 9/11 long war on terrorism, one still searches in vain for widely recognised and notorious cases of wrongful convictions to rival the Birmingham Six or Guildford Four. One of the aims of this chapter is to explain why this may be so. Another aim is to explore various definitions of miscarriages of justice and how they can be applied to various forms of counter-terrorism. The first part of this chapter will examine Clive Walker’s broad and influential definition of a miscarriage of justice.5 Walker’s definition comes close to defining all unjust laws and practices and all rights violations as potential miscarriages of justice. This definition has been controversial from the start.6 It has not been accepted in English law or by those who equate miscarriage of justice with factual innocence.7 Nevertheless, it remains normatively compelling and prescient in its ability to apply language and learning from miscarriages of justice to a broad range of counter-terrorism measures including the enactment of over-broad terrorism laws and the use of military and immigration detention. The next part of this chapter will apply Walker’s broad definition of miscarriages of justice to terrorism offences and trials. It will suggest that some terrorism offences may be so broad as to be substantively unjust and some terrorist trial processes may be so procedurally deficient as to constitute miscarriages of justice. Such conclusions undermine the support that both Professor Walker8 and I9 have expressed in the post-9/11 era for criminalisation strategies towards terrorism. Of course, it can be argued that it is simply too soon for post-9/11 miscarriages of justice to have been revealed and corrected. A more troubling hypothesis is that post-9/11 terrorism offences have come close to defining innocence out of 4 W Blackstone, Commentaries on the Laws of England Vol IV (Chicago, IL, University of Chicago Press, 1979) 27 as quoted with approval in C Walker, ‘Introduction’ in C Walker and K Starmer (eds), Justice in Error (London, Blackstone Press, 1993) 3–4. 5 C Walker, ‘Miscarriages of Justice in Principle and Practice’ in C Walker and K Starmer (eds), Miscarriages of Justice: A Review of Justice in Error (London, Blackstone Press, 1999) 48–49. 6 D Schiff and R Nobles, ‘Review: Justice in Error’ (1994) 34 British Journal of Criminology 383. 7 Walker’s definition would, for example, apply to the unlawful and summary extradition of a suspected terrorist, Nicholas Mullen, from Zimbabwe. The House of Lords, however, found that he was not a victim of miscarriage of justice entitled to compensation. R v Secretary of State ex parte Mullen [2004] UKHL 18, para 12. As Quirk and King document in ch 16, both courts and Parliament have subsequently narrowed eligibility for compensation since that decision and increasingly towards a factual innocence model. Mullen’s conviction was quashed by the Court as unsafe but on the basis that safety included abuse of process. R v Mullen [1999] EWCA Crim 278, paras 66–67. On the somewhat uncertain survival of the Mullen approach to finding convictions to be unsafe on the basis of unfair procedures in subsequent appellate decisions, see ch 15 (Roberts) in this collection. 8 C Walker, ‘Keeping Control of Terrorists Without Losing Control of Constitutionalism’ (2007) 59 Stanford Law Review 1395, 1400. 9 K Roach, The 9/11 Effect (Cambridge, Cambridge University Press, 2011); K Roach (ed), Comparative Counter-Terrorism Law (Cambridge, Cambridge University Press, 2015).

Defining Miscarriages of Justice  189 existence. Despite Clive Walker’s urging, social and even legal10 understandings of miscarriages of justice are increasingly based on a factual innocence model that is much more limited than Walker’s rights-based definition and cannot readily be applied to statutory inchoate offences that have typically been prosecuted in the post-9/11 era. The last part of the chapter will examine whether the language and learning of miscarriages of justice have been applied to non-criminal counter-terrorism interventions. Perhaps paradoxically it will suggest that some miscarriage of justice concepts have been applied to the rendition and the targeted killing of those clearly not involved in terrorism. The growing strength of a limited factual innocence model, however, may help explain why a recent apology and settlement that the Canadian government provided to Omar Khadr (a Canadian captured as a child soldier and tortured in American custody at Guantanamo Bay) has been much more controversial than a similar package offered to Maher Arar (a Canadian rendered by the US to Syria in 2002 and tortured before being released). Because of the extraordinary efforts of a Canadian public inquiry, Arar was exonerated of involvement in terrorism. Arar more easily fits a factual innocence model whereas Khadr, who pleaded guilty before a military commission at Guantanamo Bay to killing an American soldier, does not, even though it is clear that his rights were violated and he was treated unjustly. Although I have in the past expressed the view that Professor Walker’s definition of a miscarriage of justice may be too broad,11 my point is not to defend a factual innocence model. Indeed, I agree with Professor Walker that an exclusive concern about factual innocence is radically under-inclusive of the range of injustices and can present a threat to due process. The g­ rowing strength of the factual innocence model is related to the rise of a punitive and populist form of victims’ rights,12 which seems only prepared to recognise the rights and the humanity of the clearly innocent.13 The factual innocence model has the regressive potential 10 The increased migration of a factual innocence model into various forms of law supports Clive Walker’s arguments that the separation between legal and lay or media understandings of miscarriages of justice proposed first by Richard Nobles and David Schiff are more permeable than they suggest. See R Nobles and D Schiff, Understanding Miscarriages of Justice: Law, the Media, and the Inevitability of Crisis (Oxford, Oxford University Press, 2000) and Walker’s critical review of it: C Walker, ‘Book Review’ (2001) 20 Legal Studies 615, 619–21. 11 K Roach and G Trotter, ‘Miscarriages of Justice in the War Against Terror’ (2005) 109 University of Pennsylvania Law Review 967. 12 For a contrast between punitive models of victims’ rights which drew stark distinction between offenders and victims, and less punitive models that recognise overlap between the two populations, see K Roach, Due Process and Victims’ Rights: The New Law and Politics of Criminal Justice (Toronto, University of Toronto Press, 1999). 13 There is a small literature in the United States that argues that the factual innocence model has regressive implications both in the context of habeas corpus review and elsewhere. M Raymond, ‘The Problem with Innocence’ (2001) 49 Cleveland State Law Review 449; CS Streiker and JM Streiker, ‘The Seduction of Innocence’ (2005) 95 Journal of Criminal Law and Criminology 587; D Medwed, ‘Innocentrism’ (2008) 5 University of Illinois Law Review 1549; S Bandes, ‘Protecting the Innocent as the Primary Value of the Criminal Justice System’ (2009) 7 Ohio State Journal of Criminal Law 413; E Hughes, ‘Innocence Unmodified’ (2011) 89 North Carolina Law Review 1083. For a powerful UK critique of the factual innocence model, see H Quirk, ‘Identifying Miscarriages of Justice: Why

190  Kent Roach to make wrongful convictions based on clear evidence of innocence a thing of the past, at least in the terrorist and other ‘pre-crime’ contexts, and in cases where individuals will be unable clearly to dispel security-related suspicions.

I.  What is a Miscarriage of Justice and Why it Matters Much of the study of wrongful convictions focuses on their causes and prevention without much attention to their definition. Issues about the appropriate definition of a miscarriage of justice may seem theoretical and even semantic. Neglect of definitional questions, however, is short-sighted. Some of the discontent about the Criminal Cases Review Commission seems related to the fact that neither it, nor English and Welsh criminal law, recognises factual innocence.14 Canadian criminal courts have also held that they do not have jurisdiction to make declarations of factual innocence.15 In contrast, Innocence Projects and the media often see factual innocence as central to their work for a variety of reasons, including gaining public attention and support. Factual innocence is also often a requirement for compensation. Narrow definitions of miscarriage of justice as limited to proven factual innocence, however, can stunt the innocence movement’s impact and cause it to focus on mechanical issues of proof and evidence at the expense of downplaying larger issues concerning the justice of laws and penalties as well as issues of discrimination.16

A.  Clive Walker’s Broad and Controversial Definition In 1993, Clive Walker defined miscarriages of justice to occur whenever individuals are treated by the State in breach of their rights; whenever individuals are treated adversely by the State to a disproportionate extent in comparison

Innocence in the UK is Not the Answer’ (2007) 70 Modern Law Review 759. My point is not to criticise the American innocence movement: it has accomplished much and may well represent the best reform option in the US. Nevertheless, we should be careful to assess the implication of its migration to the non-criminal context and to other countries. 14 M Naughton, The Innocent and the Criminal Justice System (London, Palgrave MacMillan, 2013). But compensation for miscarriage of justice in the UK now requires factual innocence in the sense that the new evidence ‘shows beyond reasonable doubt that the person did not commit the offence’: Criminal Justice Act 1998, s 133(1ZA) as amended by the Anti-social Behaviour, Crime and Policing Act 2014, c 12. 15 R v Mullins Johnson [2007] ONCA 720. Factual innocence has penetrated American law to a greater degree than in Canada and is used in habeas corpus litigation and as a ground for overturning convictions in some states, most notably North Carolina. 16 R Norris, Exonerated: A History of the Innocence Movement (New York, New York University Press, 2017) 172 quoting Steve Drizin’s comments that: ‘There are much bigger problems in the criminal justice system than the innocence issue – length of sentences, the nature and conditions of incarceration, racial bias.’

Defining Miscarriages of Justice  191 with their need to protect the rights of others; or whenever the rights of others are not properly protected or vindicated by State action against wrongdoers.17

Such a definition included laws that ‘are inherently unjust rather than unjustly applied.18 Walker’s definition could also include disproportionate detention, arrest and search powers. Walker’s broad rights-based definition seems shaped by the lived experience of counter-terrorism in Northern Ireland including the use of preventive arrests, restrictions on freedom of expression, military internment, exclusion orders and discrimination against the Irish. It also included ‘a refusal to prosecute particular types of suspects, especially members of the security forces’ with reference to controversies over shoot to kill practices of the British Army and the Royal Ulster Constabulary.19 It also reflected Walker’s dual commitment to legal and political constitutionalism because it was directed towards miscarriages of justice that occurred not only in the courts but also in the legislature and the executive. Richard Nobles and David Schiff were critical of the breadth of Walker’s definition. They argued that ‘by defining miscarriages to include unjust laws, and failure to protect individuals against actions by criminals and vigilantes’,20 Walker had gone beyond the purview of wrongful convictions. As those who know Clive would expect, he penned a robust response to this criticism. He argued that a focus on proof and evidence begged more fundamental questions about rights.21 This was an effective response that suggested that limited definitions of miscarriage of justice often implicated deeper questions about why the justice system should value some injustices over others. In 1999, Clive Walker doubled down and defended his 1993 definition as an ‘individualistic rights-based approach to miscarriages of justice’. Under this even broader definition, miscarriages of justice occurred whenever suspects or defendants or convicts are treated by the State in breach of their rights, whether because of, first deficient processes, or second, the laws which are applied to them or, third, because there is no factual justification for the applied treatment or punishment; fourth, whenever, suspects or defendants or convicts are treated adversely by the State to a disproportionate extent in comparison with the need to protect the rights of others; fifth, whenever the rights of others are not effectively or proportionately protected or vindicated by State action against wrongdoers, or sixth, by State law itself.22

17 Walker, ‘Introduction’ (n 4) 4. Walker elaborated that ‘there are many parts of the Prevention of Terrorism Acts which might be perceived as leading to miscarriages of justice because they deny rights without due process or proof beyond a reasonable doubt’, ibid, 195. 18 ibid 5. 19 ibid. 20 Schiff and Nobles, ‘Review’ (n 6) 384. 21 C Walker, ‘Response to a Review’ (1994) 34 British Journal of Criminology 661, 662. 22 Walker, ‘Miscarriages of Justice in Principle and Practice’ (n 5) 33. A seventh indirect form of miscarriage of justice was identified as ‘a conviction arising from deceit or illegalities’ even if there was ‘an accurate and fair determination of guilt or innocence’, ibid, 37.

192  Kent Roach The 1999 definition applied regardless of whether the accused was factually guilty or had committed the elements of the offence. It thus decisively rejected an ­ American focus on factual innocence that had already entered into its habeas corpus jurisprudence and would soon take off with the rise of Innocence Projects and DNA exonerations. Walker has remained committed to this definition in the years since. Writing with Carole McCartney, he argued in 2008 that a miscarriage of justice included both convictions and treatments without a ‘factual justification’ and the conviction of the factually guilty who had been denied their rights.23 They subsequently argued that miscarriages of justice include an ‘unwarranted penalty’ including the death penalty and that they preferred to use the term ‘unjustly convicted, rather than to assert some kind of factual or absolute “innocence”’.24 A close reading of Walker’s definition of a miscarriage of justice demonstrates that Walker is not unconcerned with the conviction of the innocent, as Michael Naughton has recently and unfairly suggested.25 Indeed, Walker relied on Ronald Dworkin’s argument that the innocent had a right not to be convicted and suggested that the state would be responsible for such an event even if the more proximate cause of the wrongful conviction was the testimony of a witness or a judgment by a jury.26 Although Walker’s definition is rights based, it is not rights absolutist.27 Specifically, it defines a miscarriage of justice as breaching rights ‘to a disproportionate extent’.28 This accords with the development of modern human rights laws and foreshadowed cases such as the Belmarsh case,29 where the courts intervened because a counter-terrorism law was disproportionate and discriminatory. Walker’s definition is defined by a liberal commitment to rights, but it is also attentive to the rights of victims of crime. This reflects right to life and effective remedies jurisprudence under the European Convention on Human Rights, as well as lack of prosecutions for state abuses in Northern Ireland. The inclusion

23 C McCartney and C Walker, ‘Criminal Justice and Miscarriages of Justice in England and Wales’ in CR Huff and M Killias (eds), Wrongful Conviction: International Perspectives on Miscarriages of Justice (Philadelphia, PA, Temple University Press, 2008) 186–87. 24 C McCartney and C Walker, ‘Enemies of the State and Miscarriages of Justice’ (2014) 32 Delhi Law Review 17, 22. 25 Michael Naughton describes Walker’s approach as one based on ‘due process’ and suggests contrary to a close reading of Walker’s definition that ‘it leads to the perverse conclusion that no miscarriage of justice has occurred even if a factually innocent person is convicted so long as due process is adhered to’. Naughton (n 14) 26. Naughton’s critique of Walker is off-base, but that does not mean that the existing system could not, as Naughton urges, be more attentive to truth and factual innocence especially in relation to matters of finality and fresh evidence. 26 Walker, ‘Miscarriages of Justice in Principle and Practice’ (n 5) 35. 27 Even Dworkin himself conceded that there was no right to the most accurate possible criminal justice system, thus suggesting that proportionate limits on the right of the innocent to be convicted could be justified. R Dworkin, A Matter of Principle (Cambridge, MA, Harvard University Press, 1985) ch 3. 28 Walker, ‘Miscarriages of Justice in Principle and Practice’ (n 5) 33. 29 A v Secretary of State [2004] UKHL 54.

Defining Miscarriages of Justice  193 of failure to vindicate the rights of victims of wrongdoing was prescient given the failure of the US even under the Obama Administration to prosecute those responsible for abuses in its rendition, torture and secret prison programmes. It also can be relevant to the need for the state to respond equally and effectively to violence against Muslims and other targets of far-right terrorists, an issue that sadly may grow in importance over the coming years.

B.  Walker’s Definition of a Miscarriage of Justice as Applied to Counter-Terrorism Walker’s broad definition is well suited to evaluating the broad range of post9/11 counter-terrorism. As such, it affirms the wisdom of his decision to study counter-terrorism side by side with miscarriages of justice. Indeed, much post9/11 counter-terrorism scholarship on issues such as over-breadth in terrorism offences,30 the use of many less restrained alternatives to the criminal sanction31 and the failure to prosecute security officials for post-9/11 abuses of human rights32 follows paths that Walker had already identified as possible miscarriages of justice in the 1990s. Even if Walker’s broad rights-based approach has not generally won legal or public support, it has been followed by many academics writing about counterterrorism. The fact that these academics have implicitly followed Walker’s pre-9/11 definition of a miscarriage of justice also suggests that counter-terrorism did not fundamentally change with 9/11.

C.  Narrower Definitions Writing with Gary Trotter in 2005, I relied on Walker’s definition to argue that American post-9/11 use of military and immigration detention could result in miscarriages of justice.33 At the same time, I had the temerity to disagree with Clive. Specifically, I questioned whether it was necessary to extend the ‘powerful label and conclusion’ of miscarriages of justice to all rights violations; to laws that were substantively unjust and to violations of victims’ rights. I performed some triage designed to build on the ‘widely held revulsion at the imprisonment of those who are innocent’ and in the end proposed a narrower definition of a miscarriage of justice as detention in a manner that did not ‘provide sufficient safeguards 30 eg, V Tadros and J Hodgson, ‘How to Make a Terrorist Out of Nothing’ (2009) 72 Modern Law Review 984. 31 eg, D Cole, Enemy Aliens (New York, New Press, 2003); Roach, The 9/11 Effect (n 9); C Gearty, Liberty and Security (Cambridge, Polity, 2013). 32 eg, P Sands, Lawless World (London, Allen Lane, 2005). 33 Roach and Trotter (n 11).

194  Kent Roach for the determination of whether the criteria of detention accurately apply’ to the detainees or ‘factual innocence whether that be the law of war, immigration law or criminal trials’,34 including questions about whether the targeted person had an adequate defence. My concern in 2005 was to raise awareness of the dangers of false positives even among those who accepted detention of suspected terrorists under immigration or military laws as just. I suspect that Clive’s approach would have been bolder. He would not have ignored the false positive problem, but he would have more directly engaged with the justice of the military and immigration laws that authorised detention. I have come to accept the wisdom of Clive’s more substantive approach. Unfortunately, the US continues to use an incoherent and unjust melange of criminal law and law of war concepts that gives the state the advantages of both forms of law while depriving detainees of most of the advantages of both forms of law.35 The Trump Muslim ban also confirms that immigration law continues to be used as an arbitrary form of terrorism law based on irrational fears of the foreign and Muslim ‘other’.36

D.  The Rise of the Limited Factual Innocence Approach The analysis that grounded my approach in 2005 may have been normatively suspect compared with Clive’s approach. Nevertheless, I fear that history may be on the side of more limited approaches to understanding miscarriages of justice. Without accepting the rigid distinctions between media and legal analysis or lay and legal understandings as Schiff and Nobles37 or Naughton38 posit, there are dangers in ignoring social constructions of miscarriages of justice. As Brice Dickson has warned, the frequent failures of ‘campaigners … to distinguish between … varieties of miscarriage’ can mean ‘that their campaigns do not attract the support, let alone the ultimate success, which they might otherwise enjoy’.39 In the remainder of this chapter, I will suggest that rights

34 ibid. 35 Roach, The 9/11 Effect (n 9) ch 4. 36 International Refugee Assistance v Trump (4th Cir, 2018), at: coop.ca4.uscourts.gov/opinions/ Published/172231.pdf (travel ban violates First Amendment by being based on animus towards Islam). 37 Nobles and Schiff, Understanding Miscarriages of Justice (n 10). For cogent criticisms of the rigidity of the distinction see Walker, ‘Book Review’ (n 21) 619–21. The tendency of American and even British law in the years since to move towards a factual innocence demonstrates the correctness of Walker’s warning that the boundaries between the law and other systems are permeable. Similarly, preventive intelligence and risk concepts taken from the world of intelligence have influenced counterterrorism law. See K Roach, ‘The Eroding Distinction between Intelligence and Evidence in Terrorism Investigations’ in N McGarrity, A Lynch and G Williams (eds), Counter-Terrorism and Beyond: The Culture of Law and Justice after 9/11 (London, Routledge, 2010). 38 Naughton (n 14) ch 2. 39 B Dickson, ‘Miscarriages of Justice in Northern Ireland’ in C Walker and K Starmer (eds), Miscarriages of Justice: A Review of Justice in Error (London, Blackstone Press, 1999) 288.

Defining Miscarriages of Justice  195 violations and substantively unjust laws have not in the post-9/11 era attracted the same widespread condemnation, and state acceptance of responsibility, as the wrongful conviction of innocent people for IRA bombings did in the last century. In other words, Walker’s broad understanding of miscarriages of justice has not been widely accepted, despite its many attractions. We need to retain a normative sense of ought, but we ignore such social, political and legal realities at our peril.

II.  Criminal Terrorism Convictions and Miscarriages of Justice I share with Clive Walker a preference for what he terms criminalisation strategies to terrorism as opposed to executive-based control strategies such as control orders, no-fly listing and the use of the military. My preference for criminal prosecutions relates to a confidence that criminal law is less accepting of false positives than other forms of counter-terrorism and a sense that accused are treated more fairly than military or immigration detainees.40 The use of less restrained alternatives to criminal prosecutions that were more accepting of secret evidence and other departures from fair procedures has made advocating a criminalisation strategy of ‘charge or release’ in the post-9/11 context a progressive one.41 Criminalisation strategies may also have a greater potential to delegitimise violence and to incapacitate those who are prepared to use violence to achieve political or religious or other goals than other devices such as control orders.42 All that being said, however, my faith in criminalisation strategies is being challenged by the day. One reason is the growing breadth of terrorism offences. Another reason is that despite its concerns about false positives and wrongful convictions, conviction rates for terrorism offences remain high and nothing equivalent to the Irish wrongful convictions has emerged in the post-9/11 era.

A.  Miscarriages of Justice and the Breadth of Terrorism Offences The UK Supreme Court has recognised the difficulties that the international community and many states have had in defining terrorism and the extreme breadth of the definition of terrorist activities in the Terrorism Act 2000. Yet the 40 For discussion in the context of access to legal counsel, see ch 8 (Ní Aoláoin) in this collection. 41 Gearty (n 31). 42 C Forcese and K Roach, False Security: The Radicalization of Canadian Anti-Terrorism (Toronto, Irwin Law, 2015).

196  Kent Roach Court essentially did nothing to remedy such over-breadth.43 The breadth of the definition of terrorism is compounded by the frequent and somewhat casual tendency of states to assert universal jurisdiction. After 9/11, some may have thought that the adage that one man’s terrorist is another’s freedom fighter was dead, but it has resurfaced with a vengeance with the geopolitical complexity of fighting in places such as Libya and Syria. Building on over-broad definitions of terrorism, democracies have enacted a vast array of new terrorism offences designed to prevent acts of terrorism both at home and abroad. As Clive Walker has documented, British laws are extremely broad. They cover behaviour such as receiving training or even possessing objects that are useful for terrorist purposes.44 Undoubtedly, criminal law provides courts with some tools to mitigate statutory over-breadth including presumptions of high levels of subjective fault that have been relied upon by the Supreme Court of Canada45 but not the US Supreme Court.46 Nevertheless, a plain reading of most terrorism offences reveals that the net has been cast very wide and is getting wider with the enactment of new travel and training offences to respond to the challenges of Daesh inspired terrorism. Some new terrorism offences that apply to conduct that is very remote from the commission of actual terrorism violence come perilously close to criminalisation of a person’s status, thoughts, association, charitable giving, travel and provision of services.47 This raises concerns about the substantive justice of offences that were flagged in Walker’s broad definition of miscarriages of justice in the 1990s. It also means that those who may have simply associated with terrorists or have provided money or other support to the non-violent activities of terrorist organisations may be found guilty of committing new statutory inchoate offences. Most discussions of wrongful convictions assume the justice of the underlying offence and focus on whether the accused was guilty under that offence as defined by the legislature. Walker’s definition is both unique and powerful because it raises questions about the substantive justice of the underlying offences: questions that should be asked given the breadth of modern terrorism offences. Even in jurisdictions such as Canada that have applied human rights instruments to the substance of the criminal law, broad terrorism offences have survived 43 R v Gul [2013] UKSC 64. 44 C Walker, Terrorism and the Law (Oxford, Oxford University Press, 2011) 5.79. 45 R v Khawaja [2012] 3 SCR 555 holding that lawyers and others providing legitimate services to a terrorist group would not be guilty of terrorist offences because they did not have a terrorist purpose. But see R v Ansari, 2015 ONCA 575 [186] for a narrow interpretation of the reading down or exemption of innocent activities in Khawaja in affirming a terrorism offence conviction of an accused who provided computer skills without specific intent relating to terrorism or actual enhancement of the terrorist group’s ability to commit terrorism. 46 Holder v Humanitarian Law Project 561 US 1 (2010) (holding that wording of material support displaces requirement that a person have the specific intent or purpose to assist the terrorist activities of a terrorist group). 47 K Roach, ‘Terrorism’ in M Dubber and T Hörnle (eds), The Oxford Handbook of Criminal Law (Oxford, Oxford University Press, 2015).

Defining Miscarriages of Justice  197 human rights challenges including those based on claims that they unreasonably infringe freedom of expression, association and due process protections.48 Even if courts in the future are more receptive to human rights challenges or if they otherwise narrow over-broad terrorism offences, those who have already been convicted may have difficulty taking advantage of such judgments if their appeals have been exhausted. They may be branded permanently as ‘terrorists’. Few will look behind that powerful label. Most 9/11 terrorism prosecutions do not fit the familiar pattern of ‘wrong person’ cases49 that produced notorious miscarriages of justice as the Birmingham Six or the Guildford Four. At best, today’s terrorism wrongful convictions may be cases where no real crime has occurred. Alas courts and the public generally defer to how legislatures create and define crimes.

B.  Procedural Deficiencies and Terrorism Trials In addition to concerns about substantive over-breadth and injustice, post-9/11 terrorism trials have some of the procedural deficiencies identified by Walker as indicia of miscarriages of justice. Definitions of terrorism based on the UK model that require proof of political or religious motive require judges to allow prosecutors to introduce as evidence an accused’s often unpopular religious and political views. There is no guarantee that jurors and judges will not be swayed by such prejudicial evidence, but such forms of miscarriage of justice may be difficult to detect and correct given appellate deference to fact-finding by juries. In North America, there is a trend toward terrorism prosecutions that are the result of elaborate stings involving undercover officers and/or informers. The entrapment defence in the US has consistently been rejected by American juries, perhaps because prejudicial evidence has convinced them that the accused was subjectively predisposed to engage in terrorism.50 In Canada, it is the trial judge and not the jury who decides whether the accused has established entrapment. A trial judge has stayed a prosecution involving two young Muslim converts who were addicted to illegal drugs. She held that the police did not have reasonable suspicion to target them and that the police induced them to accept fake explosive devices during a very lengthy and elaborate sting. She also found that the undercover police had themselves violated several broadly defined terrorism offences.51 The trial judge’s decision is, however, subject to appeal.

48 R v Khawaja (n 45). 49 Dickson, ‘Miscarriages of Justice in Northern Ireland’ (n 39) 288. 50 K Roach, ‘Entrapment and Equality in Terrorism Prosecutions’ (2011) 80 Mississippi Law Journal 1455; W Said, Crimes of Terror (Oxford, Oxford University Press, 2016). 51 R v Nuttall 2016 BCSC 1404.

198  Kent Roach Moreover, the state has taken a ‘heads we win, tails you lose’ approach by seeking to impose a control order or peace bond on the two accused.52 The accused may not have full disclosure of all relevant material held by the state because of concerns about public interest immunity and the protection of sources and foreign intelligence.53 Even though terrorism trials are designed to guard against false positives that convict the innocent, they are not completely immune from the influence of the world of intelligence with the priority it places both on protecting sources, methods and foreign intelligence and avoiding false negatives of failing to detect a security threat.

C.  Guilty Plea Wrongful Convictions There is growing recognition that those accused of crime make rational and irrational decisions to plead guilty even if they may be innocent or have a valid defence.54 One factor that might motivate such guilty plea wrongful convictions may be attempts to mitigate the high sentences often awarded after conviction of terrorism offences. The difficulties of conducting terrorism prosecutions, including the threat of disclosing sources and methods, may increase the guilty plea discount for avoiding lengthy and costly terrorism trials. Another factor is that many of those accused of terrorism may have little faith in the system. Some accused may suffer from mental illnesses or think of imprisonment as a badge of honour even if they are not guilty or may have a valid defence. It is possible for guilty plea wrongful convictions to be corrected,55 but this process often depends on the discovery of new evidence. This may be next to impossible where the person who pleaded guilty is still imprisoned or the new evidence may be in foreign lands and protected by secrecy.

D. Summary Applying Clive Walker’s broad definition of miscarriages of justice to t­errorism laws and prosecutions reveals a lengthy list of substantive and procedural 52 This has also occurred with respect to two young accused who were acquitted of various terrorism offences in 2017, but subsequently agreed to a year-long peace bond on the basis that the state had established a reasonable fear that they would commit terrorism offences without various restraints such as not leaving the country, and not possessing material promoting terrorism or extremist religious ideals being placed upon them. ‘Montreal couple cleared of terror charges agree to peace bonds’ CBC News (4 May 2018), available at: www.cbc.ca/news/canada/montreal/ montreal-couple-djermane-jamali-conditions-1.4648816 53 See ch 13 (McKay) in this collection. 54 A Carling, ‘A Way to Prevent Indigenous Overrepresentation: Prevent False Guilty Plea Wrongful Convictions’ (2017) 64 Criminal Law Quarterly 415. 55 For arguments that the risk of wrongful convictions counsels against the use of the death penalty in terrorism cases, see McCartney and Walker, ‘Enemies of the State’ (n 24). The Supreme Court of Canada has held that extradition without assurances that the death penalty would not be applied is unconstitutional largely because of the risk of wrongful convictions. United States v Burns [2001] 1 SCR 283.

Defining Miscarriages of Justice  199 ­ eficiencies that may result in injustice. This then raises the question of why d miscarriages of justice as notorious as the Irish cases have yet to emerge in the post-9/11 era. One possible answer is that it is simply too soon. The new evidence that is generally necessary to overturn convictions has not emerged. Such evidence may exist in foreign lands or it may be protected by broad claims of state secrecy. This is an optimistic hypothesis because it assumes that criminal justice errors in the terrorism context will eventually be discovered. A bleaker hypothesis, however, is that terrorism offences have been defined so broadly and possible defences so narrowly, that democracies in the post-9/11 era have come perilously close to defining innocence in terrorism prosecutions out of existence. Either hypothesis, however, should temper enthusiasm or confidence in counter-terrorism strategies focused on criminalisation.

III.  Non-Criminal Interventions and Miscarriages of Justice One of the strengths of Walker’s definition of a miscarriage of justice is that it applies to many alternatives to the criminal law. Counter-terrorism often uses such alternatives in part to avoid the criminal justice system’s concern about false positives as represented by the reasonable doubt standard and requirements for public evidence.56 An open question, however, is how well discourse and learning about miscarriages of justice can be applied outside the criminal justice context. Many alternatives to the criminal prosecutions such as the use of control orders in the community, no-fly listing, travel bans, exclusion orders, passport revocations and immigration detention are based on allegations that a person is a security risk. It will be difficult for those subject to such interventions to demonstrate that they are innocent of being a security risk. Certainly, there have been some well publicised cases where children or well-known people have been wrongly placed on no-fly lists.57 Public concern about such cases, however, is also consistent with a factual innocence model because most of the known cases of false positives in no-fly listing involve young children or famous politicians who most people readily accept are not security risks. In other cases, however, those who have been wrongly listed may suffer from continued suspicion and stigma even if they are de-listed. They may also not be de-listed because of the breadth, lack of transparency and procedural deficiencies of the rules and processes used for listing. This again affirms the utility of Walker’s broad approach to miscarriages

56 On the concept of substitution effects in counter-terrorism, see Roach, Comparative CounterTerrorism Law (n 9) 11–12. 57 Gregory Krieg, ‘No fly nightmares: The program’s most embarrassing mistakes’ CNN (7 December 2015), available at: www.cnn.com/2015/12/07/politics/no-fly-mistakes-cat-stevens-tedkennedy-john-lewis/index.html.

200  Kent Roach of justice and the limits of narrower definitions of miscarriage of justice based on factual innocence.

A.  Indeterminate Detention There have been some post-9/11 successes in challenging alternatives to the criminal sanction including the Belmarsh litigation and similar due process challenges to indeterminate immigration detention in Canada.58 At the same time, however, these successful legal campaigns resulted not in the simple release of the detainees as occurred in the Irish wrongful conviction cases, but in the detainees being subject to new, albeit more proportionate, restrictions on their liberty in the form of control orders The Belmarsh detainees were subject to the first control orders deployed in 2005 and the security certificate detainees in Canada were also subject to gradual release into the community subject to strict controls.59 Such an approach can confirm suspicions about the detainees and is at odds with the restrictive model of factual innocence. Continued community control denies the detainees and the public the clear and cathartic image of the wrongfully convicted walking free from a prison or a courtroom. In both Canada and the United Kingdom there were some civil society campaigns to support those subject to indeterminate immigration detention after 9/11. Some of these campaigns had echoes of those that accompanied the pre-9/11 Irish and other wrongful convictions in their attempts to name and humanise the detainees.60 What is notable, however, is that the release of the Belmarsh detainees or the Canadian security certificate five was conditional. It was accompanied by continued state suspicion and control of the detainees through restrictive control order or bail conditions. For example, Abu Qatada was released first on bail and then control order conditions that included electronic monitoring, strict curfews and a ban on the use of mobile phones or the internet.61 Similar conditions were also imposed on Adil Charkaoui,62 the lead litigant in the case that established the unconstitutionality of Canada’s security certificate regime. This meant that while it was accepted that the detainees’ rights had been violated by indeterminate detention, they did not easily fit into a limited factual innocent or ‘wrong man’ model as the Birmingham Six and the Guildford Four did. This both confirms the importance of Walker’s broad and rights-based approach to understanding

58 A v Secretary of State (n 29); Charkaoui v Canada (Citizenship and Immigration) [2007] 1 SCR 350. 59 Walker, Terrorism and the Law (n 44) 7.10; Charkaoui v Canada (n 58). 60 ‘Protest over Belmarsh detainees’ BBC News (4 April 2004), available at: news.bbc.co.uk/2/hi/uk_ news/3596779.stm. See also a Canadian documentary named ‘The Secret Trial 5’ at: secrettrial5.com that deals with five men subject to indeterminate immigration detention because the executive alleged they were threats to the security of Canada. 61 ‘Eight terror detainees released’ BBC News (11 March 2005), available at: news.bbc.co.uk/2/hi/ uk_news/4338849.stm. 62 Re Charkaoui [2005] FC 248.

Defining Miscarriages of Justice  201 miscarriages of justice and the limits of more restricted but widely accepted definitions confined to factual innocence.

B.  Targeted Killing Another counter-terrorism measure has been the increased use of targeted killing by drones. Targeted killing is driven by secret intelligence that is subject to no outside adversarial challenge. American courts have resisted attempts to judicially review targeted killing, effectively precluding due process/proportionality review that would require reasonable measures be taken to prevent false positives.63 The Obama Administration released statistics that admitted between 64 and 116 non-combatants had been killed in drone strikes between 2009 and 2015 when between 2,372 and 2,581 targets were killed.64 These statistics were challenged by many as under-reporting and based on an over-broad definition of legitimate targets. One report suggested that between 384 and 807 innocent people were killed under Obama in Pakistan, Yemen and Somalia alone. The Trump Administration has eased the rules with new reports suggesting even higher levels of false positives that kill innocent persons.65 Targeted killing is a new counterterrorism instrument that, unlike criminal prosecutions, accepts false positives or ‘collateral damage’ as inevitable. The most famous target killed was Anwar al-Awlaki, an American citizen and preacher of Islam who inspired many terrorists and was alleged to be affiliated with terrorist groups. The Awlaki case is well known for these reasons but also because about a week after he was killed, his 16-year-old son, Abdulrahman al-Awlaki and his 17-year-old cousin66 were killed in a separate CIA strike that killed five others. This second strike is one of those that the US has accepted as killing non-­combatants that they had not targeted. Scott Shane has described how that mistaken killing of Anwar al-Awlaki’s son was a political and strategic blow to the United States and to the president himself … Killing Abdulrahman demolished the claim, already battered, that the drone operators had such crisp video of a potential target, and such leisure to study it, that they could know just whom they were killing and strike with precision.67

When informed about the killing, ‘Obama was furious, instantly understanding that the killing of a teenager would taint the counterterrorism strikes in Yemen’.68 63 Al-Awalki v Obama 727 F Supp 2d 1 (DC, 2010). 64 United States Department of Defence, 2016 Summary of Information Regarding US Counterterrorism Strikes Outside Areas of Active Hostilities, available at: www.dni.gov/files/ documents/Newsroom/Press%20Releases/DNI+Release+on+CT+Strikes+Outside+Areas+of+ Active+Hostilities.PDF. 65 ‘Giving the deep state even more leeway to kill with drones’ (The Atlantic, 22 September 2017). 66 S Shane, Objective Troy: A Terrorist, a President, and the Rise of the Drone (New York, Tim Duggan Books, 2015) 294 ff. 67 ibid 295. 68 ibid.

202  Kent Roach Targeted killings may increase under Trump, but also become less discriminating and more secretive. Indeed, Anwar al-Awlaki’s eight-year-old daughter Nawar was killed, along with a reported 14 militants, 10 women and children and a US commando, in the first military operation authorised by Trump as President in January 2017 in southern Yemen.69 The increased secrecy of the Trump Administration surrounding this operation and targeted killing could decrease the ability of civil society to mobilise on these issues and to contribute to reform processes. At the same time, real or imagined false positives that result in killing innocent Muslim women and children seem to be a frequently cited motivating factor for many terrorists.70 Because of their severe consequences, false positives in targeted killing can be more readily acknowledged as miscarriages of justice than false positives in other forms of preventive measures. The killing of Anwar al-Awlaki’s eight-year-old daughter and 16-year-old son fits into a restrictive factual innocence paradigm more readily than other false positives, including the thousands of Muslim men who were subject to immigration detention in the US under ­pre-textual policies used to hold male citizens from certain countries until they were cleared as not being security risks. The clear-cut false positives in targeted killing cases illustrate both the selectivity and the power of the factual innocence model. Viewing so-called ‘collateral damage’ through a miscarriage of justice lens can be useful in humanising what might otherwise only be seen as a faceless and less than human enemy ‘other’. It could also assist in stimulating reforms that might increase the reliability of the intelligence used and the accuracy of the intervention. At the same time, the language of false positives and factual innocence could also be seen as legitimating other forms of targeted killings that may still violate rights because of the substantive or procedural deficiencies in the targeted killing regime. Walker’s broad understanding of miscarriages of justice has the virtue of targeting both state caused harm to the factual innocent, like the killing of Anwar al-Awlaki’s daughter and son, but also the many substantive and procedural deficiencies in the American targeting killing programme. Alas, the public and the US government alike may only be concerned about the worst excesses of the programme that harm the clearly innocent. One of the concerns about the focus of Innocence Projects in the United States on factual innocence is that it may unintentionally legitimate the use of high penalties, systemic racial discrimination, cruel prison conditions and rights violations in the American criminal justice system when they are imposed on the factually guilty. The US government has accepted the conviction of the innocent

69 ‘Commando dies in US raid in Yemen, first military operation OK’ed by Trump’ (Reuters, 29 January 2017), available at uk.reuters.com/article/uk-usa-yemen-qaeda/commando-dies-in-u-sraid-in-yemen-first-military-op-okd-by-trump-idUKKBN15D094. 70 Thomas L Friedman, ‘America versus the Narrative’ New York Times (28 November 2009).

Defining Miscarriages of Justice  203 as a problem in enacting the 2004 Innocence Protection Act.71 Nevertheless, that Act is strictly tied to DNA testing that can prove factual innocence. It neglects broader criminal justice reforms including those that may restrict or end the use of the death penalty or take other measures to prevent or correct wrongful convictions in the majority of cases that will not involve DNA testing. Similarly, the US government (at least under President Obama) has accepted that it has made a number of mistakes in its targeted killing programme, but in a way that corresponds with the limited factual innocence model that focuses only on the most dramatic and clear-cut cases of injustice. There is, however, a danger that the focus on the miscarriage of justice inherent in the killing of the clearly innocent will divert attention from the many serious substantive and procedural deficiencies in the American targeted killing programme. Recognising the manifest injustice of killing or convicting the factually innocent should not be seen as a means of legitimating a process that produces many other less dramatic and clear-cut injustices.

C.  Two Canadian Cases: Maher Arar and Omar Khadr In Canada, the two most notorious examples of counter-terrorism excess in the post-9/11 era involve Maher Arar and Omar Khadr. Maher Arar was detained in the United States when he was returning to Canada from a business trip and rendered to Syria, where he was imprisoned for almost a year and tortured before he was released and allowed to return to Canada in 2003.72 Arar and his wife are educated and articulate and thus sympathetic to much of the public. The Canadian government appointed a two-year public inquiry that found that Canadian officials had communicated information to the US inaccurately linking both Arar and his wife to al-Qaeda. Justice O’Connor, the respected judge who ran the inquiry, declared the following: Mr Arar has never been charged with any offence in Canada, the United States or Syria … I have heard evidence concerning all the information collected about Mr Arar in Canadian investigations, and there is nothing to indicate that Mr Arar committed an offence or that his activities constitutes a threat to the security of Canada.73

Justice O’Connor also concluded that Canadian information linking Arar with terrorism was both unfair and inaccurate. As a result of these findings, the ­Canadian government paid Arar $10.5 million as a settlement. All three major

71 Public Law 108-405 (2004) amending 18 USC 3600. 72 Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Analysis and Recommendations (Ottawa, Supply and Services, 2006) chs 4 and 5. 73 Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of the Events Relating to Maher Arar (Ottawa, Supply and Services, 2006) 9. I disclose that I was a member of the Commission’s research advisory committee.

204  Kent Roach parties agreed to a House of Commons resolution apologising to Arar.74 The widespread (though not universal) support for Arar may be related to the fact that he was exonerated by the inquiry of having committed any offence or even being a security threat. Omar Khadr is part of a self-described and infamous al-Qaeda family. As a severely wounded 15-year-old, Omar Khadr was captured in Afghanistan where he was fighting American forces. He was detained and tortured at Guantanamo, but eventually pleaded guilty before an American military commission to five crimes including murder in violation of the laws of war. Khadr’s guilty plea bears many of the characteristics of guilty plea wrongful convictions. He had been subject to mistreatment in Guantanamo where he was detained for eight years when he pleaded guilty. His mental state was fragile. He had no reason to trust trial by his captors before a military commission. He received a significant guilty plea discount as a result of his plea, resulting in an eight-year sentence compared with the 40-year sentence that the commission of military officials gave him for killing and wounding American soldiers.75 Khadr is challenging his guilty plea as a wrongful conviction in part on the basis that the offences that he pleaded guilty to, such as material support of terrorism, conspiracy and murder, are not war crimes. The injustice of the American approach to combining the war crimes with criminal offences and stripping ‘unlawful combatants’, such as Khadr, of combatant immunity could also constitute a miscarriage of justice under Walker’s broad rights-based approach. It should be easier to depict Khadr’s conviction as wrongful given that Arar was never convicted of an offence. Khadr is clearly a victim of a miscarriage of justice under Walker’s broad definition given that the Supreme Court of Canada both in 2008 and 2010 found that Canadian officials had violated international law and the Canadian Charter of Rights and Freedoms when they questioned Khadr at Guantanamo, at a time when habeas corpus was not available to review his detention and when Khadr had been subject to sleep deprivation to make him more amenable to interrogation.76 Despite these rulings, however, many in Canada seem reluctant to accept that Omar Khadr is a victim of a miscarriage of justice. The Canadian government accepted analogies between Arar’s and Khadr’s cases when in June 2017 it gave Khadr an almost identical settlement to that received by Arar in 2009.77 The settlement may have been identical, but the public and political reactions could not have been more different. A July 2017 public opinion revealed 71 per cent public opposition to the settlement with Khadr.78 Canada’s 74 Ian Austen, ‘Canada reaches settlement with torture victim’ New York Times (26 January 2007). 75 Michelle Sheppard, ‘Eight years later, a guilty plea by Omar Khadr’ Toronto Star (26 October 2010). 76 Khadr v Canada [2008] 2 SCR 125; Khadr v Canada [2010] 1 SCR 44. 77 Martin Patriquin, ‘The Khadr and Arar Settlements are more alike than the Conservatives want you to think’ (I Politics, 10 July 2017), available at: ipolitics.ca/2017/07/10/the-khadr-and-ararsettlements-are-more-alike-than-conservatives-want-you-to-think. 78 Angus Reid, ‘71% of Canadians say Government made the wrong call in settling out of court with Khadr’ (10 July 2017), available at: angusreid.org/omar-khadr-compensation.

Defining Miscarriages of Justice  205 official opposition, the Conservative Party, is determined to make the settlement an important issue in the next general election. They have also championed the case of the family of the American soldier that Khadr pleaded guilty to killing in Afghanistan. Speer’s family had previously secured a $130 million civil judgment in an American federal court against Khadr. The Speer family has indicated that they will seek to enforce that judgment in Canada against Omar Khadr.79 The causes of the different reactions to the Arar and Khadr cases are complex. The unpopularity of Khadr’s family, the presence of sympathetic victims and Khadr’s guilty plea all play a role. In contrast, the O’Connor inquiry was widely perceived as exonerating Arar as innocent and Maher Arar and his wife are generally regarded as sympathetic figures. Arar’s case fits much more easily into the restrictive factual innocence paradigm than Khadr’s. My point is not to defend factual innocence as the exclusive definition of a miscarriage of justice, let alone the different reactions to the settlement. Indeed, the different reactions illustrate how the factual innocence model is underinclusive and even arbitrary with respect to rights violations. It also demonstrates how the factual innocence paradigm is also based on the restrictive and even discriminatory notion that victims of injustice must be innocent of any wrong­doing. Nevertheless, and notwithstanding Professor Walker’s compelling arguments, the public is often reluctant to accept all rights violations and guilty pleas under unjust laws and unjust processes as miscarriages of justice. This, of course, does not mean that academics and activists should not follow Walker in using broader rights-based understanding of miscarriages of justice and injustice.

Conclusion Professor Walker’s broad definition of a miscarriage of justice first articulated in the 1990s was informed by his understanding of the breadth of injustice in Northern Ireland in the 1970s and 1980s. It provided a prescient template for evaluating a range of post-9/11 counter-terrorism measures including over-broad terrorism offences, non-criminal interventions ranging from control orders to targeted killing and the failure to hold security officials accountable for a range of human rights abuses. All of this demonstrates what Clive Walker has always understood: 9/11 did not change everything and that miscarriages of justice especially in the counter-terrorism field are pervasive, long-standing and take many forms. Walker’s definition also provides some potent tools to combat such injustices. Characterising immigration and military detention, control orders and targeted killing as miscarriages of justice can help humanise the enemy/other and

79 Aaron Wherry, ‘Liberals Defend and Conservatives Attack Omar Khadr Settlement’ CBC News (7 July 2017), available at: www.cbc.ca/news/politics/omar-khadr-settlement-goodale-scheer-analysiswherry-1.4194912.

206  Kent Roach encourage reforms designed to minimise the risk of error and false positives and to ensure a greater and more proportionate respect for rights. Although Professor Walker’s broad and right-based definition of a miscarriage of justice provides a compelling normative basis for criticising unnecessary false positives in counter-terrorism, its reception in the law and in civil society has been uneven. Despite large numbers of terrorism prosecutions in many democracies, we have yet to see any post-9/11 wrongful convictions attain the notoriety or reform response as the 1990s Irish wrongful convictions. Some might argue that it is too soon to expect such wrongful convictions to have emerged, but a more likely hypothesis is that broad post-9/11 offences have defined innocence out of existence and both courts and civil society have been resistant to accepting that broad terrorism offences violate rights. The paradigm of factual innocence has grown stronger in the post-9/11 era. Trends in popular culture, including the development of bright-line distinctions between offenders and victims and a decline of interest in rehabilitation, have also played a role. The factual innocence paradigm offers little hope for most accused including almost all those prosecuted under broad inchoate terrorism offences. This also raises concerns about whether criminalisation strategies are as fair and rights regarding as many, including, Walker have hoped. That said, they might still be preferable to other alternatives to the criminal sanction. There is some evidence the rhetoric of miscarriage of justice can be deployed against false positives with respect to blatantly erroneous no-fly or terrorist listings, renditions, military and immigration detention and targeted killings. A few extreme and emotive injustices in these areas have become cause celebres in a manner associated with miscarriages of justice in the Irish cases, even though the lack of due process and the use of over-broad liability rules in even less extreme applications of these alternatives to the criminal sanction could also be classified as miscarriages of justice under Walker’s broad rights-based approach. Unfortunately, the few cases in the post-9/11 era that have been recognised as miscarriages of justice seem consistent with the more limited factual innocence model that Walker persuasively argues is radically under-inclusive in its approach to injustice. For example, children and famous people placed on no-fly lists attract attention and sympathy in part because it is widely accepted that they must be innocent. As discussed above, the killing of Anwar al-Awlaki’s eight-year-old daughter and 16-year-old son and the rendition of Maher Arar are also widely accepted as post-9/11 miscarriages of justice. The recognition of miscarriages of justice in the above cases is a limited cause for celebration. Even sympathetic cases such as Omar Khadr who was tortured before pleading guilty in an unjust military commission process at Guantanamo can be controversial when they are treated as genuine miscarriages of justice that merit extensive compensation. The Khadr case encountered much more opposition than the Arar case in Canada, despite the fact that the Supreme Court of Canada had twice ruled that Canadian officials had violated Khadr’s rights by interrogating him at Guantanamo and that he pleaded guilty in a successful attempt to escape

Defining Miscarriages of Justice  207 a substantive and procedurally unjust process at Guantanamo. Nevertheless, the Khadr case did not as easily fit a factual innocence model as the Arar case. The same is true for terrorist suspects subject to indeterminate immigration ­detention in both the UK and Canada after 9/11. They won significant court cases that confirmed that their rights were violated, but they did not fit into the factual innocence model in part because the state continued to restrain them through control orders after they were released from prison. Democracies ignore false positives in counter-terrorism at their peril. False positives are an important reminder of the humanity of all those targeted for a particular counter-terrorism intervention. Such reminders are particularly important when suspected terrorists are defined as ‘enemies of the state’80 and when they come from marginalised, feared, discriminated against and poorly understood groups. Recognition of miscarriages of justice can stimulate reform cycles where counter-terrorism measures become more rights regarding and where victims of false positives receive compensation and other remedies. If democracies suppress or ignore false positives in counter-terrorism or define them away with inflated liability rules, they risk giving away moral ground that allows them to differentiate terrorism that harms the innocent from counterterrorism that should make all reasonable efforts to only target the guilty. Even on a pragmatic basis, false positives – especially the so-called collateral damage of targeted killings – seem to be a recurring feature in terrorist propaganda that attempts to motivate people to strike back with indiscriminate violence. There is a danger of a vicious circle in which the harms that terrorists inflict on the innocent provoke state harms to the innocent as well as measures that disproportionally infringe rights. All of this confirms the wisdom of both Clive Walker’s broad definition of a miscarriage of justice and his sterling example of studying both miscarriages of justice and counter-terrorism as two interrelated and vitally important subjects.



80 McCartney

and Walker, ‘Enemies of the State’ (n 24).

208 

13 The Doctrine of Public Interest Immunity and Fair Trial Guarantees simon mckay Introduction A criminal trial determines the guilt or innocence of the defendant. The law requires the prosecution, amongst other things, to disclose in advance of the trial, not just the evidence it relies on to support its case, but any material it holds that undermines this or otherwise assists the defence. This is known as the ‘disclosure exercise’. It is not a single event but an ongoing duty. If it is not undertaken correctly, justice is at risk of miscarrying. Richard Foster, the head of the Criminal Cases Review Commission (CCRC), the organisation with responsibility for investigating potential miscarriages of justice has said disclosure is ‘the single biggest problem affecting the right to a fair trial’.1 This problem is even more acute where the material is sensitive, such that its disclosure would damage an important public interest. When this arises, the doctrine of public interest immunity (PII) is engaged and it is open to the prosecution to make an application to the relevant court for an order determining whether, in the circumstances of the case, disclosure can be suppressed. Once the question of PII arises, a procedure, governed in part by statute, common law principles, rules and informal convention, exists to manage the application. It is a departure from open justice and, as such, originally conceived as a procedure adopted in only exceptional cases. This chapter argues, amongst other things, that there has been a degree of normalisation of the use of the doctrine, such that its use is now commonplace. Nearly two decades ago Walker and Robertson argued: A powerful case can be made that PII claims are both unnecessary and undesirable in the criminal justice system. How can government ministers make judgments about what material is of relevant to the defence … Where the prosecution seek to withhold

1 CCRC, Press Release – Comment piece by CCRC Chair Richard Foster, available at: ccrc.gov. uk/comment-piece-by-ccrc-chair-richard-foster-written-at-request-of-daily-mail-on-22-december2017-but-unused.

210  Simon McKay material … they should be put to proof in the ordinary way, by calling witnesses and leaving them open to cross-examination … biased assumptions and opinions … can at least be challenged directly and openly.2

This statement remains as topical, if not more so, today as it was then, particularly in the context of national security cases. This chapter will examine the evolution of the doctrine, the human rights context and the procedural position in domestic law before setting out where the vulnerabilities and future challenges might lie.

I.  The Evolution of PII: Law and Practice PII was defined by Lord Templeman in R v Chief Constable of West Midlands Police, Ex parte Wiley as a ground for refusing to disclose a document which is relevant and material to the ­determination of issues involved in civil or criminal proceedings … [it] can only be justified if the public interest in preserving the confidentiality of the document outweighs the public interest in securing justice.3

It is unquestionably an element of the law of evidence4 and, unsurprisingly, since it involves the non-disclosure of relevant material from an accused person, it engages the common law right to a fair trial and Article 6 of the European Convention on Human Rights (ECHR). The origins of PII are found, not in criminal but civil justice. However, it has long been established as having some application, in certain circumstances, to criminal proceedings, most notably the protection of an informant’s identity.5 In 1999, Walker and Robertson noted that the categories of public interest that may give rise to a claim in criminal proceedings PII have ‘proliferated in recent years’.6 In D v National Society for Prevention of Cruelty to Children Lord Hailsham considered they may do so ‘whether by restriction or extension as social conditions and social legislation develop’,7 although it was later held that this should only be where ‘clear and compelling evidence’ exists.8 By its very nature non-disclosure of relevant material inexorably increases the risk of justice miscarrying and the modern evolution of the doctrine of PII has largely been in response to domestic (ie, UK) cases where convictions were quashed as a result of its misuse or adverse 2 C Walker and G Robertson, ‘Public Interest Immunity and Criminal Justice’ in C Walker and K  Starmer (eds), Miscarriages of Justice: A Review of Justice in Error (London, Blackstone Press, 1999) 181. 3 R v Chief Constable of West Midlands Police, Ex parte Wiley [1995] 1 AC 274, 280. For a detailed history of its evolution, see in particular the speech of Lord Woolf, 288–303. 4 C Tapper, Cross & Tapper on Evidence, 12th edn (Oxford, Oxford University Press, 2010) 479–501. 5 Marks v Beyfus [1890] 25 QBD 494. 6 Walker and Robertson (n 2) 171. 7 D v National Society for Prevention of Cruelty to Children [1978] AC 171, 230. 8 Ex parte Wiley (n 4) 305 (Lord Woolf).

The Doctrine of PII and Fair Trial Guarantees  211 judgments in the European Court of Human Rights (ECtHR) examining its application in the context of minimum fair trial guarantees. Some codification of the procedural aspects of applications for PII followed in the aftermath of acute miscarriages of justice, including the cases of R v Judith Ward,9 R v Davis, Johnson and Rowe10 and the Matrix Churchill case, which was the impetus behind the Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and Related Prosecutions, or the ‘Scott Report’.11 Prior to these cases non-statutory guidance existed in the form of the Attorney General’s Guidelines (1981),12 which endowed the prosecutor with discretion to withhold disclosure of sensitive material on public interest grounds. The position changed following Ward, the Court of Appeal holding that the prosecutor in exercising discretion was acting as a judge in her own cause and that in future the trial judge should determine the question of disclosure. The PII procedure evolved further following Davis, Rowe and Johnson otherwise known as the ‘M25 Three’ (the case concerned the commission of a murder and a series of robberies in the location of a section of the M25). One witness who gave evidence against the men was in fact a paid police informer who had received a substantial payment (in excess of £10,000) for the information that led to the applicants’ arrests. The Crown withheld this fact from the defence. On appeal, the court upheld the decision to withhold the evidence but conceived three types of application under which PII could be determined in the future. The first procedure (Type 1), which had generally to be followed, was for the prosecution to give notice to the defence that they were applying for a ruling by the court and indicate to them at least the category of the material which they held. The defence then had the opportunity to make representations to the court on limited material disclosed. The second procedure (Type 2) arose where the disclosure of the category of the material in question would in effect reveal that which the prosecution contended should not be revealed; the prosecution should still notify the defence that an application to the court was to be made, but the category of the material need not be disclosed, and the application should be without notice.  The third procedure (Type 3) would apply in an exceptional case where to reveal even the fact that a without notice application was to be made would in effect be to reveal the nature of the evidence in question. In such cases the prosecution should apply to the court without notice to the defence. The Criminal Procedure and Investigations Act 1996 (CPIA 1996) placed aspects of the procedure on a statutory basis. A prosecutor could not disclose ­material if a court ordered it would be contrary to the public interest13 and

9 R v Judith Ward (1992) 96 Cr App R 1. 10 R v Davis, Johnson and Rowe [1993] 1 WLR 613. 11 Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and Related Prosecutions (1995–96, HC 115). 12 (1982) 74 Cr App R 302. 13 Criminal Procedure and Investigations Act 1996 (CPIA 1996), s 3(6).

212  Simon McKay a  person affected by non-disclosure had the right to be heard in respect of it.14 A statutory duty was imposed to keep any decision under review in summary and other cases.15 In due course, the Criminal Procedure Rules provided for the procedure that had to be followed.

II.  PII and the ECHR It is an uncontroversial statement that the issue of disclosure is an essential ­ingredient of the right to a fair trial under Article 6 ECHR. In Jespers v Belgium16 the Commission exhaustively considered the principle of equality of arms in the context of pre-trial disclosure concluding that: In short [Article 6] recognises the right of the accused to have at his disposal, for the purposes of exonerating himself or of obtaining a reduction in sentence, all relevant elements that have been or could be collected from competent authorities … if the element in question is a document, access to that document is a necessary facility if … it concerns acts of which the defendant is accused, the credibility of testimony etc.17

In R v Stratford Justices, ex parte Imbert18 Buxton LJ sought to emphasise that the right to pre-trial disclosure was not absolute. This is of course technically correct but in Jespers the Commission was of the view that it ‘mattered little’. Pre-trial disclosure of all potentially and actually exculpatory material is of intrinsic importance to a fair trial in Convention terms. The minimum fair trial guarantees under the ECHR include the right to a fair and public trial in the determination of a criminal charge. It also requires observance of the principle of equality of arms. This places an obligation on the prosecuting and investigating authorities to disclose any material in their possession (or to which they could gain access) that may assist the accused either in defending himself or mitigating his circumstances. The duty is not confined to material the prosecution seeks to rely on. Further, the right to adversarial procedure in criminal matters is recognised as both substantive and procedural in nature. The approach the Strasbourg court takes to assessing the propriety of criminal proceedings against ECHR standards is pervasive; it will ask whether the proceedings as a whole were fair notwithstanding that there may have been defects in the trial or appeal process. These standards are derived from a number of key cases including those discussed below.



14 CPIA

1996, s 16. 1996, ss 14 and 15, respectively. 16 Jespers v Belgium [1981] 27 DR 61. 17 ibid paras 57 and 58. 18 R v Stratford Justices, ex parte Imbert (Unreported) DC, 8 February 1999. 15 CPIA

The Doctrine of PII and Fair Trial Guarantees  213

A.  Edwards v UK In Edwards v United Kingdom19 the applicant was convicted of robbery based primarily on his own incriminating statements to the police. He alleged that the admissions were fabricated. On appeal (following a reference back by the Secretary of State to the Court of Appeal), the applicant submitted that during his trial the prosecution had committed two acts of material non-disclosure under the veil of PII. The first was a claim by one of the officers in the case that no fingerprints had been found at the scene of the robbery (in fact two prints were found but these were from a frequent visitor to the house). The second related to the victim’s claim that she could identify the perpetrator as she had caught a glimpse of him during the offence. Her statements were read out to the jury by agreement. However, it emerged subsequently that she had been shown a photograph album by police that included the applicant’s picture and had not identified him. The Court of Appeal had been able to consider the evidence on the appeal but upheld the conviction. The Strasbourg court, by majority, held that there had been a defect in the trial process but because the Court of Appeal had assessed that it did not impact on the safety of the conviction it was satisfied there had not been a violation of Article 6. The judgment in Edwards was notoriously not unanimous. In a dissenting judgment, frequently referred to by practitioners and commentators alike, Judge Pettiti cautioned that the decision was not an endorsement of the compatibility of the doctrine of PII with Article 6: [Public interest immunity] in English law allows the prosecution, in the public interest, not to disclose or communicate to the defence all the evidence in its possession and to reserve certain evidence … The court made no express statement of its views on this point and its silence might be understood as approval of this principle, which is not the case … once there are criminal proceedings and an indictment the whole of the evidence, favourable and unfavourable to the defendant, must be communicated to the defence … under the European Convention an old doctrine such as that of ‘public interest’ must be revised in accordance with Article 6.20

B.  Rowe and Davis v UK The dissenting opinion of Judge Pettiti was rejected in the later decision in Rowe and Davis v United Kingdom21 as well as others. In Strasbourg, it was argued that the three-stage approach to public interest immunity applications that was introduced following their unsuccessful domestic appeal was incompatible with Article 6 ECHR. The applicants argued that procedural safeguards in the form



19 Edwards

v United Kingdom (1993) 15 EHRR 417. 433–35. 21 Rowe and Davis v United Kingdom (2000) 30 EHRR 1. 20 ibid

214  Simon McKay of special counsel ought to be introduced to make the system compliant. These lawyers would be vetted and would represent the interests of the defence during any hearing where the defence was excluded. The applicants referred to a number of examples of the special advocates procedure in other contexts (such as employment discrimination cases in Northern Ireland and special immigration appeals). The court, although finding a violation of Article 6 on the facts, was not persuaded that special advocates were the answer and departures from a public trial could be justified in limited circumstances but it did emphasise that such restrictions on open justice had to be strictly necessary. The decision in Rowe and Davis is also significant as it moved away from the view expressed in Edwards that the Court of Appeal was equipped to remedy an unfairness caused by procedural irregularity at the trial stage. Unlike the trial judge, ‘the judges in the Court of Appeal were dependent for their understanding of the possible relevance … on transcripts and on the account of the issues given to them by prosecuting counsel’.22 The Court of Appeal’s assessment was ‘ex post facto and may even, to a certain extent, have unconsciously been influenced by the jury’s verdict of guilty into underestimating the significance of the undisclosed evidence’.23 This approach was adopted in the later case of Atlan v United Kingdom24 despite efforts by the government to draw a distinction between the two cases on the basis that the evidence in the latter was not demonstrably relevant to the defence case.

C.  Jasper v Fitt In Jasper and Fitt v United Kingdom25 the ECtHR considered the compatibility of the ‘type-two’ procedure adopted following the ruling in R v Davis, Johnson and Rowe discussed above.26 No violation of Article 6 arose but the division of the Court was nine votes to eight in favour of the United Kingdom. In Jasper the Court’s ruling is couched in the following terms: Whilst it is true that in a number of different contexts the United Kingdom has introduced, or is introducing, a ‘special counsel’, the court does not consider that such a procedure was necessary in the present case … the material which was not disclosed in the present case formed no part of the prosecution case whatever and was never put to the jury … Moreover, it can be assumed – not least because the Court of Appeal confirmed that the transcript of the ex parte hearing showed that [the trial judge] had been ‘very careful to ensure and to explore whether the material was relevant, or likely to be relevant to the defence which had been indicated to him’– that the judge applied



22 ibid

23 ibid.

30.

24 Atlan

v United Kingdom (2001) 34 EHRR 33. v United Kingdom (2000) 30 EHRR 441; Fitt v United Kingdom 480. 26 [1993] 1 WLR 613. 25 Jasper

The Doctrine of PII and Fair Trial Guarantees  215 the principles which had recently been clarified by the Court of Appeal … the Court of Appeal also considered whether or not the evidence should have been disclosed, providing an additional level of protection for the applicant’s rights.27

The dissenting judges opined that the absence of ‘special counsel’ was fundamentally unfair as it did not ‘respect the principles of adversarial proceedings and equality of arms … [and] the way in which the United Kingdom courts dealt with the sensitive material in the present case was not satisfactory’.28 The minority expressed the view that the practical problems raised by the UK could be solved and any concerns about confidentiality could be accommodated ‘at the same time as according the individual a substantial measure of procedural justice’.29 The Court of Appeal, on hearing the further appeal in Rowe and Davis30 following their successful Strasbourg petition (and two months after the judgment in Jasper and Fitt), held that the way the English courts dealt with PII hearings was unaffected by the rulings from the ECtHR. In 2001, the Review of the Criminal Courts in England and Wales31 by Lord Justice Auld (the Auld Report) considered the issue of PII and recommended the introduction of ‘special’ or ‘disclosure’ advocates. The government rejected this recommendation on Jasper and Fitt grounds.

D.  Edwards and Lewis v UK The next major development was in Edwards and Lewis v United Kingdom.32 These conjoined cases both involved the deployment of covert policing resources as part of separate investigations into serious criminal offences. In Edwards the applicant had been the target of an elaborate undercover operation involving a number of individuals and which resulted in his being in possession of 4.83 kilograms of heroin. He was charged and later convicted of possession with intent to supply and received a prison term of nine years. Prior to the trial a type-two application was made (at the time in accordance with the Court of Appeal’s judgment in R v Davis, Johnson and Rowe). The judge – who was not the trial judge – held that the material, which was the subject of the application, properly attracted immunity from disclosure of public interest grounds. The trial judge, who by then had a document from the defence outlining the issues in the case, subsequently reconsidered the ruling. The judge also heard oral arguments from defence counsel. The original decision was upheld. An application was then made by the defence seeking to exclude the evidence of the

27 (2000) 30 EHRR 441, para 56. 28 ibid Dissenting Opinion. 29 ibid. 30 Reported in The Times (24 April 2000). 31 A Review of the Criminal Court of England and Wales (London, Her Majesty’s Stationery Office, October 2001) (the Auld Report). 32 Edwards and Lewis v United Kingdom (2005) 40 EHRR 593.

216  Simon McKay undercover officer on entrapment grounds. This was also rejected. The judge indicated that there was nothing in the without notice PII hearing that would have assisted the defence case; if there had been, he would have ordered disclosure. On appeal, the Court reviewed the material and upheld the judge’s ruling, observing that ‘each one of us reached the clearest possible view that nothing in the documents withheld could possibly have assisted the defence at trial; indeed quite the reverse’.33 In Lewis the applicant had also been the subject of a police undercover operation. There was evidence that the police had ‘actively encouraged’ and ‘pressurised’ the applicant to engage in criminal activity revolving around counterfeit notes. He sought a stay of the indictment on the ground that to continue with the prosecution would amount to an abuse of the court’s process because of the activities of the officers and because the ‘moral integrity of the criminal proceedings had been impugned’.34 Prior to ruling, the judge heard a without notice application by the prosecution to withhold material on public interest grounds. The judge accepted the material was properly immune from disclosure and also ruled against the defence application. An attempt to exclude the evidence was abandoned since many of the matters on which the defence sought to cross-examine fell within the scope of the ruling on public interest immunity. There was no appeal against the conviction as defence counsel expressed the view subsequently that there were no grounds on which to base an appeal. The ECtHR referred to the Auld Report. That part of the report dealing with public interest immunity was quoted extensively. Auld LJ’s specific recommendation in the context of PII was in the following terms: I recommend the introduction of a scheme for instruction by the court of special independent counsel to represent the interests of the defendant in those cases at first instance and on appeal where the court now considers prosecution applications in the absence of the defence in respect of the non-disclosure of sensitive material.35

In an earlier paragraph, Auld LJ clearly identified that ‘such cases are extremely rare’ but that the appointment of special counsel could ‘in part fill a lacuna in the law’.36 The government argued that there was no distinction between the present cases and the Strasbourg court’s decision in Jasper and therefore there was no violation of Article 6 ECHR. The applicants asserted that a distinction with Jasper was possible because there was no allegation of entrapment in that case. In Lewis, it appeared that the undisclosed material was positively damaging to the accused’s allegations of entrapment, which he had the burden of proving and which the judge had to decide, but the defence remained ignorant of the nature or



33 ibid

para 22. para 26. 35 ibid para 44. 36 ibid para 196. 34 ibid

The Doctrine of PII and Fair Trial Guarantees  217 content of the evidence placed before the judge and was unable to challenge it. In forming its view, the Strasbourg court recognised the impossibility of it deciding whether or not either applicant was the victim of entrapment since the relevant information was not disclosed to it. Its approach was to look at the procedure whereby the defence argument of entrapment was determined in each case to ensure the rights of the defence were adequately protected. The court accepted that there was a distinction between Jasper and the present cases. Having emphasised that it is the role of the jury not the judge to determine issues of fact, the court referred to the fact that ‘it appears that the undisclosed evidence related or may have related to an issue of fact decided by the trial judge’.37 The applications ‘were of determinative importance to the applicants’ trials and the public interest immunity evidence may have related to facts connected with those applications’.38 Because the defence had been denied access to the material, in the court’s opinion it was not possible for them to argue the entrapment point fully before the judge. The court concluded that the procedure used to determine the disclosure of evidence and entrapment material failed to comply with Article 6.1 and found for the applicants. Edwards and Lewis was later considered in what remains the leading authority on PII, R v H & C,39 considered below.

III.  PII: The Current Position in England, Wales and Northern Ireland In R v H & C the Court of Appeal addressed the domestic effect of the decision of Edwards and Lewis. The case was an interlocutory appeal from a decision to hold a hearing without notice in order to deal with a PII application by the prosecution. This related to material arising out of the deployment of covert surveillance resources authorised under the Regulation of Investigatory Powers Act 2000 (RIPA) and whether the appointment of special counsel was necessary to bring an adversarial element to the process. It was submitted that the hearing in relation to the authorisations for surveillance obtained under RIPA ought to be held in open court, in the presence of the defendant and his lawyers. The defence intended to invite the judge in due course to dismiss the case on the ground that the authorisation process was in some way defective. If the hearing took place without notice there would be inequality of arms. The defence did not feel that the appointment of special counsel would solve this problem. The Court of Appeal rejected the argument and the defence appeals were dismissed. Leave was granted to appeal to the House of Lords.40



37 ibid

38 ibid. 39 R 40 R

para 46.

v H & C (2003) EWCA Crim 2847. v H; R v C [2004] UKHL 3.

218  Simon McKay In the House of Lords their Lordships reiterated that in English law it was axiomatic that a person charged with a criminal offence should receive a fair trial.41 They also reminded themselves of the ‘cardinal and overriding requirement’42 that their determination of the appeals was consistent with Article 6 of the ECHR. In a rare moment of dark humour, reference was made to the memoirs of Hawkins J, who recounted a trial at the Old Bailey in the 1840s which lasted two minutes and 53 seconds and included the following direction to the jury on the question of the defendant’s guilt, ‘Gentlemen, I suppose you have no doubt? I have none’.43 Article 6 rights had however to be exercised within the framework of the administration of criminal law. The House relied on Lord Steyn’s eloquent definition of the purpose of the criminal law in Attorney General’s Reference (No 3 of 1999)44 in this connection: The purpose of criminal law is to permit everyone to go about their daily lives without fear or harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness on all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public.45

Their Lordships also emphasised that the consideration of ECHR rights did not take place in a vacuum and echoed Lord Hope’s remarks in Montgomery v HM Advocate46 that it was ‘not the purpose of Article 6 to make it impracticable to bring those who are accused of crime to justice’.47 The role of the judge and the other actors in the criminal trial process was summarised. Other than in the defined circumstances, such as during a voir dire, the judge is not a fact-finder. The judge ensures fairness and even-handedness. Their Lordships approved the reference in Randall v The Queen that the prosecutor’s role ‘is not to obtain a conviction at all costs but to act as a minister of justice’.48 The defence should not ‘invent a case for their client or pursue serious accusations in the absence of material to support them’.49 The domestic law relating to disclosure was set out. Their Lordships dealt with the amendment to the CPIA 1996 (now in force) that requires primary disclosure of any previously undisclosed material ‘which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting

41 R v Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 AC 42, 68; Attorney General’s Reference (No 2 of 2001) [2003] UKHL 68; [2004] 2 WLR 1, para 13. 42 R v H; R v C [2004] 2 AC 134, para 10. 43 ibid para 11. 44 Attorney General’s Reference (No 3 of 1999) [2001] 2 AC 91. 45 ibid 118. 46 Montgomery v HM Advocate [2003] 1 AC 641. 47 ibid 673. 48 Randall v The Queen [2002] UKPC 19; [2002] 1 WLR 2237, para 10 of the judgment. 49 ibid para 13 of the judgment.

The Doctrine of PII and Fair Trial Guarantees  219 the case for the accused’.50 The House then turned to public interest immunity and in particular the role of special advocates stating: There is as yet little express sanction in domestic legislation or domestic legal authority for the appointment of a special advocate or special counsel to represent, as an advocate in PII matters, a defendant in an ordinary criminal trial … Such an appointment however does raise ethical problems, since a lawyer who cannot take full instructions from his client, who is not responsible for his client and whose relationship with the client lacks the quality of confidence inherent in any ordinary lawyer–client relationship, is acting in a way hitherto unknown to the legal profession … The appointment is also likely to cause practical problems: of delay … of expense … and of a continuing review … Defendants facing serious charges frequently have little inclination to co-operate in a process likely to culminate in their conviction, and any new procedure can offer opportunities capable of exploitation to obstruct delay … Such an appointment will always be exceptional, never automatic; a course of last and never first resort.51

Their Lordships dealt with the Strasbourg jurisprudence at length, reconciling their opinion with the series of cases determined by the ECtHR on the issue. An absolute right to a special advocate on public interest immunity applications ‘place the trial judge in a straightjacket’.52 The courts in this jurisdiction have declared principles and applied them on a case-by-case basis whilst avoiding over-rigidity and inflexibility. In the opinion of the House, ‘there is no dissonance between the principles of domestic law and those recognised in Convention jurisprudence’.53 In resolving the issue when a possible derogation from the ‘golden rule of full disclosure’ arises, a series of questions should be asked:54 What is the material which the prosecution seek to withhold? This must be considered by the court in detail. Is the material such as may weaken the prosecution case or strengthen that of the defence? If No, disclosure should not be ordered. If Yes, full disclosure should (subject to (3), (4) and (5) below) be ordered. Is there a real risk of serious of serious prejudice to an important public interest (and, if so, what) if full disclosure of the material is ordered? If No, full disclosure should be ordered. If the answer to (2) and (3) is Yes (4) can a defendant’s interest be protected without disclosure or disclosure be ordered to an extent or in a way in which will give adequate protection to the public interest in question and also afford adequate protection to the interests of the defence? This question requires the court to consider, with specific reference to the material which the prosecution seek to withhold and the facts of the case and the defence as disclosed, whether the prosecution should formally admit what the defence seek to establish or whether disclosure short of full disclosure may be ordered. This may be done in appropriate cases by the preparation of summaries or extracts of evidence, or the provision of documents in an edited or anonymized form, provided the documents

50 CPIA,

s 3(1)(a) as amended by the Criminal Justice Act 2003, s 32. v H; R v C [2004] 2 AC 134, para 22. 52 ibid 33. 53 ibid. 54 These are restated in the Judicial Protocol, para 54. 51 R

220  Simon McKay supplied are in each instance approved by the judge. In appropriate cases the appointment of special counsel may be a necessary step to ensure that the contentions of the prosecution are tested and the interests of the defendant protected. In cases of exceptional difficulty the court may require the appointment of special counsel to ensure a correct answer to questions (2) and (3) as well as (4). Do the measures proposed in answer to (4) represent the minimum derogation necessary to protect the public interest in question? If No (5) the court should order such greater disclosure as will represent the minimum derogation from the golden rule of full disclosure. If the limited disclosure is ordered pursuant to (4) or (5), may the effect be to render the trial process, viewed as a whole, unfair to the defendant? If Yes, then (6) fuller disclosure should be ordered even if this leads or may lead the prosecution to discontinue the proceedings so as to avoid having to make disclosure. If the answer to (6) when first given is No (7) does that remain the correct answer as the trial unfolds, evidence is adduced and the defence advanced?55

Their Lordships emphasised the need for the trial judge to ‘bear constantly in mind’56 the overriding principles set out in their opinion. One of the advocates in C and H put the effect of the judgment in the following way: ‘following Edwards and Lewis the whole procedure [of PII applications] is under the spotlight in criminal courts up and down the country’.57 It remains a controversial issue in criminal proceedings, although since C and H the role of special counsel has been extended to include Parole Board hearings.58 The observations of the editor of Archbold on Edwards and Lewis (cited with approval by the Court of Appeal in C and H) will find resonance with some: How was it that the court concluded that there might have been material relevant to the issue of entrapment when the domestic courts had been unequivocal as to there being no such material? Enter Alice in Wonderland. The one part of the material of which the court was actually aware related to the drugs trial, and consisted of evidence that the defendant had been dealing in drugs on an occasion prior to the subject of the charge. The trial judge (unsurprisingly) took the view that this was not material which would help to make a case out of entrapment: and the Court of Appeal obviously agreed. But not the European Court. This was material, which the judge had seen and which may have influenced him against the defendant on the entrapment issue: but the defence had no opportunity to deal with it. The premise seems to be that judges are incapable of making decisions on the material legitimately placed before them by parties in open court. Whether or not there is any merit in such a view, this is a decision that is likely to have widespread ramifications, the most obvious of which is an impending upsurge in entrapment operations.

Alternatives to PII, in particular the use of confidentiality rings as conceived in R (Mohammed) v Secretary of State for Defence,59 have received mixed ­judicial

55 R

v H; R v C [2004] 2 AC 134, para 33, para 36. para 33, para 37. 57 [2003] 1 WLR 2006, para 76. 58 Roberts v Parole Board [2005] UKHL 45. 59 R (Mohammed) v Secretary of State for Defence [2013] 2 All ER 897. 56 ibid

The Doctrine of PII and Fair Trial Guarantees  221 comment: see AHK v Secretary of State for the Home Department60 and the Northern Ireland Crown Court case of R v Duffy and others.61

IV.  The Procedural Position The current framework, now set out in the Criminal Procedure Rules,62 still broadly mirrors the Court of Appeal’s judgment in Davis, Johnson and Rowe, and in particular the emphasis the court placed on the need for transparency and that the fullest possible disclosure ought to be made where possible. Where a typethree application had been made which, in the judge’s opinion, ought not to have been made, then she should direct that the matter be dealt with on notice.63 The prosecutor should not see the judge alone if there is no proper basis for doing so, but always in the presence of a shorthand writer64 and after ensuring that, as far as possible, all material has been reviewed.65 It is of paramount importance that the information provided to the judge is accurate.66 In R v Joe Smith67 the Court of Appeal had held that in assessing the lawfulness of arrest the judge is entitled to hear evidence that is the subject of a PII order in the absence of the defence and that this did not offend against the defendant’s rights under Article 6 ECHR. This was, however, overturned on appeal to the House of Lords.68 Where a nondisclosure order has been made in such circumstances, the defence can make an application for a review of the decision.69 The position under the Criminal Procedure Rules essentially retains the three types of application that could be made under the former regime: on notice without specifying the nature of the material that is the subject of the application if this would disclose that which the prosecutor thinks ought not to be disclosed;70 on notice omitting any part of the application that is to be served on the defence if to do otherwise would have the effect of disclosing that which the prosecutor contends should not be disclosed;71 and without notice where the fact of the application itself would reveal that which the prosecutor contends should not be disclosed.72 The importance of the provisions were the subject of a sobering



60 AHK

v Secretary of State for the Home Department [2014] Imm AR 32. v Duffy and others [2015] NICC 13. 62 Criminal Procedure Rules (Crim PR) 22.3. 63 ibid 22.3(5). 64 R v Smith (David James) [1998] 2 Cr App R 1, CA. 65 R v Menga and Marshalleck [1998] Crim LR 58, CA. 66 R v Jackson [2000] Crim LR 377, CA. 67 R v Joe Smith [2001] 1 WLR 1031, CA. 68 R v H; R v C [2004] UKHL 3. 69 Crim PR 22.6. 70 ibid 22.3(2). 71 ibid 22.3(4)(b). 72 ibid 22.3(4)(c). 61 R

222  Simon McKay decision by the Court of Appeal in R v Austin and Others,73 where despite serious procedural irregularities in how the public interest immunity hearings were conducted, the appeal was dismissed. The Judicial Protocol on the Disclosure of Unused Material in Criminal Cases (2013)74 and the Attorney General’s Guidelines on Disclosure (2013),75 supplement the Criminal Procedure Rules. The former places emphasis on the following in cases where non-disclosure in the public interest is sought: (a) The procedure for making applications to the court is set out in the Criminal Procedure Rules, Part 22; (b) When the PII [public interest immunity] application is a Type 1 or Type 2 application, proper notice to the defence is necessary to enable the accused to make focused submissions to the court and the notice should be as specific as the nature of the material allows. It is appreciated that in some cases only the generic nature of the material can be identified. In some wholly exceptional cases (Type 3 cases) it may be justified to give no notice at all. The judge should always ask the prosecution to justify the form of notice (or the decision to give no notice at all); (c) The prosecution should be alert to the possibility of disclosing a statement in a redacted form by, for example, simply removing personal details. This may obviate the need for a PII application, unless the redacted material satisfies the test for disclosure; (d) Except when the material is very short (for instance only a few sheets), or for reasons of sensitivity, the prosecution should supply securely sealed copies to the judge in advance, together with a short statement explaining the relevance of each document, how it satisfies the disclosure test and why it is suggested that disclosure would result in a real risk of serious prejudice to an important public interest; in undertaking this task, the use of merely formulaic expressions is to be discouraged. In any case of complexity a schedule of the material should be provided, identifying the particular objection to disclosure in relation to each item, and leaving a space for the judge’s decision; (e) The application, even if held in private or in secret, should be recorded. The judge should give some short statement of reasons; this is often best done document by document as the hearing proceeds; [and] (f) The recording, copies of the judge’s orders (and any copies of the material retained by the court) should be clearly identified, securely sealed and kept in the court building in a safe or locked cabinet consistent with its security classification, and there should be a proper register of the contents. Arrangements should be made for the return of the material to the prosecution once the case is concluded and the time for an appeal has elapsed.76

It is not possible to be formulaic in defining a test to be applied as each case will turn on its own facts. The Crown Prosecution Service identifies a number of ‘public interests’: the ability of the security and intelligence agencies to protect the safety of the UK; the willingness of foreign sources to continue to cooperate with UK security and intelligence agencies, and law enforcement agencies and of citizens, agencies, commercial institutions, communications service providers etc

73 R

v Austin and Others [2009] EWCA Crim 1527. 54–55. 75 ibid 65–69. 76 Judicial Protocol, para 55. 74 paras

The Doctrine of PII and Fair Trial Guarantees  223 to give information to the authorities in circumstances where there may be some legitimate expectation of confidentiality (for example, Crimestoppers material); the public confidence that proper measures will be taken to protect witnesses from intimidation, harassment and being suborned; the safety of those who comply with their statutory obligation to report suspicious financial activity (whilst they are under a statutory obligation and therefore do not give suspicious activity reports in confidence, their safety is a consideration to be taken into account in disclosure decisions); national (not individual or company) economic interests; the ability of the law enforcement agencies to fight crime by the use of covert human intelligence sources, undercover operations, covert surveillance etc; the protection of secret methods of detecting and fighting crime; and the freedom of investigators and prosecutors to exchange views frankly about casework.77 The prosecutor must consider the material and apply the usual test for ­disclosure. If no duty to disclose arises then no issue of PII arises. If the material is prima facie of a nature that would normally be disclosed, the prosecutor must consider whether its disclosure would cause real harm to the public interest and thus attracts immunity. If the prosecutor is so satisfied, a balancing exercise will then be carried out to determine whether the public interest is better served in making the disclosure or withholding the material. If a decision is made to withhold, the matter must be placed before the court and the prosecutor’s reasons advanced to the judge, who will consider the material and whether disclosure should be made. In Farrell and the Queen78 Mance LJ set out the relevant principles in approaching issues of disclosure (in the context of informers). The court must consider whether ‘the defence is manifestly frivolous and doomed to failure’79 before sacrificing the protection of PII and whether the material actually assists the defence at all. In this connection, the defence should note the Lord Chief Justice’s observation in Keane that ‘the more full and specific the indication the defendant’s lawyers give of the defence or issue they are likely to raise, the more accurately both prosecution and judge will be able to assess the value of the defence of the material’.80 In Farrell the court reaffirmed the statement in R v Turner81 that judges needed ‘to scrutinise with great care the applications for disclosure [by the defence] … if they were not so justified, the judge would need to adopt a robust approach in declining to order disclosure’.82 The approach was set out in R v Botmeh; R v Alami83 namely ‘to consider whether there was public ­interest in the non-disclosure of a particular matter and, if there was, whether

77 Crown Prosecution Service, Disclosure Manual, available at: www.cps.gov.uk/legal-guidance/ disclosure-manual. 78 Farrell and the Queen [2002] EWCA Crim 1223. 79 Agar [1990] 90 Cr App R 318 (Lord Mustill). 80 R v Keane [1994] 1 WLR 746. 81 R v Turner [1995] 2 CAR 94. 82 ibid para 27. 83 R v Botmeh; R v Alami [2002] 1 CAR 345.

224  Simon McKay this was outweighed because it might, if disclosed, have helped the defence on issues raised by them at trial’. Such applications for disclosure by the defence must be made in the correct form. The position in relation to national security cases is different. The CPS Disclosure  Manual84 notes that the preferred means by which (MI5, MI6 and GCHQ) seek to claim PII before a court is by way of Ministerial Certificate. Such a certificate – the issue of which has no statutory basis and has not so far been challenged domestically or before Strasbourg – requires the relevant minister (the Secretary of State for the Home Department in the case of MI5 and for Foreign and Commonwealth Affairs in the cases of MI6 and GCHQ) to be satisfied that any disclosure ‘would cause real risk of serious prejudice to an important public interest’.85 The certificate is placed before the trial judge, usually at a type-three hearing. In Guardian News and Media Ltd & Ors v Incedal86 (in the context of in camera proceedings) the Lord Chief Justice held that the court will ‘pay the highest regard’ to what the Secretary of State says in the certificate on national security issues provided there is an evidential basis for it. National security is an issue for the executive;87 determining whether there is evidence supporting the view and whether open justice should be fettered are decisions for the judiciary. Again, this is the position in principle; practice is likely to vary in different Crown Courts throughout the country. It is noteworthy that if the prosecutor makes the application (and it is envisaged it may not always be the prosecutor who does so, so presumably a lawyer from or on behalf of the relevant intelligence service) he or she is merely trustee for the material, which ‘must be returned to the [intelligence] Agency after the hearing’.88 How the ongoing review of the material, a critical element of procedural fairness, can take place effectively in such circumstances is difficult to envisage.

V.  Reflections, Vulnerabilities and Future Challenges The doctrine of public interest immunity should only operate to protect material from disclosure where vital public interests are preserved from damage (and nothing less than this) through non-disclosure. It is, or should be, an exceptional form of relief granted rarely as it represents a serious interference with what Lord B ­ ingham described as ‘almost incapable of over-emphasis … the right to a fair trial’.89 The theoretical application of the doctrine is that disclosure will



84 CPS, 85 ibid.

Disclosure Manual (n 77) ch 34.

86 Guardian

News and Media Ltd & Ors v Incedal [2014] EWCA Crim 1861. of State for the Home Department v Rehman [2003] 1 AC 153. 88 CPS, Disclosure Manual (n 77) 107. 89 T Bingham, The Rule of Law (London, Penguin Books, 2011) 108. 87 Secretary

The Doctrine of PII and Fair Trial Guarantees  225 always be ordered where the material in question goes to the innocence of the accused or where a miscarriage of justice may be avoided.90 The court must carry out a balancing exercise in determining whether the material meets the necessary threshold for non-disclosure. What may go to the innocence of the accused includes material that enables ‘the defendant to put forward a tenable case in the best possible light’91 and ‘to prevent the possibility that a man may, by reason of the exclusion, be deprived of the opportunity of casting doubt upon the case against him’.92 However this is an inherently subjective assessment by the judge. In Scott v Scott,93 Viscount Haldane, in the context of the exercise of judicial discretion to hold a secret hearing, expressed concern in that in the absence of an overriding principle determining the question, the ‘individual discretion’ of a judge had its limits.94 The same position must also be true in relation to PII applications. It is not clear that the current procedure will always satisfy Article 6. The narrowest victory Jasper and Fitt represented has to some extent been forgotten, as has the exceptional nature of the remedy. The Strasbourg decisions have not so far considered the Type 3 case (made without any notice to the defence) or a case where the judge has not seen the material, as in Atlan. There has been no domestic or European ruling of the legality of the use of ministerial certificates in national security cases. This is of particular concern in light of the blurring of the constitutional position of the Crown Prosecution Service and its relationship with the intelligence agencies highlighted in Incedal. The Strasbourg court in Jasper and Fitt was of the view that a practical fairtrial-compliant solution could be found. In Duffy, the existing options were exhausted, and proceedings discontinued but it is a shining example of how public interest immunity applications, even in the most sensitive cases, can be determined whilst affording both prosecution and defence equality of arms in an adversarial hearing and with some degree of transparency, including a reasoned, publicly available judgment. In every respect it emulated Walker and Robertson’s prevision of how the interests PII seeks to protect can be preserved alongside fair trial guarantees.



90 R

v Keane [1994] 1 WLR 746. v Agar [1990] 90 Cr App R 318. 92 R v Hallett and others [1986] Crim LR 462, CA. 93 Scott v Scott [1913] AC 417. 94 ibid 435. 91 R

226 

14 The Forensic Science Paradox carole mccartney Introduction Other authors in this volume have considered Clive Walker’s seminal work on defining a ‘miscarriage of justice’ and the import and impact of his writing in this regard, yet he has also led academic scrutiny of the causes of miscarriages of justice, as well as their remedy. In particular, Walker has written on the role played by forensic science in miscarriages of justice.1 This chapter seeks to further his scholarship, seeking to understand how forensic science has become indelibly linked with miscarriages of justice. It will question whether forensic science is ‘iatrogenic’, suggesting that reforms to date have provided only ‘sticking plaster’ solutions to problems. It concludes, however, that indiscriminate cynicism may be unjustified and that different approaches may yet succeed in ameliorating risks attendant upon forensic science utilisation. Walker’s conception of miscarriages of justice incorporates a broad spectrum of failings and abuses.2 While his broad definition is compelling, affirming the centrality of ‘justice’ in its widest sense, it has however, perhaps inevitably, led to a splintering of concerns, and consequently of academic study. For the sheer breadth of his definition makes almost impossible a thorough and erudite account of miscarriages of justice. Even in Walker and Starmer’s two edited collections on miscarriages of justice,3 the focus remains upon ‘wrongful convictions’.4 Indeed, 1 eg, R Stockdale and C Walker, ‘Forensic Evidence’ in C Walker and K Starmer (eds), Justice in Error (London, Blackstone Press, 1993); and C McCartney and C Walker, ‘Forensic Identification and Miscarriages of Justice in England and Wales’ in X Mallett, T Blythe and R Berry (eds), Advances in Forensic Human Identification (Boca Raton, FL, CRC Press, 2014). 2 C Walker, ‘Miscarriages of Justice in Principle and Practice’ in C Walker and K Starmer, Miscarriages of Justice: A Review of Justice in Error (London, Blackstone Press, 1999) 48–49. For further discussion, see ch 12 (Roach) in this collection. 3 C Walker and K Starmer (eds), Justice in Error (London, Blackstone Press, 1993); C Walker and K Starmer, Miscarriages of Justice: A Review of Justice in Error (London, Blackstone Press, 1999). 4 While even this nomenclature may be contested, ordinarily the appellation ‘wrongful conviction’ describes a situation when an individual is convicted of a criminal offence, which either was never committed (eg, a person is convicted of murder when in fact the deceased died of natural causes), or was perpetrated by a different individual(s).

228  Carole McCartney it is ‘wrongful convictions’ which dominate the academic ‘miscarriages of justice’ field and, arguably, public consciousness. This splintering is unavoidable because while there is both empirical research on, and theoretical explorations of, each of Walker’s possible miscarriages, what scholars struggle to achieve is an account of all possible miscarriages when discussing causes, remedies or allied issues. Yet there is also perhaps a failure of academics to ‘join the dots’ and appreciate that their work could sit within the canon of miscarriages of justice literature. Instead, we see the field delineated and defined by ‘factual innocence’.5 When scholars discuss, for example, the broadening of state powers, unjust or discriminatory laws, or human rights abuses, they most often do so without any explicit reference to broader miscarriages of justice literature. This omission is particularly true in respect of forensic science, which is often to the fore in circumscribed discussions surrounding wrongful convictions, but rarely in those contemplating Walker’s other miscarriage types. And yet, there may be a rich seam of evidence in pressing need of academic analysis, implicating forensic science in each of Walker’s types of miscarriage. For example, forensic science may be implicated or have a role in the overreach of state power, the discriminatory application of laws, or supporting unjust laws. A scan of this potential new direction for research into forensic science is therefore included in the latter stages of this chapter. To commence any examination of forensic science and miscarriages of justice however, one must first understand the binal role it plays in wrongful convictions. In starting with an outline of this ‘forensic paradox’, this chapter adopts the language of the equivalent medical phenomenon of ‘iatrogenicity’: the production of adverse outcomes arising from medical treatment.6 Medicine, which also suffers from careless characterisation, often found at the heart of debate around forensic science, also poses a similar paradox: while working to prevent/cure injury and ill health, it may instead cause it. This chapter then considers whether forensic science has the potential to produce harm(s): ie, is iatrogenic, before highlighting how reforms have attempted to minimise the risk of iatrogenesis.

I.  The Forensic Science Paradox The ‘paradox’ of forensic science becomes clear when contemplating the duality of forensic science as both the cause of wrongful convictions and, at the same time, the prevention and cure. To understand this paradox, we need first to remind ourselves of some basics. Forensic science is simply the application of any ‘science’ 5 See ch 17 (Campbell) in this collection for further exploration of the scale and impact of the focus upon ‘factual innocence’. 6 This is not confined to errors, negligence, or unwanted side effects for example, but may include a necessary outcome – say, a scar left after surgery see, I Illich, ‘Medical Nemesis’ (1974) 303 The Lancet 918.

The Forensic Science Paradox  229 (or technology) to resolve, or assist with the disposition of, a legal dispute. Forensic science is thus intended to reduce uncertainty by providing objective and verifiable ‘facts’ to steer decision-makers during the criminal process. The underlying notion is that when in possession of such facts, justice will (more likely) be achieved as decisions will be informed by the ‘true’ version of questioned events (verdict ­rectitude).7 And yet, forensic science comes under fire for obfuscation; the introduction of partiality and partisanship; and creating new sites of dispute, ie, for increasing uncertainty rather than alleviating it.8 In extremis, forensic science often stands accused of causing injustice, at its worst, in the form of wrongful ­convictions.9 This forensic science paradox is, however, partially attributable to crude language and over-simplification of ‘forensic science’ as if it constituted a homogenous discipline or coherent entity. Rather, ‘forensic science’ is a contrivance, representing a diverse and disparate range of techniques, practices, technologies etc: this multiformity reflected in the definition in section 3(a) of the US Congress Forensic Science and Standards Bill of 2012: ‘“forensic science” means the basic and applied scientific research applicable to the collection, evaluation and analysis of physical evidence, including digital evidence, for use in investigations and legal proceedings, including all tests, methods, measurements and procedures’. While some forensic technologies are born of rigorous scientific testing and experimentation (the oft-used example being DNA profiling), many others have no, or a minimal, ‘scientific’ basis. The epithet ‘forensic science’ thus may be useful for brevity and fluency, a shorthand serving to include all those practices (and practitioners)10 involved in the collection, testing and interpretation of potential ‘tangible’11 evidence for use in the criminal process. But adulterating ‘forensic science’ in order to be all-encompassing, invites similarly sweeping generalisations about forensic science ‘causing’ wrongful convictions. As LaPorte bemoans: Forensic science – when incorrectly perceived as a single discipline – causes observers to conflate matters and acquire their own misperceptions about all forensic science disciplines. Moreover, there can be a variety of methods within a single forensic discipline – and it is often a method, not the entire discipline, that may have been improperly applied or interpreted.12 7 ie, a ‘correct’ verdict, rectitude being a trial verdict that aligns with the ‘truth’. Of course, as Walker reminds us, rectitude is not the only aim of criminal justice processes, and indeed, may not always directly correlate to ‘justice’ in every case, see C Walker, ‘Miscarriages of Justice in Principle and Practice’ (n 2). 8 McCartney and Walker (n 1). 9 See SA Cole, ‘Forensic Science and Wrongful Convictions: From Exposer to Contributor to Corrector’ (2012) 46 New England Law Review 711. 10 It is also lazy shorthand to use the label ‘forensic scientists’, the broad all-encompassing term of ‘practitioners’ or ‘forensic scientists’ used for brevity and fluency. 11 I use ‘tangible’ to distinguish evidence such as human testimony (eye witnesses, confessions etc) from material ‘traces’ that are the substance of forensic investigation. See F Crispino et al, ‘Forensic Science: A True Science?’ (2011) 43 Australian Journal of Forensic Sciences 157. 12 GM LaPorte, ‘Wrongful Convictions and DNA Exonerations: Understanding the Role of Forensic Science’ (2017) 279 National Institute Justice Journal, available at: nij.gov/journals/279/Pages/wrongfulconvictions-and-dna-exonerations.aspx.

230  Carole McCartney This careless characterisation is often obscured during debates over whether, or how often, forensic science is to blame for wrongful convictions and yet it lies firmly at the crux of the controversy over whether forensic science ‘causes’ wrongful convictions.

II.  Is Forensic Science Iatrogenic? Iatrogenesis – transplanted from the medical to the forensic arena – refers then to the forensic scientist acting to help achieve justice but, by their very actions, causing injustice. Forensic science is tasked with providing impartial,13 objective evidence via the analysis and interpretation of ‘traces’ retrieved from a (potential) crime scene, which may indicate what occurred, and who was involved. This is what is expected from forensic science: the recreation of an event, which may or may not invoke sanctions for those involved in that event (a question not for forensic science but for law).14 Only rarely however can this trace analysis conclusively recreate a whole or series of events, particularly not in isolation from other evidence. Instead, scientific evidence assists with determining the probability of different hypotheses. More often, forensic science can explain just elements of a questioned event, providing answers to ‘sub-source’ propositions, for example, ‘this DNA profile belongs to A’. It is also often able to reliably assist with ‘source level’ propositions, ie, ‘the blood at the scene comes from A’. Where forensic science becomes much less reliable, and more dependent upon information from other sources, is when moving up the hierarchy of propositions to the ‘activity level’: ie, ‘the blood from A was shed when he broke through the window’. And what forensic science cannot assist with is ‘offence level’ propositions, for example, ‘A committed burglary’. This limitation was recognised in Duffy and Shivers, where a defendant’s DNA profile from the tip of a latex glove and seat-belt buckle in an abandoned getaway car, was not proven to link him to the murder plot and he was thus acquitted.15 When examining those occasions in which forensic science has been implicated in a wrongful conviction, often then it is because the scientific evidence was relied upon to answer ‘activity level’ questions, when it was unable to do so.16 This may be due to other actors pushing scientists,17 or scientists exaggerating their 13 ie, not ‘defence’ or ‘prosecution’ evidence, but evidence provided for the court, with no prejudice towards either side of the adversarial contest. 14 Expectations of the public surrounding forensic science has led to debate over a phenomenon labelled the ‘CSI Effect’, albeit the existence, and ramifications, of any such phenomenon are controversial, see SA Cole and R Dioso-Villa, ‘Investigating the CSI Effect Effect: Media and Litigation Crisis in Criminal Law Symposium: Media, Justice, and the Law’ (2008) 61 Stanford Law Review 1335. 15 Duffy and Shivers [2011] NICC 37. 16 See P Gill, Misleading DNA Evidence: Reasons for Miscarriages of Justice (Oxford, Academic Press, 2014). 17 There is perennial debate about the ‘independence’ of forensic scientists and the status and location of forensic laboratories, but this debate largely ignores the fact that crime scene examination is

The Forensic Science Paradox  231 capabilities, or the explanatory power of their data.18 While wrongful convictions most often arise from a multiplicity of causes, forensic science continues to be implicated in cases where the scientific evidence has been ‘stretched’ in this way and its probative value has been exaggerated, or misinterpreted, within the case. This is not to argue that the scientific evidence ‘caused’ the wrongful conviction; rather it compounds other problems or provides ballast for a weak case. In some instances, without the scientific evidence, the suspect might still have been convicted; but in others, the scientific evidence may have proved critical. Without thorough examination and possibly re-trying a case without the scientific evidence, it is impossible to posit which wrongful convictions can be said to have been ‘caused’ by forensic science. In the United States, the Innocence Project has used DNA testing to exonerate over 354 wrongly convicted individuals. Early analysis of the first 86 exonerations found that faulty scientific evidence had played a role in two-thirds.19 More recent analysis shows that ‘misapplied’ forensic science has played a role in 45 per cent of the wrongful convictions their Project has overturned.20 The US National Registry of Exoneration21 currently details more than 2,175 cases of exonerations in the US. In an analysis of 873 of these cases, 24 per cent featured false or misleading scientific evidence.22 Each of these figures are slightly lower than those found by Garrett and Neufeld in their analysis of 137 trial transcripts of convictions that were later overturned by DNA.23 In 60 per cent of these cases, experts were found to have given invalid testimony that overstated the evidence, was unscientific, or contrary to empirical data. They gave instances of erroneous or unsupported testimony about the accuracy and results of forensic techniques including hair comparison, bite-mark comparison, serology, fingerprint comparison and even DNA testing. Aside from the discrepancies in findings, attempts to quantify wrongful convictions caused by scientific evidence remain disputed on other grounds.24 Forensic scientists, in particular, have tried to cast doubt on the ability to accurately undertaken by staff directly under the supervision of police (if not officers themselves), and many of the important decision ‘nodes’ within the forensic process are staffed by police. Albeit independent forensic science should be an obvious first step in preventing these sorts of issues arising. 18 See cases involving Professor Sir Roy Meadow, detailed in ch 17 (Campbell) in this collection. 19 B Scheck, P Neufeld and J Dwyer, Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted (New York, Doubleday, 2000). 20 Details can be found at: Innocence Project, ‘Misapplication of Forensic Science’, available at: www. innocenceproject.org/causes/misapplication-forensic-science. 21 The US National Registry of Exoneration registers all exonerations in the United States since 1989, see: www.law.umich.edu/special/exoneration/Pages/about.aspx. 22 SR Gross and M Shaffer, ‘Exonerations in the United States, 1989–2012 Report by the National Registry of Exonerations’ 108, available at: www.law.umich.edu/special/exoneration/documents/­ exonerations_us_1989_2012_full_report.pdf. 23 B Garrett and PJ Neufeld, ‘Invalid Forensic Science Testimony and Wrongful Convictions’ (2009) 95 Virginia Law Review, 1. 24 See JM Collins and J Jarvis, ‘The Wrongful Conviction of Forensic Science’ (2009) 1 Forensic Science Policy & Management 17.

232  Carole McCartney identify cases where forensic science has ‘contributed’ to a wrongful conviction. For ­example, it has been said that: This will often include a certain degree of subjective interpretation because the ­majority of erroneous convictions involve complex investigations, multiple contributing factors, complicated juror decisions, and mistakes from policies and practices that have since changed. Moreover, we do not have all of the details or full transcripts from the evidence and testimony presented at trial, which may further inhibit our understanding and bias our opinions.25

Hence, most scientists will concede only that the forensic evidence may have been a ‘factor’ in a wrongful conviction, and maintain that it remains impossible to claim any more than this.26 Further: ‘without a comparison or control group of cases, researchers risk labeling these factors as “causes” of erroneous convictions when they may be merely correlates’.27 However, disagreement over ‘how many?’ and ‘how much?’ should not preclude drawing lessons from exonerations, nor forestall reforms. Efforts have been made to instigate legal requirements to ‘assure’ scientific evidence before it is relied upon during the criminal justice process. The steps necessary to secure such assurances however are not agreed upon, either among professions, or between jurisdictions. Where there is some agreement is upon weak points: areas where the potential for iatrogenesis is (almost) undisputed. The rest of this section explores in brief some such areas, namely where ‘new’ or unreliable science is utilised; where there is fraud, malpractice or ‘failures’; the role of cognitive bias; and the non-disclosure of evidence.

A.  ‘New’ or Unreliable Science The difficulties of assuring scientific evidence are compounded when the technique in use is novel. To give one example, ‘ear-printing’ aimed to identify burglars who habitually press their ears against walls or windows to listen for occupiers before entering an abode. Based upon the principles of fingerprinting, an ‘ear-print’ could be retrieved and compared with that of a suspect. In the murder trial of Mark Dallagher in 1998, an expert testified that he had ‘matched’ Dallagher’s ear-prints to those on a window. However, subsequent DNA testing eventually demonstrated the shortcomings of the ear-printing ‘science’, pointing to a different perpetrator and saw Dallagher exonerated.28 Other, more ­established,

25 LaPorte (n 12). 26 Collins and Jarvis (n 24) and LaPorte (n 12). Albeit their counter-arguments are also highly disputed, often tenuous and reliant upon conjecture and problematic methods and findings, see Cole, ‘Forensic Science and Wrongful Convictions’ (n 9). 27 JB Gould, J Carrano, R Leo and J Young, Predicting Erroneous Convictions: A Social Science Approach to Miscarriages of Justice, Final Technical Report, NCJ 241839 (Washington, DC, US Department of Justice, Office of Justice Programs, National Institute of Justice, 2013). 28 R v Dallagher [2002] EWCA Crim 1903.

The Forensic Science Paradox  233 forensic evidence types face similar issues, with the techniques failing to produce reliable, replicable results; indeed many of the so-called ‘matching’ or ‘feature comparison’ techniques largely remain unvalidated.29 Even fingerprinting has been challenged in courts in recent years and while generally coming through such challenges, it is far from unscathed.30

B.  Forensic Fraud and Malpractice It is not now difficult to find highly publicised cases of fraud or malpractice by forensic scientists,31 with Freckleton detailing occasions where forensic scientists have abandoned scientific integrity, distinguishing between occasions when misconduct has been deliberate, and those when conduct was simply incompetent or sub-standard.32 Turvey categorises ‘forensic fraud’ into three groupings: ‘simulators’ (faking or destroying/manipulating tests or results); ‘dissemblers’ (embellishing/lying or misinterpreting findings); and ‘pseudo-experts’ (lying about qualifications or expertise).33 No matter the category, each has the potential to produce harm and misdirect investigations or trial proceedings. Even within ‘accredited’ laboratories or agencies, there remains heavy reliance upon the integrity of practitioners. Misconduct has taken place, however, within establishments one may have presumed were staffed by competent, honest, well-supervised individuals. In the US, one FBI analyst had been failing to undertake quality control tests for two years. Neither her peers nor supervisors noted her errors, later detailed in a damning report.34 In the UK, a scandal at Randox Testing Services (RTS) required the Forensic Regulator to investigate a toxicology laboratory where individuals had manipulated quality control data for several years, casting doubt over 10,000 cases.35 This occurred despite RTS holding all the

29 See President’s Council of Advisors on Science and Technology (PCAST), Report to the President: Forensic Science in Criminal Courts – Ensuring Scientific Validity of Feature-Comparison Methods (Executive Office of the President, 2016). The PCAST Report discusses two types of ‘validiation’ to ensure both ‘foundational validity’ and ‘validity as applied’. 30 There have been notable wrongful convictions where fingerprints have been falsely declared to ‘match’; see SA Cole, ‘Scandal, Fraud, and the Reform of Forensic Science: The Case of Fingerprint Analysis’ (2016) 119 West Virginia Law Review 523. 31 eg, see the cases of Fred Zain and Annie Dookhan, detailed in PC Giannelli, ‘Scientific Fraud’ (2010) Faculty Publications, Paper 98, available at: scholarlycommons.law.case.edu/faculty_publications/98. 32 I Freckleton, ‘Forensic Misconduct’ in I Freckleton, Scholarly Misconduct (Oxford, Oxford University Press, 2016). 33 BE Turvey, Forensic Fraud: Evaluating Law Enforcement and Forensic Science Cultures in the Context of Examiner Misconduct (Oxford, Academic Press, 2013). 34 Office of the Inspector General, US Department of Justice, The FBI DNA Laboratory: A Review of Protocol and Practice Vulnerabilities (2004), available at: www.usdoj.gov/oig/special/0405/final.pdf. 35 See UK Forensic Regulator Annual Report 2017, 6–8, available at: www.gov.uk/government/ publications/forensic-science-regulator-annual-report-2017.

234  Carole McCartney appropriate International Organization for Standardization (ISO) accreditation and undergoing regular checks.36 In addition to fraud or malpractice during testing, scientists presenting their evidence at trial have been found to have mislead courts. On occasion this may have been intentional, whereas others may simply have been over-enthusiastic in their efforts to assist their ‘side’: true impartiality is notoriously difficult to achieve and maintain even when instructed by law to be independent.37 Even when based upon valid science, scientists may fail to explain that their data may be insufficient to sustain, or support, a conviction. Often there may be a blurring between ‘fact’ and ‘opinion’, with the jury not apprehending the distinction.38 The significance of expert testimony, and the dangers associated with courts (mis)understanding scientific evidence, have led to efforts to draft ‘standardised’ reports within the forensic disciplines.39 Yet the probative value of scientific evidence may be difficult to convey in non-scientific terms, and efforts to make results clear by use of crude analogies or rudimentary language have proven problematic. The notorious case of Professor Roy Meadow, and his repeated testimony advocating ‘Meadow’s law’, provides a lesson in the danger of relying upon flawed statistical analysis then ‘translated’ into potent but misleading analogies.40

C.  Forensic Failures While some failures are the result of fraud or malpractice, it is often more likely that negligence can account for mistakes or failures. An independent review of the Damilola Taylor murder case concluded that human failures in implementing operating procedures resulted in the failure to recover crucial bloodstain evidence.41 The UK Forensic Regulator investigates complaints, receiving 60 in the first five years of operation. Between 2015 and 2016, complaints rose from 36 to 57, rising again to 65 in 2016–17.42 Not only was there an increase in complaints,

36 Letter from Dr Tully to Chair of the House of Commons Science and Technology Select Committee, available at: www.parliament.uk/documents/commons-committees/science-technology/ Correspondence/171121-Norman-Lamb-to-Forensic-Science-Regulator-Randox.pdf. 37 R Graham, ‘The Presentation and Examination of DNA Evidence Adduced During Adversarial Trials’ (PhD thesis, Leeds University, 2016). 38 Assuming of course that there is a clear distinction, see P Roberts, ‘Making Sense of Forensic Science Evidence’ in P Roberts and M Stockdale (eds), Forensic Science Evidence & Expert Witness Testimony (Cheltenham, Edward Elgar, 2018). 39 A Biedermann, C Champod and S Willis, ‘Development of European Standards for Evaluative Reporting in Forensic Science: The Gap Between Intentions and Perceptions’ (2017) 21 International Journal of Evidence & Proof 14. 40 See ch 17 (Campbell) in this collection. 41 See A Rawley and B Caddy, Damilola Taylor: An Independent Review of Forensic Examination of Evidence by the Forensic Science Service (Home Office, 2007), available at: netk.net.au/Damilola/ Damilola2007.pdf. 42 Forensic Regulator Annual Report 2017 (n 35) 29.

The Forensic Science Paradox  235 there was also an increase in the complexity of reported issues and 14 cases were considered ‘high risk’ in 2016–17.43 Some cases have been ‘near misses’, such as DNA contamination at the LGC laboratory.44 Adam Scott was charged with rape in 2011 after a plastic tray containing a sample of his DNA (from an unconnected enquiry), was reused in the analysis of a sample from the rape, providing a DNA ‘match’ to the rape case.45 He denied travelling 400km from his home to the scene of the crime, and his lawyer pressed for further testing, uncovering the error and leading to the charges being dropped.46 Of course, the collection of materials from a crime scene (or equivalent) is the preserve of police or medical practitioners. Many wrongful convictions are set in motion at this early stage, with failings on the part of individuals who may miss exculpatory evidence, contaminate exhibits and samples, or misinterpret traces. They may also fail to forward it to a laboratory, either because of budgetary constraints or by failing to identify the value of an exhibit or trace. The case of Farah Jama from Australia illustrates the problem. Jama, was convicted of rape after his DNA was matched to a sample taken by a medical practitioner in a clinical setting, from an (alleged) rape victim. There is no denying that the DNA results were correct. However, Jama’s profile was not obtained from the ‘victim’, but from scissors that had been used earlier in a separate, unrelated, examination of Jama’s girlfriend in the same clinical setting. The DNA ‘match’ was sufficient for police to ignore exculpatory evidence and was enough to convict. Jama was in prison until his appeal, 18 months later, when the contamination was explained. The UK Forensic Regulator continues to voice concerns about contamination within medical settings, as well as at police stations, where samples may be collected.47 Of course, contamination is still a risk within laboratories. As tests have become more sensitive, precautions have had to improve and steps taken to ease identification of contamination when it occurs, including the creation of ‘elimination’ DNA databases of all staff (whether bench scientists or not) as well as serving police officers. The infamous German ‘Phantom of Helibronn’ case, where police expended thousands of hours chasing an unknown woman whose DNA profile kept turning up at crime scenes, led belatedly to the realisation that the criminal mastermind was actually a lady packing the cotton swabs used in the DNA profiling, prompting the use of ‘super sterile’ consumables in all laboratories as standard.48

43 ibid. 44 Forensic Regulator’s report on the DNA contamination case at LGC Forensics (October 2012), available at: www.gov.uk/government/publications/forensic-science-regulators-report-on-the-dnacontamination-case-at-lgc-forensics. 45 Vikram Dodd and Shiv Malik, ‘Forensics blunder “may endanger convictions”’ The Guardian (8 March 2012). 46 BBC News, ‘DNA rape sample procedures “not adequate”’ (1 October 2012). 47 Forensic Regulator Annual Report 2017 (n 35). 48 Elizabeth Gasiorowski-Denis, ‘The mystery of the Phantom of Heilbronn’ ISO News (6 July 2016), available at: www.iso.org/news/2016/07/Ref2094.html.

236  Carole McCartney

D.  Cognitive Bias More ubiquitous, and proving more challenging to address, is the impact of cognitive bias.49 The risk of scientists being ‘biased’ is not new, Glidewell LJ explaining: [A] forensic scientist conjures up the image of a man in a white coat working in a laboratory, approaching his task with cold neutrality, dedicated only to the pursuit of scientific truth. It is a sombre thought that the reality is sometimes different … Forensic scientists employed by the government may come to see their function as helping the police. They may lose their objectivity.50

The US National Research Council Report in 2009 (NRC Report) condemned the infiltration of prosecution biases into the work of laboratories that operated within police agencies.51 In England and Wales, such concerns ultimately led to the absorption into the independent national Forensic Science Service (FSS) of police laboratories. Yet, the FSS was closed in 2012, and forensic science in England and Wales is now provided by private companies and once again from in-house police facilities. The Forensic Regulator’s Codes of Practice state that all forensic practitioners should be governed by the principles of ‘independence, impartiality and integrity’, with organisational structures no hindrance in this regard.52 Yet this seems optimistic if a scientist is employed by, or works alongside, the police. All practitioners face institutional pressures, which are supposedly balanced by scientific professionalism, yet it was not long ago that scientists themselves conceded that forensic science ‘is not sufficiently well developed as a profession’.53 Such pressures demand a level of professionalism, and a strong, internalised, code of ethics, that has proven not to be universal. It is uncontroversial that all humans are susceptible to cognitive (or ‘confirmation’) bias and forensic scientists cannot be immune.54 They can be unconsciously biased by information surrounding the case.55 While the US has recommended practices to limit or mitigate cognitive bias in latent fingerprint examinations,56

49 SM Kassin, IE Dror and J Kukucka, ‘The Forensic Confirmation Bias: Problems, Perspectives, and Proposed Solutions’ (2013) 2 Journal of Applied Research in Memory and Cognition 42. 50 Judith Ward v The Queen (1993) 96 Cr App R 51. 51 National Research Council (NRC), Strengthening Forensic Science in the United States: A Path Forward (Washington DC, National Academies Press, 2009) (NRC Report). 52 Forensic Science Regulator, Revised Codes of Practice and Conduct for Forensic Science Providers and Practitioners in the Criminal Justice System (2017), available at: www.gov.uk/government/publications/ forensic-science-providers-codes-of-practice-and-conduct-2017. 53 S Willis, ‘Forensic Science, Ethics and Criminal Justice’ in J Fraser and R Williams (eds), Handbook of Forensic Science (Cullompton, Willan Publishing, 2009) 523. 54 H Bless, K Fiedler and F Strack, Social Cognition: How Individuals Construct social Reality (Hove, Psychology Press, 2004). 55 Kassin et al (n 49); and IE Dror and D Charlton, ‘Why Experts Make Errors’ (2006) 56 Journal of Forensic Identification 600. 56 The Report of the Expert Working Group on Human Factors in Latent Print Analysis, Latent Print Examination and Human Factors: Improving the Practice through a Systems Approach. (4 May 2012) NIST Interagency/Internal Report (NISTIR) 7842.

The Forensic Science Paradox  237 many scientists still believe that they can ‘control’ their biases with conscious effort even when this has been proven to be unrealistic. Yet such bias has the potential to result in mistakes, and can be much harder to detect, thus making essential preventative steps to cancel the impact of human factors. However, before such steps can be put into place – ie, some form of ‘sequential unmasking’, or selecting only essential case information and providing no more – greater acceptance of the potentially devastating impact of cognitive bias is required.57

E.  Non-Disclosure of Scientific Evidence The non-disclosure of scientific evidence (rarely cast as malevolent) has often played a significant role in wrongful convictions. While occurring in the mid1970s, the wrongful conviction of Stefan Kiszko still stands to demonstrate the devastating impact of non-disclosure of scientific evidence, particularly when the environment in which this most grievous injustice took place remains akin to today. Kiszko was convicted of the murder of 11-year-old Lesley Molseed in 1975. A semen sample from Kiszko did not contain sperm but that of Lesley’s killer, who had ejaculated on her underclothes, did contain sperm. These results were kept from the defence. It was not until after 16 years in prison, that the Court of Appeal heard the evidence that Kiszko could not have been the killer.58 Laying the blame for this wrongful conviction squarely at the feet of the scientist for not disclosing the exculpatory evidence would seem peremptory however, particularly as the scientist denied this, and the criminal proceedings against both the scientist and police office in charge were halted before any trial.59 But there is a well-recognised danger that scientific evidence adverse to the contentions of the prosecution can be disregarded and suppressed. Related concerns have bene raised about the availability of forensic evidence to the defence, with forensic service providers (FSPs) in the UK charging large sums of money for access to data and results of forensic tests.60 If unable to receive public funding, or have private means for meeting such costs, it is a mockery of ‘equality of arms’ if people are convicted upon scientific evidence not available to the defence. This becomes acute post-conviction, where the disclosure regime that operates pre-trial, ceases to have effect.61 Yet a 2014 Supreme Court ruling considers post-conviction non-disclosure less of a problem, because the prisoner

57 D Charlton, ‘Standards to Avoid Bias in Fingerprint Examination? Are Such Standards Doomed to be Based on Fiscal Expediency?’ (2013) 2 Journal of Applied Research in Memory and Cognition 71. 58 It took over 30 years to convict the true killer, using DNA techniques unavailable when Kiszko was convicted, but Ronald Castree was found guilty in 2008 (R v Castree 2008). 59 Heather Mills, ‘Detective’s death halts Kiszko case prosecutions’ The Independent (16 June 1995). 60 Owen Bowcott, ‘Defendants in criminal trials forced to pay to see key forensic evidence’ The Guardian (17 July 2013). 61 R (Nunn) v Chief Constable of Suffolk Constabulary & Anor [2014] UKSC 37.

238  Carole McCartney has already had the benefit of a full trial (and often, appeal).62 This stance sits uncomfortably with experience where post-conviction disclosure has freed thousands of wrongfully convicted prisoners after further investigations or inspections of materials that were available at trial. In the UK, since the closure of the FSS, the police are required to retain all exhibits post-trial.63 Yet they are not obliged to disclose materials post-conviction, they must only consider a disclosure request.64

F.  Conclusion: Forensic Science and Iatrogenesis Just this briefest of sketches of problem areas confirms that forensic science is potentially iatrogenic. However, this leads back to our paradox. While forensic science undoubtedly compounds failings and flaws within the criminal process, it often plays a significant role in preventing and curing wrongful convictions. We run the risk of throwing babies out with the bathwater if forensic science is sidelined or becomes too diminished. Thus, the challenge for reformers is to find remedies to the ills outlined above; remedies that do not themselves have bad side effects and are effective at dealing with the root causes of iatrogenesis. Thus far, efforts have proven to be only partially effective at addressing symptoms, and may have had even less impact upon the causes. Some of these efforts will be highlighted in the next section, while potential treatment that would tackle the causes and limit iatrogenesis are summarised.

III.  Remedies: Treating Symptoms Not Causes? A raft of critical reports have made recommendations to address some of the issues identified above, normally intended to be acted upon in combination. However, these reports have mostly led to piecemeal reforms, generally focused on treating ‘symptoms’, while the more difficult challenge of addressing the causes of iatrogenesis remains. Many reforms have often been partial or short-lived, and none have taken a root and branch approach to forensic science. Reforms have often been forestalled by economic pressures or proven unworkable within prevailing political or market climates. In the UK, the Royal Commission on Criminal Justice made 13 recommendations specific to forensic science. However, with criticism unabated, the House of Commons Science and Technology Select Committee revisited the same issues 62 C McCartney and N Speechley, ‘The Supreme Court, Post-Conviction Disclosure, and “Fishing Expeditions”: R (Nunn) v Chief Constable of Suffolk Constabulary & Anor [2014] UKSC 37’ (2015) 19 International Journal of Evidence & Proof 120. 63 Pursuant to the Code of Practice under s 23(1) of the CPIA Criminal Procedure and Investigations Act 1996, s 23(1). 64 Nunn (n 61).

The Forensic Science Paradox  239 a decade later in Forensic Science on Trial, making 60 recommendations on the regulation of forensic science, the training of scientists and related matters.65 In the US in 2009, the US National Research Council’s report Strengthening Forensic Science in the United States: A Path Forward,66 represented a ‘State of the Union’ for forensic science, of which it was almost unremittingly condemnatory. The report criticised, inter alia, the paucity of underlying research; lack of standards and accreditation of laboratories; dramatic inconsistencies in levels of training of forensic personnel; inattention to risks posed by cognitive contamination; unprincipled variation in terminology and forms of expression of scientific opinions; widespread failures to disclose limitations and uncertainties in reports and ­testimony; insufficient detail and explanation in reports; and a general lack of funding and leadership.67 In late 2016, the President’s Council of Advisors on Science and Technology (PCAST) released a further damning report, focusing on the lack of validity of many ‘comparison’ forensic science techniques.68 Despite the often wide-ranging and varied recommendations put forth by such reports, (these being just the most prominent), the two primary approaches to reform have been to strengthen rules of evidence to prevent unreliable scientific evidence being admitted at trial and the creation of oversight, or regulatory, bodies. Other reforms, that perhaps could more effectively tackle the causes of problems, such as investing in research; ensuring independence of scientists from law enforcement; and educational efforts, have been left on the back burner.

A.  Scientific Evidence and the Courts If scientific evidence does proceed as far as the trial stage (which is rare), judges are relied upon to act as ‘gatekeepers’ for such evidence.69 Yet, judges have only been provided with rudimentary guidance to assist them in this role. For example, judges in England and Wales are required to make decisions about admissibility in line with the Criminal Practice Directions,70 which gives an indicative list of factors to consider, thereby ensuring only ‘sufficiently reliable’ scientific evidence is admitted. In the US, the ‘Daubert’ test is widely relied upon to serve this function.71 The admission, and examination, of scientific evidence in adversarial criminal trials is subject to a complex set of evidentiary rules and procedural practices 65 Science and Technology Committee, Forensic Science on Trial Seventh Report of Session 2004–05 (London, The Stationery Office, 2005). 66 NRC Report (n 51). 67 ibid. 68 PCAST Report (n 29). 69 C McCartney, ‘Forensic Science, Judicial Gatekeeping, and Wrongful Convictions’ in G Bruinsma and D Weisburd (eds), Encyclopedia of Criminology and Criminal Justice (New York, Springer Verlag, 2014). 70 Criminal Practice Directions 2015 [2015] EWCA 1567. 71 Daubert v Merrell Dow Pharmaceuticals 509 US 579 (1993).

240  Carole McCartney which do not smoothly align with accepted scientific principles. While counsel can cross-examine an expert witness on their qualifications, experience and expertise, neither lawyers nor judges are generally well qualified to assess scientific practice or standards.72 Courts are then often still ‘unable to tell the difference between “expert opinion” and “scientific evidence”, too often retreating into the simplistic default assumption that everything said by a bona fide expert is necessarily ­“scientific”’.73 The reliance upon judges as gatekeepers, and the admissibility tests they apply, has thus been highly criticised: ‘some forensic sciences have been with us for so long, and judges have developed such faith in them, that they are admitted even if they fail to meet minimum standards under Daubert. Faith, not science, has informed this gatekeeping’.74 The NRC Report was pessimistic about judges and their gatekeeper role in preventing ‘junk science’ concluding ‘Daubert has done little to improve the use of forensic science evidence in criminal cases’.75 The ability of judges to interpret and apply ‘correctly’ (assuming there is a ‘correct’ decision) complex tests for whether scientific evidence is ‘sufficiently reliable’ is further complicated by the realist confines of the trial process (with time and resources limitations and multifarious other external pressures and considerations). One of the perennial predicaments is that while a technique may have a valid scientific basis and prove reliable in its application, how can it be ascertained that it was correctly applied in the present case? What are the error rates associated with the technique, and are there any pertinent factors that could jeopardise the reliability of the testing in this particular instance? Even where hurdles for scientific evidence exist, decisions to admit such evidence often still appear arbitrary, as well as inconsistent both between and within jurisdictions. In addition, such hurdles may come too late in the criminal process, presenting a critical safeguard at a very late juncture, with a demonstrably high failure rate. However, if a particular expert, expertise, or evidence type is regularly deemed inadmissible, there may be wider ramifications when police or legal professionals lose confidence and stakeholders may insist upon greater controls or regulation before using that scientist/technique in the future. This is a lengthy process however, with no guarantee that suspects will not be charged and prosecuted in the meantime upon similar evidence, and comes with a (perhaps unrealistic) requirement that the police are attentive to judicial decisions and deftly adapt their investigative techniques to only include those with a judicial seal of approval.

72 See C McCartney and J Cassella, ‘Lowering the Drawbridges: Forensic and Legal Education for the 21st Century’ (2011) 2 Forensic Science Policy & Management 81. 73 Gill (n 16) 11–12. 74 JC Moriarty and MJ Saks, ‘Forensic Science: Grand Goals, Tragic Flaws, and Judicial Gatekeeping’ (2005) 44 Judges Journal 16, 29. 75 NRC Report (n 51) 106.

The Forensic Science Paradox  241

B.  Forensic Science Regulation The UK76 has attempted to ensure uniform provision of high quality scientific evidence, primarily through the appointment of a Forensic Science Regulator. Established in 2007, the Regulator is tasked with establishing and monitoring quality standards and ensuring the accreditation of suppliers of forensic services, as well as dealing with complaints and providing advice to government. The Regulator ‘steers’ FSPs towards accreditation, but this ‘light touch’ has rendered the Regulator a paper tiger, leaving gaps in accreditation (which continues to be voluntary). The Regulator presently relies upon cooperation and requirements such as the Criminal Procedure Rules and Criminal Practice Directions to effect compliance with the Codes. Regulation thus still comes down to the courts: they look to the Regulator to accredit ‘science’ and scientists so they can admit scientific evidence, but the Regulator can only persuade experts to seek accreditation by urging the courts not to admit ‘unaccredited’ evidence, which they continue to do (and are perfectly entitled to do). The picture is complicated by police forces increasingly undertaking more forensics work in-house to save costs, these police services not yet uniformly subject to the same quality standards as apply to commercial providers. Yet the police lead the initial collection, screening and selection of exhibits for testing; poor decision-making at this juncture, contamination of exhibits, or weak chains of custody records jeopardise any further testing undertaken under stricter quality regimes. Criminal prosecutions – such as the IRA bombing in Omagh – have been ultimately scuppered by poor police practices at the crime scene and with an ambiguous chain of custody of exhibits.77 In the US, the NRC Report recommended creating a body which would ‘develop tools for advancing measurement, validation, reliability, information sharing, and proficiency testing in forensic science and to establish protocols for forensic examinations, methods, and practices’ (Recommendation 6). In 2013, a ‘National Commission for Forensic Science’ was established; however, the US government refused to continue funding in April 2017.78 Some work continues through the Organization of Scientific Area Committees for Forensic Science (OSAC), a collaboration of 500 members who develop standards, best practices etc to ensure ‘the development of technically sound forensic science standards and by promoting the adoption of those standards by the forensic science community’.79

76 The Forensic Regulator has jurisdiction over England and Wales, but both Scotland and Northern Ireland voluntarily agreed to work in partnership with the Regulator and continue to work within the same guidelines. 77 See R v Sean Hoey [2007] NICC 49. 78 The US Department of Justice Archives, ‘The National Commission on Forensic Science’, available at: www.justice.gov/archives/ncfs. 79 See, The Organization of Scientific Area Committees for Forensic Science, available at: www.nist. gov/topics/forensic-science/organization-scientific-area-committees-osac.

242  Carole McCartney Across EU Member States, accreditation of laboratories to the ISO 17025 standard is mandated by EU Council Framework Decision 15905/09, which should provide ‘mutual trust in the validity of the basic analytic methods used’,80 although it does not mandate particular methods, only that they be suitable for purpose. This only covers laboratories, omitting the retrieval of evidence, and even with appended supplementary standards to ISO 17025 to make it ‘forensic’, no standard can regulate every aspect of a practitioner’s work, even in a laboratory environment. Meanwhile it is dangerous to implement standards and operating procedures not underpinned by rigorous research. The Forensic Regulator articulated a ‘risk model’ approach, but utilising a risk model requires quantification of the ‘risk’ posed by any particular procedure or practice. However, error rates and limitations for techniques remain largely undetermined. Without these, can a laboratory profess to be working within acceptable parameters? What level of error is acceptable? Even assuming extra resources to produce robust error rates, it is questionable whether risks can be meaningfully quantified, given the inherently contextual nature of forensic evidence. Many questions are not purely scientific. Acceptability turns, in part, upon the criminal justice system’s values and public tolerance of error, but classic regulatory risk analysis typically takes little (if any) account of sociological, economic, ethical or even legal considerations. In addition, risk-based regulation does not ensure ‘quality’ but aims to prioritise or mitigate crises. In practice, political crisis induced by a wrongful conviction or scandal may be necessary to provoke regulatory intervention,81 but this may come too late for an individual who cannot be adequately compensated for their loss of liberty or a public whose trust in the administration of justice is irreparably damaged.82 There is also the countervailing difficulty of encouraging innovation and development within regulatory parameters. This demands regulatory flexibility and pluralism, to avoid stagnation, and setting forensic science ‘in aspic’.83 A difficult balance must be struck between strict adherence to protocols and ensuring that practitioners can innovate and exercise professional judgement.

C.  The ‘Science’ in Forensic Science Tackling the problems of forensic science with evidential admissibility rules, and the creation of regulatory bodies, has thus far served only to address symptoms and provide sticking-plaster solutions. If a mantra were to be identified

80 EU Council Framework Decision 15905/09, 5, para 14. 81 C McCartney and S Roberts, ‘Building Institutions to Address Miscarriages of Justice in England and Wales: “Mission Accomplished?”’ (2013) 80 University of Cincinnati Law Review 1333. 82 M McConville and L Bridges (eds), Criminal Justice in Crisis (Aldershot, Edward Elgar, 1994). 83 S Brown and S Willis, ‘Complexity in Forensic Science’ (2010) 1 Forensic Science Policy & Management 192, 193.

The Forensic Science Paradox  243 through all the reports on forensic science, it would be the need for ‘more and better science’. Between forensic disciplines, the sophistication and maturity of the scientific underpinnings varies substantially. The NRC Report asserted that aside from DNA analysis, ‘no forensic method had been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source’.84 Further, ‘some non-DNA tests do not meet the fundamental requirements of science, in terms of reproducibility, validity and falsifiability’.85 Demands for more research are necessarily coupled with demands for more funding, a call heard regularly.86 Forensic scientists complain of a lack of funding opportunities, a deficiency that seriously curtails opportunities to study forensic disciplines at graduate level, with universities discouraged, if not precluded, from developing research-based forensic programmes, particularly at doctorate level, as well as limiting the ability of forensic science to attract the best scientists.87 Indeed, forensic science education is a perennial issue, with familiar criticisms surfacing: inconsistent quality and insufficient funding.88 Even with an increase in research, there remain inherent difficulties in reaching agreement on areas of scientific controversy. Recent debates surrounding Low Template DNA demonstrate that scientists may become entrenched in opposing views. If forensic scientists cannot resolve a dispute over whether a technique or practice is reliable, how should a regulator or judge proceed? To expect the scientific community to always reach consensus is to misunderstand the nature of scientific endeavour, which is always pushing against the boundaries of current orthodoxy. But such disputes foster widely discrepant practices, with techniques deemed acceptable in some countries, or by some scientists, rejected by others.

D.  Investing in Forensic Science Attempts to raise standards in forensic science, and the introduction of regulatory structures and oversight, are being expanded at a time of public spending retrenchment. While the lack of accurate, accessible, data on spending on forensic science in the UK has been regularly identified as problematic,89 the Home Office admit to a decline in spending on external forensic services of about 40 per cent between 2010 and 2015/16.90 While the police increase their forensic workload to 84 NRC Report (n 51) S-7. 85 ibid 43. 86 eg, Professor J Fraser, ‘Letter to the Editor’ (2009) 49 Science and Justice 41. 87 NRC Report (n 51) 230. 88 ibid ch 8. 89 Briefing for the House of Commons Science and Technology Committee: The Home Office’s Oversight of Forensic Services (December 2014). 90 G Bandy and J Hartley, ‘Debate: When Spending Less Causes a Problem’ (2018) 38 Public Money & Management 52.

244  Carole McCartney save costs, the ‘marketplace’ for FSPs then shrinks, leaving providers vulnerable and the market lacking resilience: ‘the continued fall in spending put more pressure on the FSPs’ turnover and profitability and, therefore, poses questions about the sustainability of the market’.91 This has led to a dangerous situation in respect of available expertise in some disciplines, particularly fibre analysis and other less often used techniques. For example, the Forensic Regulator reports that there are now just 12 fully qualified toxicology reporting officers in England and Wales.92 Demonstrating the fragility of the market and the risks that this poses, the Metropolitan Police have recently been forced into spending millions of pounds to keep Key Forensics,93 ‘afloat’ while they finish work on thousands of criminal cases.94 By driving down costs, some FSPs are unable to be cost-effective, particularly when also meeting the costs of accreditation. The Regulator has commented that: ‘too much money has been and is continuing to be driven out of forensic science provision’.95 Forensic science may then come under pressure to ‘diversify’ and look for new commercial enterprises. Such forays outside the limited parameters of individual criminal investigations may also broaden the role that forensic science might play in miscarriages of justice.

IV.  Forensic Science and Miscarriages of Justice If considering the role of forensic science and ‘miscarriages of justice’ as articulated by Walker, injustice in all its forms should be significant, with wrongful convictions just one focal point. This will take scholars beyond matters of ‘evidence’ and individual cases, to scrutinise the place of forensic science within a potentially unjust system. There are profitable places to look for the potential of forensic science to engender injustice without much searching: reinforcement of racial stereotypes and racially discriminatory policing and prosecutorial practices;96 supporting (early) plea bargains (which are not always a reliable indication of guilt);97 encouraging the unjust collection and retention of data on a populace;98 or the unjust targeted surveillance of groups.99 Forensic science can

91 ibid 53. 92 Forensic Regulator Annual Report 2017 (n 35) 6. 93 Key Forensics is one of the UK’s three ‘full spectrum’ FSPs, meaning that they undertake a wide range of forensic services rather than specialise. 94 Fiona Hamilton, ‘Police foot the bill after collapse of forensics firm’ The Times (31 January 2018). 95 Forensic Regulator Annual Report 2017 (n 35) 10. 96 See K Schramm, D Skinner and R Rottenburg (eds), Identity Politics and the New Genetics: Re/ Creating Categories of Difference and Belonging, Vol 6 (New York, Berghahn Books, 2012). 97 C McCartney, ‘The DNA Expansion Programme and Criminal Detection’ (2006) 46 British Journal of Criminology 175. 98 C McCartney, ‘Of Weighty Reasons and Indiscriminate Blankets: The Retention of DNA for Forensic Purposes’ (2012) 51 Howard Journal of Criminal Justice 245. 99 see ch 12 (Roach) in this collection.

The Forensic Science Paradox  245 then be implicated in Walker’s ‘systemic’ miscarriages of justice, with some individuals subject to coercive state interventions who may not deserve such treatment, which can extend to groups, leading to injustice felt communally by a populace under surveillance by forensic technologies.100 In particular, the tendency of forensic science to utilise large databases, often including sensitive personal (bio) information, has led to increases in police and state powers to collect and retain personal data. This culminates in the over-inclusion of citizens and weakening of demands for individualised suspicion prior to coercive state action. As such, a ‘human rights’ approach to forensic science is essential, but is only now emerging and remains patchy in its coverage.101 The risk of due process being abbreviated or abandoned when ‘science’ has proven guilt beyond (reasonable) doubt, was highlighted some years ago,102 but such risks may have been heightened with the introduction in the UK of ‘Streamlined Forensic Reporting’.103 While academic scrutiny of the impact of this initiative is in its early stages,104 anecdotally the evidence is stacking up that the criminal process is being pared down when there is scientific evidence.105 This may even invert the presumption of innocence, the burden of proof shifting to suspects: ‘We have found your DNA at the crime scene, provide an innocent explanation for it’. The dangers inherent in speeding up investigations, or diminishing due process safeguards, are well rehearsed within wrongful conviction literature.106 However, the contribution of forensic science to such attacks on due process, and the risk that some suspects may receive ‘less’ due process than others, or even receive greater punishment, when forensic science plays a role in their prosecution,107 has arguably yet to be fully explored.

100 eg, the DNA retention policies regarding those individuals whose DNA is retained under ‘National Security Determinations’ made by the Biometrics Commissioner, are different in that the individual concerned does not have equal rights as those whose DNA is retained under the normal Police and Criminal Evidence Act 1984 (as amended by the Protection of Freedoms Act 2012). 101 See R Hindmarsh and B Prainsack (eds), Genetic Suspects: Global Governance of Forensic DNA Profiling and Databasing (Cambridge, Cambridge University Press, 2012). 102 McCartney, ‘The DNA Expansion Programme’ (n 97); and C McCartney, ‘The England and Wales Criminal Justice System; An Outline of the “DNA Fast-Track” Program of 2020’ (2003) 59 The Magistrate 313. 103 Streamline Forensic Reporting was introduced under the Criminal Justice Efficiency Programme to ‘streamline’ forensic testing (and reduce costs), by producing early, short preliminary reports to parties pre-trial, only advancing to further testing if required/demanded (and encouraging early guilty pleas). See ACPO, Communication Strategy – Streamlined Forensic Reporting (2012). 104 See K Richmond, ‘Streamline Forensic Reporting: Swift and Sure Justice?’ (2018) Journal of Criminal Law (forthcoming). 105 eg, see, Forensic Context, ‘Streamline Forensic Reporting – The Hidden Truth’ (January 2016), available at: www.forensiccontext.com/streamlined-forensic-reporting-the-hidden-truth. 106 eg, see, S Poyser and B Milne, ‘Miscarriages of Justice: A Call for Continued Research Focussing on Reforming the Investigative Process’ (2011) 13(2) The British Journal of Forensic Practice 61. 107 See, eg, M Briody, ‘The Effects of DNA Evidence on Sexual Offence Cases in Court’ (2002) 14 Current Issues in Criminal Justice 159.

246  Carole McCartney

Conclusion Uncritical faith in forensic science can be misplaced, for while scientific evidence can assist the pursuit of justice, it can also hamper efforts. This paradox can lead to bipolar reactions. On the one hand, we could have less forensic science, be more sceptical of claims, and ensure there are strict rules concerning admission of scientific evidence at trial, coupled with greater regulation and oversight. To date, this reaction has gained the most traction. An alternative response would lead to more but better forensic science – by tackling the scientific deficit, educational poverty and economic pressures; improving the ‘science’ in forensic science, with improved research, education (broadly conceived) and investment. In order to prevent iatrogenesis, the first approach – stricter controls and regulation – has benefits. However, there are risks that flawed or superficial regulation will give false assurances, while stymying research and development. Investigators may then rely more heavily upon unreliable techniques and evidence types. What is required is that this ‘sceptical’ approach is coupled with the encouragement and support of forensic science, so that standards can be raised while facilitating the maturation of forensic science as a distinct applied science, preventing iatrogenesis and enabling forensic scientists to increase their capacity to both prevent and cure wrongful convictions. For while there are cases of wrongful conviction which feature forensic science, simultaneously wrongful convictions are identified by the work of diligent forensic scientists, and forensic science has proven critical to the successful exoneration of innocent victims of wrongful convictions. This vital role must not be diminished. Forensic science reforms should always be contemplated within the context of the criminal justice system. Many of the safeguards against wrongful convictions must reside within fair and rational legal rules and professional working cultures fostered by appropriate training and management, assured by accreditation, quality assurance and validation processes, within not just forensic science, but the police, prosecution, judiciary and legal profession. There needs to be a broadening of science education to incorporate those who also have to understand scientific evidence. Indeed, the NRC Report enjoined educators to extend their remit to include law enforcement, pathologists, the Bar, the judiciary, the general public and policymakers, though interestingly not journalists or the media who are at least complicit in, if not liable for, much misinformation. A scientifically literate populace might create a roadblock where a case relying upon unreliable scientific evidence could be stopped by perceptive police, legal professionals, or judges and jurors. No matter the level of scientific understanding, decision-making by all must be informed by the apprehension that forensic science has never been, and will never be, infallible. Yet this chapter poses a further question: in a climate where adversarialism is being eroded, where science is granted especial credence, and expert witnesses gain credibility as guarantors of ‘accurate’ findings of guilt, can there be created a

The Forensic Science Paradox  247 ‘technological tyranny’?108 Such a tyranny may have wider consequences than just the causing of wrongful convictions. Bowling has asked: ‘can we say that crime control professions … have become a major threat to safety and to justice? Do they create new kinds of unsafety, insecurity and injustice?’109 Can forensic scientists similarly create new kinds of unsafety, insecurity and injustice, ie, be implicated in Walker’s broader miscarriages of justice? The challenge now is for scholars to not just understand the risks of forensic science in causing wrongful convictions, but to address this question directly, in greater depth.

108 ET Blake, ‘Scientific and Legal Issues Raised by DNA Analysis’ in J Ballantyne, G Sensabaugh and J Witowski (eds), DNA Technology and Forensic Science (Cold Spring Harbor, New York, Cold Spring Harbor Laboratory Press, 1989) 110. 109 B Bowling, ‘Transnational Criminology and the Globalisation of Harm Reduction’ in M Bosworth and C Hoyle (eds), What is Criminology? (Oxford, Oxford University Press, 2011) 365.

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15 Post-Conviction Review in England and Wales: Perpetuating and Rectifying Miscarriages of Justice stephanie roberts Introduction In an ideal world, post-conviction review in criminal cases would serve several important functions: it would ensure the process leading to conviction is fair and that it yields a reliable result; it would protect established boundaries between the state and the individual; and it would remedy miscarriages of justice. In his Review of the Criminal Courts in 2001, former Court of Appeal judge, Sir Robin Auld, set out some criteria for a good appellate system. The criteria were that it should do justice to individual defendants and to the public (as represented principally by the prosecution); it should bring finality to the criminal process, subject to the need to safeguard either side from clear and serious injustice (such as would damage the integrity of the criminal justice system); it should be readily accessible, and clear and simple in its structures and procedures and efficient and effective in its use of judges and other resources in righting injustice and in declaring and applying the law; and it should be speedy.1 These criteria are relevant to any criminal appellate system but appeal processes can often struggle to fulfil each of these goals which is to some extent understandable; as Walker has stated, it is obvious the judges of the Court of Appeal handle a tricky task. As the high priests of the law, they must not undermine the faith that the trial process is ‘an embodiment of justice’.2 At the same time, they must also take heed of the possibility of miscarriage and occasionally intervene to correct mistakes.3 1 R Auld, Review of the Criminal Courts (London, The Stationery Office, 2001) ch 12, para 2, available at: webarchive.nationalarchives.gov.uk; www.criminal-courts-review.org.uk (Auld Review). 2 Citing R Nobles and D Schiff, Understanding Miscarriages of Justice: Law, the Media, and the Inevitability of Crisis (Oxford, Oxford University Press, 2000) 39. Walker was writing a book review. 3 C Walker, ‘Nobles, R, and Schiff, D, Understanding Miscarriages of Justice: Law, the Media and the Inevitability of Crisis’ in (2000) 20 Legal Studies 615, 617.

250  Stephanie Roberts While structures and procedures can be assessed for clarity and simplicity and speed can be measured, defining benchmarks for the other criteria can be difficult. In the United Kingdom, the two main bodies involved in reviewing criminal convictions are the Court of Appeal and the Criminal Cases Review Commission (CCRC).4 The Court of Appeal was created by the Criminal Appeal Act 1907 as the Court of Criminal Appeal which became the criminal division of the Court of Appeal in the Criminal Appeal Act 1966. The CCRC was created by the Criminal Appeal Act 1995 after recommendations by the Royal Commission on Criminal Justice (RCCJ) to take over the role the Home Secretary had to refer cases to the Court of Appeal.5 The Court of Appeal and the CCRC have both been criticised for their alleged failings in achieving their primary goal of rectifying miscarriages of justice, which in turn has led to arguments that these institutions perpetuate them.6 The Court of Appeal is often criticised for perpetuating miscarriages of justice by not rectifying wrongful convictions at the first opportunity; for ­example, the Guildford Four convictions were quashed on their second appeal and the Birmingham Six convictions were quashed on their third appeal. The most extreme example of this is the case of R v Cooper and McMahon7 which took six appeals before the conviction was finally quashed but by then both had died. The fact that these appeals need to return to the Court of Appeal potentially shows the Court of Appeal’s failings in not recognising the merits of the initial appeal, though this is not necessarily the case if the subsequent appeal might simply be stronger because of, for example, fresh evidence found or new law or procedure. The criticisms of the CCRC largely relate to its workload and backlog, the referral rate to the Court of Appeal and the number of appeals referred which are successful. This chapter draws on Professor Clive Walker’s contributions to scholarly scrutiny of these areas to examine such criticisms of the Court of Appeal and the CCRC. The chapter is divided into two parts, considering the Court of Appeal and CCRC respectively. The first part reviews the working practices of the Court of Appeal in order to determine how it constructs miscarriages of justice; further, the power the Court of Appeal has to quash convictions will be explored in relation to errors of fact (fresh evidence and lurking doubt appeals) and errors of law (procedural irregularities) and the difficulties associated with each. The second part will evaluate the role and working practices of the CCRC.

4 References in this chapter to ‘appellate processes’ refer to both the Court of Appeal and the Criminal Cases Review Commission (CCRC). 5 Criminal Appeal Act 1968, s 17. 6 Appeal and post-appeal procedures have been identified by Walker as a cause of a miscarriage of justice; see C Walker, ‘Miscarriages of Justice in Principle and Practice’ in C Walker and K Starmer (eds), Miscarriages of Justice: A Review of Justice in Error (London, Blackstone Press, 1999) 55. 7 R v Cooper and McMahon [2003] EWCA Crim 225.

Post-Conviction Review in England and Wales  251

I.  Constructing Miscarriages of Justice in the Court of Appeal As a starting point, a ‘miscarriage’ means literally a failure to reach an intended destination or goal. A miscarriage of justice is therefore, mutatis mutandis, a failure to attain the desired end-result of ‘justice’. Justice is about distributions, about according persons their fair shares, and treatment.8

The role of the Court of Appeal is not to declare people innocent, rather it is to quash a conviction if the Court thinks it is ‘unsafe’.9 This explains why, when quashing a conviction, there is rarely an accompanying apology from the Court of Appeal, which causes much consternation for successful appellants.10 The Court of Appeal does occasionally express regret and apologise, though this is not required within its legally defined role and such pronouncements are very rare.11 The main criticism of the Court of Appeal is that it has never fulfilled its intended function. It took approximately 31 Bills12 over a 60-year period before the Court of Appeal was finally created by the Criminal Appeal Act 1907, after the public furore caused by the wrongful conviction of Adolf Beck who was generally accepted to be factually innocent.13 This was the start of a recurring theme of crisis and reform in criminal appeals in England and Wales. Further reforms were enacted in Criminal Appeal Acts in 1964, 1966 and 1995 after further periods of perceived crisis and high-profile miscarriages of justice.14 8 See C Walker, ‘Miscarriages of Justice and the Correction of Error’ in M McConville and G Wilson (eds), The Handbook of the Criminal Justice Process (Oxford, Oxford University Press, 2002) 506. For a typology of miscarriage of justice cases see that chapter and C McCartney and C Walker, ‘Criminal Justice and Miscarriages of Justice in England and Wales’ in CR Huff and M Killias (eds), Wrongful Conviction: International Perspectives on Miscarriages of Justice (Philadelphia, PA, Temple University Press, 2008) 192–93. 9 Criminal Appeal Act 1995, s 1(1). In R v A(D), Lord Bingham stated ‘the Court of Appeal is in no position to declare that the appellant is innocent … That is not the function of this court. Our function is to consider whether in the light of all the material before us this conviction is unsafe’ (CA, unreported, transcript 14 March 2000). 10 eg, at a press conference after the Birmingham Six were freed, one of the six, William Power, ­criticised the appeal system and stated: ‘It’s all about points of law. It had nothing to do with justice. The truth didn’t come out. Nobody was interested in the truth’ The Times (15 March 1991). 11 See, eg, R v Fell [2001] EWCA Crim 696; R v Ward (1993) 96 Cr App R 1; R v Kelly [2003] EWCA Crim 2957; R v Martin C [2003] EWCA Crim 1246; R v Mattan The Times (5 March 1998); R v Roberts [1998] EWCA Crim 998. 12 This is an approximate figure because different sources suggest different numbers of Bills but this is the figure listed in the Return of Criminal Appeal Bills (1906) HL 201. 13 For details of the case, see R Pattenden, English Criminal Appeals 1844–1944 (Oxford, Clarendon Press, 1996), 28–30. 14 See generally, Pattenden, ibid; Nobles and Schiff, Understanding Miscarriages of Justice (n 2); S Roberts, ‘Reviewing the Function of Criminal Appeals in England and Wales’ (2017) 1 Institute of Law Journal (Jersey) (online article), available at: www.jerseylaw.je/publications/Documents/ IoLJournal/2017_1/ReviewingCriminalAppeals.pdf; C McCartney and S Roberts, ‘Building

252  Stephanie Roberts A number of problems with the Court of Appeal have been identified from the academic literature and the empirical studies conducted on the Court of Appeal. The problems include: 1. 2. 3. 4. 5.

Its deference to the jury.15 The Court’s reverence for finality.16 A lack of resources, which impacts upon the working practices of the Court.17 The process of review.18 The Court’s function of review rather than rehearing (namely that it adjudicates on whether the jury could have convicted, not on whether it should have convicted).19

These issues make it difficult for appellants to overturn their convictions, but while the academic consensus appears to suggest that the Court of Appeal is too reluctant to quash convictions, it is difficult to measure in any meaningful way whether the Court should be quashing more convictions because there is no gauge by which this could be measured. The Court of Appeal uses its power to overturn convictions that it finds to be unsafe in two situations: first, when a factually innocent person has been wrongly convicted; and second, when something has gone wrong either pre-trial or during the trial (procedural irregularities) that warrants a conviction being quashed, whether the appellant is factually innocent or factually guilty.20 Both of these interpretations of ‘safety’ are evident in Walker’s definition of a miscarriage of justice which reflects what he calls ‘an individualistic rights-based approach’.21 He suggests that a miscarriage of justice can be considered to have occurred whenever suspects or defendants or convicts are treated by the state in breach of their rights, Institutions to Address Miscarriages of Justice in England and Wales: “Mission Accomplished?”’ (2012) 80 University of Cincinnati Law Review 1333. 15 See RE Ross, The Court of Criminal Appeal (London, Butterworth and Co, 1911); D SeaborneDavies, ‘The Court of Criminal Appeal: The First Forty Years’ (1951) 1 Journal of the Society of Public Teachers of Law 425; M Knight, Criminal Appeals (London, Stevens and Sons, 1970); K Malleson, ‘Review of the Appeal Process’, RCCJ Research Study No 17 (London, HMSO, 1993); Tucker Committee, Report of the Departmental Committee on New Trials in Criminal Cases (Cmd 9150, 1954); Donovan Committee, Report of the Interdepartmental Committee on the Court of Criminal Appeal (Cmnd 2755, 1965); Runciman, Royal Commission on Criminal Justice Report (RCCJ) (Cm 2263, 1993) ch 10. 16 See K Malleson, ‘Appeals Against Conviction and the Principle of Finality’ (1994) 21 Journal of Law and Society 151; P Hill, ‘Finding Finality’ [1996] New Law Journal 1552. 17 RCCJ (n 15); JR Spencer, ‘Does Our Present Criminal Appeal System Make Sense?’ [2006] Criminal Law Review 677. 18 The Auld Review outlined the problematic appeal preparation process for the judges who do not have much time to read the papers and often do this in their evenings and weekends: Auld Review (n 1) ch 12. 19 See Roberts, ‘Reviewing the Function of Criminal Appeals in England and Wales’ (n 14); McCartney and Roberts (n 14). 20 See S Roberts, ‘Unsafe Convictions: Defining and Compensating Miscarriages of Justice’’ (2003) 66 Modern Law Review 441. 21 Compare Greer who also adopts a due process/human rights approach to defining miscarriages of justice: S Greer, ‘Miscarriages of Justice Reconsidered’ (1994) 57 Modern Law Review 58.

Post-Conviction Review in England and Wales  253 as a result of: first, deficient processes; second, the laws which are applied to them; third, there being no factual justification for the applied treatment or punishment; fourth, whenever suspects or defendants or convicts are treated adversely by the state to a disproportionate extent in comparison with the need to protect the rights of others; fifth, whenever the rights of others are not effectively or proportionately protected or vindicated by state action against wrongdoers; sixth, state law itself.22 There is also an additional seventh category of an ‘indirect miscarriage which affects the community as a whole’.23 This ‘due process’ focus has been criticised by Naughton who argues that ‘it leads to the perverse conclusion that no miscarriage of justice has occurred even if a factually innocent person is convicted so long as due process is adhered to’.24 However, Walker clearly states that those who are wrongly convicted because they are factually innocent would fall into the third category,25 subject to the qualification that the system should be allowed some time to correct itself, whether through acquittal or the payment of damages. Consequently, the notion of ‘miscarriage of justice’ involves a completion of a process (in failure) and not simply a mistake. Therefore, using this argument, the label ‘miscarriage of justice’ would only be ascribed to those cases that have been through the appeal process and failed and are subsequently sent back to the Court of Appeal via the CCRC and then overturned.26 There is a further qualification to this, which is that there must be some kind of state responsibility for the conviction, construed widely. While this qualification may narrow the parameters of how we define a miscarriage of justice, it does reflect the fact that there has always been a focus on due process (as well as factual innocence) in the definition of miscarriage of justice used in England and Wales rather than the narrower definition of ‘wrongful conviction’ focusing on factual innocence in countries such as the United States.27 Walker’s definition has also been criticised by Nobles and Schiff as being too vague: ‘this definition raises more questions than it answers. What rights? What is disproportionate adverse treatment? When are the rights of others not properly protected?’28 They have further argued that ‘whereas human rights standards offer a form of argument about the priority of one value against other values, or rights as principles in contrast to social or economic policies, they remain in Bentham’s 22 Walker, ‘Miscarriages of Justice in Principle and Practice’ (n 6) 33. 23 ibid 37. 24 M Naughton, The Innocent and the Criminal Justice System (London, Palgrave Macmillan, 2013) 26. 25 Walker, ‘Miscarriages of Justice in Principle and Practice’ (n 6) 35. 26 This view is also reflected in the compensation scheme for miscarriages of justice. See ch 16 (Quirk and King) in this collection. 27 See S Roberts and L Weathered, ‘Assisting the Factually Innocent: The Contradictions and Compatibility of Innocence Projects and the Criminal Cases Review Commission’ (2009) 1 Oxford Journal of Legal Studies 43; B. Garrett, ‘Actual Innocence and Wrongful Convictions’ in E Luna (ed), Academy for Justice, A Report on Scholarship and Criminal Justice Reform, available at: academyforjustice. org/volume3; KA Findley, ‘Innocence Found: The New Revolution in American Criminal Justice’ in S Cooper (ed), Controversies in Innocence Cases in America (London, Ashgate Publishing, 2014). 28 R Nobles and D Schiff, ‘Review of Justice in Error’ (1994) 34 British Journal of Criminology 383.

254  Stephanie Roberts famous phrase “nonsense”’.29 Walker, however, has criticised this as a ‘wholly inadequate and unconvincing response to their growing use by the Court of Appeal and the signal given by the Human Rights Act 1998 to take fuller heed of 50 years of jurisprudence from Strasberg’.30 Such conflict alludes to the argument over whether the Court of Appeal should see rights and fairness as grounds of appeal in their own right or whether they should only be considered in light of the factual accuracy of the jury verdict (verdict rectitude). Nobles and Schiff argue that there is unresolved conflict between due process and truth which underlies the criminal justice process. If the legal system cannot get at the truth, then the best it can do is to provide processes, which justify the inevitable punishment of the innocent. But if the legal system is intended to get at the truth, then how does one justify procedures which make no demonstrable contribution to the accuracy of its outcomes?31

They further argue that if there is no clear, consistent, and specific basis for identifying what constitutes a breach of due process within criminal justice, or which rights under what conditions should be given priority, how is the Court of Appeal (or any other review body) to operate?32

But Walker, as an advocate for rights and fairness being grounds of appeal in their own right, has criticised the reliance on what he calls ‘narrower values’ such as finality and ‘truth’ (of verdicts) as the basis for the maintenance of the authority of criminal justice, stating that these will not suffice as the Birmingham Six case well illustrates, no matter how final the Lord Chief Justice’s pronouncements were in dismissing the appeal, the case kept coming back whenever there was new evidence that they had not been accorded their rights. Such uncertainty and scepticism is only ‘threatening’ to the system if one’s ultimate values fail to emphasise respect for rights.33

This argument of Walker’s can be traced through the case law of the Court of Appeal but it has proved to be a complicated issue at times determining exactly what role rights and fairness play on appeal as a review of the case law will now demonstrate.

II.  Defining Rights and Fairness in the Court of Appeal There was much judicial and academic debate after the enactment of the Criminal Appeal Act 1995 in relation to errors of law and procedure, and the reformed 29 Nobles and Schiff, Understanding Miscarriages of Justice (n 2) 30. 30 C Walker, ‘Nobles, R, and Schiff, D, Understanding Miscarriages of Justice’ (n 3) 620. 31 R Nobles and D Schiff, ‘Miscarriages of Justice: A Systems Approach’ (1995) 58 Modern Law Review 299, 317. 32 Nobles and Schiff, Understanding Miscarriages of Justice (n 2) 32. 33 C Walker, Nobles, R, and Schiff, D, ‘Understanding Miscarriages of Justice’ (n 3) 620.

Post-Conviction Review in England and Wales  255 safety test.34 It had been settled law prior to the Criminal Appeal Act 1995 that the Court of Appeal had the power to quash convictions regardless of whether it considered the appellant to be factually guilty. It would appear that this approach was initially followed after the enactment of the Criminal Appeal Act 1995.35 However, in R v Chalkley,36 it was held that the Court of Appeal did not have the power under the new test to allow an appeal if it thought the appellant was factually guilty. This case was followed a number of times37 but R v Mullen38 took the approach of the Court in Hickey and adopted a broader interpretation of unsafe, moving away from Chalkley and reverting to the approach taken by the Court prior to the 1995 Act. This emphasised that the Court of Appeal still performed a supervisory role in assessing the overall fairness of the prosecution process. This test was then reinterpreted in light of the Human Rights Act 1998 in order to make the Criminal Appeal Act 1995 compatible. From its early days, the Court of Appeal has considered it part of its role to ensure that the accused had a fair trial,39 but the Human Rights Act made fairness much more of an issue. Some initial judgments took the view that unfairness was a matter of degree and not all cases of unfairness will result in an unsafe conviction.40 In R v Togher41 the Court of Appeal followed Mullen over Chalkley, stating that an unfair trial would almost inevitably be unsafe. This case was endorsed by two judgments of the House of Lords – in Forbes42 and A.43 These judgments appeared to apply the approach that if the trial was unfair then this should lead to an unsafe conviction, though this appeared to be refuted by the House of Lords in R v Lambert.44 In later cases, there does seem to be an acceptance that if a trial is unfair then the conviction has to be unsafe,45 though these cases also suggest that 34 See, eg, I Dennis, ‘Fair Trials and Safe Convictions’ (2003) 56 Current Legal Problems 211; R Nobles and D Schiff, ‘Due Process and Dirty Harry Dilemmas: Criminal Appeals and the Human Rights Act’ (2001) 64 Modern Law Review 911; A Clarke, ‘Safety or Supervision? The Unified Ground of Appeal and its Consequences in the Law of Abuse of Process and Exclusion of Evidence’ [1999] Criminal Law Review 108; D Ormerod and N Taylor, ‘Mind the Gaps: Safety, Fairness and Moral Legitimacy’ [2004] Criminal Law Review 266; A Ashworth and M Redmayne, The Criminal Process (Oxford, Oxford University Press, 2005) 357. 35 See R v Hickey and others (CA, unreported, transcript, 30 July 1997) Case No 96/5131/S1. 36 R v Chalkley [1998] QB 848. 37 R v Rajcoomar [1999] Crim LR 728; R v Callaghan 5 March 1999, unreported; R v Hewitson and Bramich [1999] Crim LR 307; R v Thomas (Matthew) [2000] 1 Cr App R 447; R v Blackwood (Junior) 10 March 2000, unreported; R v MacDonald [1998] Crim LR 808. 38 R v Mullen [2000] QB 520. 39 See R v Christie (Albert) [1914] AC 545. 40 See R v Davis [2001] 1 Cr App R 8; R v Francom [2001] 1 Cr App R 17; R v Skuse [2002] EWCA Crim 991; Independent (17 June 2002); R v Botmeh (Jawad) [2001] EWCA Crim 2226; [2002] 1 WLR 531; R v Cranweli [2001] EWCA Crim 1216. 41 R v Togher [2001] 3 All ER 463. 42 R v Forbes [2001] 1 AC 473. 43 R v A [2001] 1 AC 473. 44 R v Lambert [2001] UKHL 37; [2002] 2 AC 545. 45 See Brown v Stott [2003] 1 AC 681; Randall v The Queen [2002] UKPC 19, [2002] 1 WLR 2237; Attorney General’s Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 AC 72; Bernard v Trinidad and Tobago [2007] UKPC 34, [2007] 2 Cr App R 22; Michel v The Queen [2009] UKPC 41, [2010] 1 WLR 879.

256  Stephanie Roberts not every departure from good practice will make a trial unfair and it is a matter of degree to be judged in each case. In R v Early and others,46 despite the defendants’ guilty pleas, the Court of Appeal quashed the convictions after the prosecution failed to inform the judge that some witnesses were informants in a Public Interest Immunity hearing, following Mullen and Togher.47 In R v Grant,48 the Court of Appeal quashed the conviction after covert listening devices were placed in the exercise yard at police stations. In R v Ali and another49 Moses LJ drew a distinction between when it had been unfair to try a defendant, and when a defendant may have received an unfair trial and when either would result in a conviction quashed. Moses LJ stated that: We acknowledge that in cases where it was unfair to try the defendant at all, because of bad faith or executive manipulation, the verdict itself may not be unsafe. But in general, where this court concludes that a hearing was unfair, it will not be able to avoid the conclusion that the verdict was unsafe.50

He continued: Safe verdicts depend upon a fair resolution of the issue of guilt or innocence. Attempts to draw a distinction between the fairness of the process and the safety of the verdict have, traditionally in this court, failed.51

This distinction between ‘unfair to try’ and ‘fair to try but an unfair trial’ is illustrated by the above cases so in this sense it could be argued that the Court of Appeal has been consistent. There is also some general guidance from these cases as to how the Court of Appeal defines ‘unfairness’. In R v Hanratty,52 Lord Woolf drew a distinction between ‘procedural flaws which are technical and those which are not’.53 He cited this speech by Lord Bingham in Randall v The Queen: There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial.54

It would appear that ‘technical’ unfairness does not always result in the conviction being quashed whereas gross procedural unfairness, as illustrated in Mullen,

46 R v Early and others [2002] All ER (D) 419. 47 See R v Gell [2003] EWCA Crim 123; and R v Choudhery [2005] EWCA Crim 1788 for appeals allowed in similar circumstances. 48 R v Grant [2005] All ER (D) 44. 49 R v Ali and another [2007] EWCA Crim 691. 50 ibid para 28. 51 ibid. 52 R v Hanratty [2002] EWCA Crim 1141. 53 ibid para 97. 54 [2002] UKPC 19, para 28.

Post-Conviction Review in England and Wales  257 will always result in a quashed conviction. But while the judges may make these distinctions, it is not clear how they decide what is ‘technical’ and what is ‘gross’. Procedural irregularity appeals are difficult to assess generally in light of the problems of defining concepts such as rights and fairness and the different approaches the Court of Appeal takes to these appeals; in this respect, Nobles and Schiff have a point. Although notions of rights, fairness, legitimacy and integrity are extremely important, they are difficult to enforce without a clear definition of what these terms mean in practice and when they will be instrumental in the overturning of a conviction. These terms are now fully integrated into the language of the Court of Appeal, and cases such as Mullen, although very rare, do emphasise that notions of rights and fairness have their own role to play in the jurisprudence of the Court of Appeal separate from just being considered in terms of the factual accuracy (or truth) of the verdict. If the Court of Appeal dismisses procedural errors because it thinks the appellant is guilty, this forces the appeal to be an examination of the factual accuracy of the verdict and then issues such as finality and truth of verdicts will remain the Court of Appeal’s main consideration rather than the broader issue of rights and fairness that Walker and others advocate. This makes it very difficult to predict when convictions will be overturned on the basis of procedural irregularities. There are also similar problems with factual error appeals. Factual error appeals have proved to be the most problematic for the Court of Appeal because they require it to trespass on the role of the jury. Much has been written about the Court’s reluctance to do this55 and, as a result, the Court of Appeal has the reputation of being more likely to overturn a conviction based on a procedural irregularity than one based on an error of fact.56 The two factual error grounds are ‘lurking doubt’ and ‘fresh evidence’, and both tend to be argued when the appellant is alleging that he or she is factually innocent. That is not to say that all appellants successful with these grounds will be factually innocent, but if an appellant is considered factually innocent it is more likely these grounds were argued. The lurking doubt ground was established in the case of R v Cooper57 and tends to be argued where there is no fresh evidence and no procedural irregularity but the appellant is asking the Court of Appeal to reassess the evidence in terms of whether it has a lurking doubt about the verdict.58 The RCCJ alluded to 55 See, eg, McCartney and Roberts (n 14); McCartney and Walker (n 8); Pattenden (n 13); Nobles and Schiff, Understanding Miscarriages of Justice (n 2); R Nobles and D Schiff, ‘The Right to Appeal and Workable Systems of Justice’ (2002) 65 Modern Law Review 676; Roberts, ‘Reviewing the Function of Criminal Appeals in England and Wales’ (n 14). 56 This is borne out by empirical studies on the judgments of the CA. See Ross (n 15); Seaborne Davies (n 15); Knight (n 15); Malleson, ‘Review of the Appeal Process’ (n 15); S Roberts, ‘Fresh Evidence and Factual Innocence in the Criminal Division of the Court of Appeal’ (2017) 8 Journal of Criminal Law 303. 57 R v Cooper [1969] 53 Cr App R 82. 58 For a general discussion on lurking doubt appeals, see L Leigh, ‘Lurking Doubt and the Safety of Convictions’ [2006] Criminal Law Review 809; L James, ‘Criminal Appeals and the Lurking Doubt’ (1990) 154 Justice of the Peace 780.

258  Stephanie Roberts associated problems when they stated that they ‘fully appreciate the reluctance felt by judges sitting in the Court of Appeal about quashing a jury’s verdict’ as ‘the jury has seen all the witnesses and heard their evidence; the Court of Appeal has not’.59 As a result of this, lurking doubt appeals are very rare and rarely successful.60 The Court of Appeal has recently expressed the view that, for constitutional reasons, this ground should be used in exceptional circumstances only.61 But there is some confusion as to whether the ground still exists. In R v Storey, Openshaw J stated that ‘in any event the lurking doubt test, if ever appropriate, is no longer the test applied by this court. The test is whether the conviction is safe’.62 However, despite this there are recent cases where lurking doubt is still being argued,63 and so it remains a confusing picture. The Court of Appeal was originally given wide powers under section 9 of the Criminal Appeal Act 1907 to adduce fresh evidence on appeal but it imposed its own restrictions from civil appeals which were that the evidence had to be credible and relevant to the issue of guilt,64 the evidence had to be admissible,65 and the evidence could not have been put before the jury.66 Although it may have been the intention of Parliament when enacting section 9 that the Court of Appeal would take an active role in hearing new evidence and reassessing the old evidence in the case, the Court of Appeal relied upon its review function and reverence for finality to adopt a restrictive approach.67 In 1966, the Donovan Committee heard evidence that the conditions the Court of Appeal had imposed on the reception of fresh evidence were too narrow and it recommended that additional evidence should be received if it was relevant and credible and there was a reasonable explanation for the failure to place it before the jury.68 These recommendations formed the basis of a late amendment to the Criminal Appeal Act 1966 which then became section 23 of the Criminal Appeal Act 1968. As a result of criticisms of the Court of Appeal’s approach to fresh evidence appeals, the RCCJ made various recommendations which were incorporated into section 23 with the aim of widening the scope of the receipt of fresh evidence by the Court of Appeal.69 The test in section 23(2)(a) was changed from ‘likely to be credible’ to ‘capable of belief ’ as this would be ‘a slightly wider formula giving the

59 RCCJ (n 15) ch 10, para 46. 60 For empirical research on the lurking doubt ground, see Malleson, ‘Review of the Appeal Process’ (n 15); S Roberts, ‘The Royal Commission on Criminal Justice and Factual Innocence: Remedying Wrongful Convictions in the Court of Appeal’ (2004) 1 JUSTICE Journal 86. 61 See Lord Judge CJ in R v Pope [2013] 1 Cr App R 214, para 14. See also the LCJ in R v Fanning [2016] 2 Cr App R 19. 62 R v Storey [2017] EWCA Crim 105, para 7. 63 See R v Jones [2017] EWCA Crim 1705; R v Ahmed [2017] EWCA Crim 1049. 64 R v Dunton [1908] 1 Cr App R 165. 65 R v Tellett [1921] 15 Cr App R 159. 66 R v Jones [1908] 2 Cr App R 1. 67 See R v Parks [1962] 46 Cr App R 29. 68 Donovan Committee (n 15) para 136. 69 Criminal Appeal Act 1995, s 4.

Post-Conviction Review in England and Wales  259 Court of Appeal greater scope for doing justice’.70 There were two amendments which would arguably have resulted in the Court of Appeal taking an even more restrictive approach to fresh evidence appeals: (i) the duty to admit evidence under section 23 if the requirements of section 23(2) are fulfilled was abolished and replaced with a discretion; and (ii) the Court of Appeal’s rarely used power to rehear the evidence presented at the trial was abolished.71 However, despite these changes fresh evidence appeals continue to be very rare and difficult to succeed with, largely because of the Court of Appeal’s reverence for finality and deference to the jury.72 The Court of Appeal’s approach to procedural error and factual error appeals indicates why it may perpetuate miscarriages of justice as well as rectifying them. While Walker’s view that rights and fairness should be safeguarded regardless of the factual accuracy of the verdict has also been the view of the Court of Appeal, it is very difficult to predict which procedural errors will result in a conviction being overturned. Also, while Walker has criticised the reliance placed by Nobles and Schiff on what he calls ‘narrower values’ such as finality and ‘truth’ (of verdicts), these can result in a restrictive approach being taken by the Court of Appeal so they do need to be addressed. The problems associated with the Court of Appeal also cause difficulties for the CCRC which will now be discussed.

III.  The Criminal Cases Review Commission The CCRC was established by the Criminal Appeal Act 1995 after a recommendation by the RCCJ, replacing what had previously been known as the Home Secretary’s Reference.73 It began work on 1 April 1997. The problems associated with the Home Secretary’s Reference have been well documented.74 The CCRC has been widely accepted as a vast improvement on the previous system but as McCartney and Walker have stated: In terms of design, the CCRC is an important and innovative reform that does recognise the possibility of residual error and places state facilities on call for their correction. However, there are increasing criticisms levelled at the performance of the CCRC, including their decision-making processes, their resources, and ultimately their remit.75 70 RCCJ (n 15) ch 10, para 55. 71 Criminal Appeal Act 1995, s 4(1)(a). 72 See Malleson, ‘Review of the Appeal Process’ (n 15); Roberts, ‘Fresh Evidence and Factual Innocence in the Criminal Division of the Court of Appeal’ (n 56). 73 Criminal Appeal Act 1968, s 17. 74 See N Taylor and M Mansfield, ‘Post-Conviction Procedures’ in C Walker and K Starmer (eds), Miscarriages of Justice: A Review of Justice in Error (London, Blackstone Press, 1999) 229; P O’Connor, ‘The Court of Appeal: Re-trials and Tribulations’ [1990] Criminal Law Review 615; D Malet, ‘The New Regime For The Correction of Miscarriages of Justice’ (1995) 159 Justice of the Peace 716; R Nobles and D Schiff, ‘The Criminal Appeal Act 1995: The Semantics of Jurisdiction’ (1996) 59 Modern Law Review 573. 75 McCartney and Walker (n 8) 197.

260  Stephanie Roberts The CCRC has the power to refer cases to the Crown Court and the Court of Appeal  on conviction or sentence arising from England, Wales and Northern Ireland. To emphasise independence, the CCRC is not to be ‘regarded as the servant or agent of the Crown’.76 There should be no fewer than 11 commissioners77 and one-third have to be legally qualified78 with two-thirds having to have knowledge or experience of any aspect of the criminal justice system.79 References can be made to the Court of Appeal to review a conviction;80 a sentence other than one fixed by law;81 a verdict of not guilty by reason of insanity;82 or a finding that a person under a disability did the act or omission charged against him.83 Once the reference has been made it is treated as a normal appeal and leave is not required on the grounds referred but it will be required on any additional grounds.84 To refer a case, the CCRC is given statutory guidance under section 13, which states that there must be a ‘real possibility’ arising from an argument or evidence that was not raised during the trial or at appeal, or from ‘exceptional circumstances’ that the conviction or sentence would not be upheld. It is difficult to define what ‘real possibility’ means, but in R v CCRC Ex Parte Pearson Lord Bingham stated that a real possibility ‘plainly denotes a contingency which, in the CCRC’s judgment, is more than an outside chance or a bare possibility, but which may be less than a probability or a likelihood or a racing certainty’.85 McCartney and Walker have argued that a more radical solution would have been to give the CCRC the power to determine applications or at least to make recommendations to the Court of Appeal either to acquit or to order a retrial, but as they point out this could have been seen as interfering too much with judicial independence and the finality of verdicts.86 Under section 17 Criminal Appeal Act 1995, the CCRC has a very wide power to obtain documents from public bodies and, under section 18A, from a private individual or organisation.87 Under section 19, the CCRC has the power to require an ‘appropriate person’ from the public body that carried out the original investigation to appoint an investigating officer to carry out enquiries. Where the public body was a police force, the appropriate person will be the chief constable of that force. This was a controversial measure when the CCRC was created88 and as McCartney and Walker have stated, ‘this relationship represents a major

76 Criminal

Appeal Act, s 8(2). s 8(3). 78 ibid s 8(5). 79 ibid s 8(6). 80 ibid s 9(1). 81 ibid s 9(3). 82 ibid s 9(5). 83 ibid s 9(6). 84 Criminal Justice Act 2003, s 315. 85 R v CCRC Ex Parte Pearson [2000] 1 Cr App R 141, 149. 86 McCartney and Walker (n 8) 196. 87 Inserted by the Criminal Cases Review Commission (Information) Act 2016. 88 Malet (n 74) 716. 77 ibid

Post-Conviction Review in England and Wales  261 concern for the future effectiveness of the CCRC’.89 This power has been used on 50 occasions.90 The CCRC’s powers are not just limited to section 17 and section 19 because, under section 21 Criminal Appeal Act 1995, it can make any enquiries and investigations it deems necessary. Under section 15 Criminal Appeal Act 1995 and section 23A Criminal Appeal Act 1968, the Court of Appeal can ask the CCRC to carry out investigations on its behalf. This can apply to any case. In 2016/17 the CCRC received one section 15 direction from the Court of Appeal. That compares with 10 in 2012/13 and there has been a total of around 70. They have mainly involved possible jury bias.91

IV.  Evaluating Performance There are a number of ways in which the performance of the CCRC can be evaluated and the first of these is its workload and budget. The CCRC’s budget is set by the Ministry of Justice and it is a source of major concern each year. In January 2014, the current chairman, Richard Foster, stated that ‘we had a period, from 2008–09 until this year, in which we had no increase in funding at all, so in real terms our budget is 25% less than it was in 2008–09’.92 In 2015, Richard Foster stated that the uncertainly over the budget meant that it was difficult to plan, particularly around the recruitment of staff.93 In 2015/16 the budget was £5.40 million and there was a slight increase in 2016/17 to £5.43 million. Foster has argued that the CCRC would need an additional £1 million to clear its backlog.94 The CCRC has been criticised for its workload and backlog.95 According to the 2016/17 Annual Report they made major changes to the manner in which they carry out their casework through 2014/15 and 2015/16, and during 2016/17 they ‘have been engaged in consolidation of those alterations, with particular focus on the associated culture changes and on our longer-running reviews’.96 From March 2016 to March 2017 they managed to reduce maximum waiting times to 89 McCartney and Walker (n 8) 196. 90 Justice Committee, Criminal Cases Review Commission (HC 2014–15, 850). Richard Foster giving oral evidence at Q107. 91 See CCRC, Annual Report and Accounts 2016–2017 (London, The Stationery Office, 2017) 26. 92 Richard Foster, oral evidence to the House of Commons Justice Committee, 14 January 2014. Q1: data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/justice-committee/ the-work-of-the-criminal-cases-review-commission/oral/5318.pdf. This was reiterated in Q131 oral evidence by Richard Foster to the House of Commons Justice Committee, 6 February 2015: data. parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/justice-committee/ criminal-cases-review-commission/oral/17993.pdf. 93 ibid Q110. 94 ibid, January 2014, Q15. 95 See A James, N Taylor and C Walker, ‘The Criminal Cases Review Commission: Economy, Effectiveness and Justice’ [2000] Criminal Law Review 140; R Nobles and D Schiff, ‘The Criminal Cases Review Commission: Reporting Success’ (2001) 64 Modern Law Review 280; McCartney and Walker (n 8); McCartney and Roberts (n 14); Roberts and Weathered (n 27). 96 CCRC, Annual Report and Accounts 2016–2017 (n 91) 12.

262  Stephanie Roberts allocation from six months to five months for custody cases and from 19 months to 11 months for ‘at liberty’ cases.97 While these may be an improvement, applicants are still kept waiting some time before their case is even allocated to a case review manager. The CCRC’s working practices may then delay this further.98 One of the major issues is the rise in applications. In 2010/11 there were 933 applications but in 2015/16 there were 1,480 applications and similarly in 2016/17, there were 1,397 applications.99 If this level of applications is the new norm then it is hoped that more money will be allocated by the government, rather than returning to the early years when the backlog was much larger.100 The second way the CCRC’s performance can be evaluated is by looking at its referral rate. This is illustrated in Table 1 below: Table 1  Cases referred to the Court of Appeal Year

Cases referred

As % of cases concluded

2016/17

12

0.77

2015/16

33

1.8

2014/15

36

2.2

2013/14

31

2.7

2012/13

21

1.6

As the table shows, in 2016/17 the CCRC referred 12 cases to the Court of Appeal which was considerably lower than the previous three years. This means that they referred 0.77 per cent of the 1,563 cases concluded that year. In 2015/16 the referral rate was 1.8 per cent (33 cases); in 2014/15 it was 2.2 per cent (36 cases); in 2013/14 it was 2.7 per cent (31 cases); and in 2012/13 it was 1.6 per cent (21 cases). The CCRC’s long-term referral rate stands at 3.30 per cent.101 In their 2016/17 Annual Report, the CCRC commented on the very low number that year: ‘we do not think that this unusually low percentage is a long term reduction in the number of miscarriages of justice or the CCRC’s ability to detect and refer them’.102 They attribute the reduction instead to the fact that the majority of referrals are single individuals and there were no ‘themes’ where groups of people may be referred under a single issue.103 This referral rate has been criticised; for example, 97 ibid 13. 98 For a discussion of the CCRC’s working practices see McCartney and Walker (n 8); Walker, ‘Nobles, R, and Schiff, D, Understanding Miscarriages of Justice’ (n 3); C Walker and C McCartney, ‘Forensic Identification and Miscarriages of Justice in England and Wales’ in X Mallett, T Blythe and R Berry (eds), Advances in Forensic Human Identification (Boca Raton, FL, CRC Press, 2014) 391. 99 It is worth noting that the CCRC has made efforts to improve accessibility, such as by providing easier application forms. 100 See James, Taylor and Walker (n 95); Home Affairs Committee, The Work of the Criminal Cases Review Commission (HC 1998–99, 106). 101 CCRC, Annual Report and Accounts 2016–2017 (n 91) 14. 102 ibid. 103 A major theme recently for the CCRC has been a large number of wrongful conviction cases of refugees and asylum seekers. See C Hoyle, M Sato and N Speechley, ‘Wrongful Convictions of Refugees

Post-Conviction Review in England and Wales  263 it has been suggested that the CCRC is taking a restrictive approach to the real possibility test in second guessing the Court of Appeal.104 Richard Foster defended the approach of the CCRC saying: [Y]ou have to put yourself in the minds of the Court of Appeal and say, ‘Are there any grounds here that I think would count with the Court of Appeal?’ Otherwise, if you do not do that – if that is not the test that you are operating – you are at risk of sending to the Court of Appeal a lot of cases that they will simply bin.105

Writing in 2010, McCartney and Walker argued that: A significant barrier to CCRC referrals … relates to their inherent cautionary approach and their internal decision-making protocols. It takes just a single commissioner to refuse referral, but it requires three to refer, making decisions about whether to refer cases weighted in favour of nonreferral.106

They go on to say that if the case review manager is also applying this test before referring the case to a commissioner he or she is applying a ‘real possibility of a real possibility test’ which would be particularly restrictive.107 The third way the CCRC’s performance can be evaluated is by looking at their ‘success’ rate at the Court of Appeal. As of 31 December 2017, the CCRC has referred 636 cases to the Court of Appeal. Of the 629 where the appeal has been heard by the Court, 421 appeals have been allowed and 195 dismissed. This represents an overall ‘success’ rate of 67 per cent of the appeals heard. This rate calculated annually has been dropping in recent years as illustrated by Table 2 below: Table 2  Successful appeals at the Court of Appeal Year

‘Success’ rate %

2016/17

46

2015/16

53

2014/15

55

2013/14

73

2012/13

69

2011/12

58

and Asylum Seekers: Responses by the Criminal Cases Review Commission’ (2017) 2 Criminal Law Review 106. 104 See, eg, M Naughton, ‘Introduction’ in M Naughton (ed), The Criminal Cases Review Commission, Hope for the Innocent? (Basingstoke, Palgrave Macmillan, 2010) and subsequent chapters. 105 Richard Foster, oral evidence to the House of Commons Justice Committee, 14 January 2014. Q23: data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/justice-committee/ the-work-of-the-criminal-cases-review-commission/oral/5318.pdf. 106 McCartney and Walker (n 8) 198. 107 ibid.

264  Stephanie Roberts As the table shows there has been a significant drop in the success rate more recently. In 2011/12 the figure was 58 per cent; in 2012/13 the figure was 69 per cent; in 2013/14 the figure was 73 per cent; and in 2014/15 the figure was 55 per cent. However, in 2015/16 the figure dropped to 53 per cent and dropped further still in 2016/17 to 46 per cent.108 The difficulty for the CCRC is if the success rate at appeal is too high, it appears that the CCRC has set a prohibitive threshold for referral by sending only those certain to win. However, if the successful appeal rate is too low, then it appears that the CCRC is sending weak cases with little chance of success. It is a difficult balance and the CCRC has been criticised for being overly cautious.109 In 2015, when giving evidence to the latest Justice Committee review, chairman Richard Foster denied they were too cautious stating that ‘it is very difficult to look at anything that would give you an independent sightline on what the percentage ought to be’.110 The lower ‘success’ rate in 2016/17 may mean that the CCRC was being less cautious in its referrals and referring cases with less chance of success, but the fact that only 12 were referred in 2016/17 may refute this. A further criticism faced by the CCRC is the argument that it should focus more on innocence. The CCRC can refer a case where there is a real possibility that the conviction will not be upheld, which means it refers cases under both interpretations of ‘unsafe’. Its work is thus not restricted to just those who maintain innocence. This approach has been criticised by Naughton: The CCRC’s dependence on the criteria of the appeal courts has the knock-on effect that its reviews are merely safety checks on the lawfulness or otherwise of criminal convictions, as opposed to the kind of in-depth inquisitorial investigations that seek the truth of the claims of innocence by alleged victims of miscarriages of justice in the way that was expected by the RCCJ.111

As a result of this perceived reluctance of the CCRC to involve itself in ‘innocence’ claims, Naughton states that there is then a need for a body that, ‘unlike the CCRC, is not bound to the criteria of the appeal courts and is sufficiently resourced and empowered so that it is not dependent on government’,112 although he does not explain how such a body would be funded or operate. In defence of the CCRC’s position, Richard Foster has stated: I would certainly argue very strongly against some sort of innocence test, because demonstrating that a conviction is unsafe is a much lower hurdle than demonstrating

108 CCRC, Annual Report and Accounts 2016–2017 (n 91) 6. 109 See Justice Committee (n 90) published Written Evidence of Bob Woffinden, Paul May, Michael Zander, Glynn Maddocks, and Cardiff University Law School Innocence Project. 110 Oral evidence by Richard Foster to the House of Commons Justice Committee, 6 February 2015, Q115: data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/justicecommittee/criminal-cases-review-commission/oral/17993.pdf. 111 M Naughton, ‘Conclusion’ (n 104) 233. 112 ibid 225.

Post-Conviction Review in England and Wales  265 evidence, once somebody has been convicted, that they are actually innocent or that it is probable that they are innocent, so I would want to stick with that.113

If the CCRC believes there is a greater chance of success with a procedural or technical ground of appeal, then it is going to increase its chances of success if referring on that basis. This benefits those who are factually innocent, who are most often seriously hampered by the ‘invisibility’ of their innocence: ‘innocence is not something that exists, out there, to be touched, felt, or measured, any more than guilt’.114 To demand proof of factual innocence as a threshold for appellants would raise the bar to a prohibitive level. This is where procedural and legal issues are critical, as these are often visible on the face of documents and materials initially reviewed, rather than buried deep in a case, requiring significant investigation to uncover. Downgrading the importance of due process arguments would be unworkable in practice, and it should be the role of an appellate court to uphold the integrity of the trial process and protect the right to a fair trial, which is conducted according to law, regardless of guilt or innocence. While the CCRC can perhaps be criticised for being too cautious in its relationship with the Court of Appeal,115 there is little point in having a body, such as the CCRC, referring cases without regard to the powers and procedures of the Court of Appeal. Therefore, it is perhaps better to look to reforming the Court of Appeal to make that institution more receptive to factual innocence claims in factual error appeals. It was the conclusion of the House of Commons Justice Committee in 2015 that ‘the CCRC is performing its functions reasonably well’.116 The Committee could see no conclusive evidence that the CCRC was failing to apply the ‘real possibility’ test correctly in the majority of cases. They accepted that application of the test is a difficult task and is by no means a precise science, but where potential miscarriages of justice are concerned we consider that the CCRC should be willing to err on the side of making a referral. The Commission should definitely never fear disagreeing with, or being rebuked by, the Court of Appeal.117

They recommended that the CCRC be less cautious in its approach to the real possibility test. They further stated that they were concerned that there may be some miscarriages of justice which are going uncorrected because of the difficulty the CCRC faces in getting some such cases past the threshold of “real possibility”, as a result of the Court of Appeal’s approach.118 113 Richard Foster, oral evidence to the House of Commons Justice Committee, 14 January 2014, Q23: data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/justice-committee/ the-work-of-the-criminal-cases-review-commission/oral/5318.pdf. See also H Quirk, ‘Identifying Miscarriages of Justice: Why Innocence in the UK is Not the Answer’ (2007) 70 Modern Law Review 759 who argues that a test of innocence is not the solution to the problem of low referral rates. 114 See R Nobles and D Schiff, ‘Guilt and Innocence in the Criminal Justice System: A Comment on R (Mullen) v Secretary of State for the Home Department’ (2006) 69 Modern Law Review 80, 90. 115 See R Nobles and D Schiff, ‘The Criminal Cases Review Commission: Establishing a Workable Relationship with the Court of Appeal’ [2005] Criminal Law Review 173. 116 Justice Committee (n 90) part 4, para 54. 117 ibid, ‘Conclusions and Recommendations’, para 2. 118 ibid para 4.

266  Stephanie Roberts They went on to say that: While it is important that the jury system is not undermined, properly directed juries which have seen all of the evidence may occasionally make incorrect decisions. The Court’s jurisprudence in this area, including on ‘lurking doubt’, is difficult to interpret and it is concerning that there is no clear or formal mechanism to consider quashing convictions arising from decisions which have a strong appearance of being incorrect. Any change in this area would require a change to the Court of Appeal’s approach, which would itself require a statutory amendment to the Court’s grounds for allowing appeals. We are aware that this would constitute a significant change to the system of criminal appeals in this country and that it would qualify to a limited extent the longstanding constitutional doctrine of the primacy of the jury. Neither of these things should be allowed to stand in the way of ensuring that innocent people are not falsely imprisoned.119

The Committee recommended that the Law Commission review the Court of Appeal’s grounds for allowing the appeal. However, this was rejected by the then Minister for Justice, Michael Gove, seemingly on the assurance from the former Lord Chief Justice, Lord Justice Judge. The Law Commission shortlisted the issue as a possible area of enquiry in response to an open call for subject areas but it was not included in the topics chosen to investigate.

Conclusion A very brief analysis of the history of miscarriages of justice was carried out by Lord Steyn in the House of Lords case of R v Mirza and R v Connor and another.120 He stated that: Nowadays we know that the risk of a miscarriage of justice, a concept requiring no explanation is ever present. In earlier times courts sometimes approached the risk of a miscarriage of justice in ways which we would not nowadays find acceptable.

He referred to the fact that in 1980 the Court of Appeal denied the Birmingham Six the right to sue the police in civil proceedings citing Lord Denning MR’s now infamous comment that ‘this is such an appalling vista that every sensible person in the land would say it cannot be right that these actions should go any further’.121 He also referred to Lord Devlin’s comment that the cases of the Birmingham Six, the Maguire Seven and the Guildford Four were ‘the greatest disasters that have shaken British justice in my time’.122 Lord Steyn referred to the RCCJ and the setting up of the CCRC and made reference to ‘a more general change in



119 ibid. 120 R

v Mirza; R v Connor and another [2004] UKHL 2, para 4. in McIlkenny v Chief Constable of the West Midlands [1980] QB 28. 122 P Devlin, ‘The Conscience of the Jury’ (1991) 107 Law Quarterly Review 398. 121 Cited

Post-Conviction Review in England and Wales  267 legal culture’123 citing the case of R v Secretary of State for the Home Department, Ex p Simms124 where, ‘in the face of some 60 miscarriages of justice in the 1990s, the House of Lords set aside Home Office instructions denying prisoners access to journalists in their efforts to get their convictions overturned’.125 It is not entirely clear whether we are living in more enlightened times. It is still very difficult to succeed with factual error appeals and while it is easier to succeed with an appeal based on a procedural irregularity, these appeals are not without their problems. While it is the role of the Court of Appeal to uphold the integrity of the criminal justice system, deciding which procedural errors will result in the conviction being quashed is difficult to determine. All these appeals cause problems for the CCRC which has to try and predict whether the Court of Appeal will quash the conviction if they refer. The CCRC has been welcomed as a muchneeded addition to the extant appeal avenues in England and Wales and, while it can be criticised in some areas, it deserves praise for the good work that it has done over the last 20 years. It acknowledges that additional funds are needed to improve its performance and now might be the time to review its remit and statutory powers to ensure it has the funds to cope with the demands made of it. It is unfortunate that Michael Gove chose not to allow the Law Commission to review the Court’s grounds for allowing appeals, but as history has shown the Court of Appeal’s powers have been continually changed to liberalise its approach without much success. So for now, the Court of Appeal and the CCRC will continue both perpetuating and rectifying miscarriages of justice unless their powers, remit and funding are thoroughly addressed. As Walker himself has previously concluded: Criminal justice systems should be judged, inter alia, by the number of injustices produced by them in the first place, and, secondly, by their willingness to recognise and correct those mistakes. The British system could improve on both counts. The institution of the CCRC is much to its credit, but the failure to reform the Court of Appeal may yet undermine its future.126



123 [2004]

UKHL 2, para 4. v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115. 125 [2004] UKHL 2, para 4. 126 Walker, ‘Miscarriages of Justice and the Correction of Error’ (n 8) 522. 124 R

268 

16 Justice Denied? Compensation for Miscarriages of Justice hannah quirk and colin king Introduction On 19 October 1989, the convictions of the Guildford Four were quashed, 15 years after their wrongful convictions on terrorism-related charges. Other highprofile appeals followed with bewildering rapidity including the Birmingham Six, Maguire Seven, Tottenham Three, Stefan Kiszko, Judith Ward and the Cardiff Three. This led to a growing public concern about miscarriages of justice. Anger with the judiciary led to unprecedented calls in Parliament and the press for the Lord Chief Justice to step down.1 On the day the Birmingham Six had their ­convictions quashed (6 March 1991), the government announced the establishment of the ‘Runciman’ Royal Commission on Criminal Justice (RCCJ) ‘to examine the effectiveness of the criminal justice system in England and Wales in securing the conviction of those guilty of criminal offences and the acquittal of those who are innocent’.2 Just before the RCCJ reported in 1993, Clive Walker and Keir Starmer’s edited collection Justice in Error3 was published. It was followed in 1999 by Miscarriages of Justice: A Review of Justice in Error.4 While inevitably some of the material has dated, the books remain essential reading for scholars and students of miscarriages of justice. The landscape in relation to wrongful convictions has changed considerably since the first volume: the improvements in police practices introduced by the Police and Criminal Evidence Act 1984 (PACE) have become embedded,

1 Early Day Motion 611, tabled 15 March 1991, received 113 signatures (‘That an humble Address be presented to Her Majesty, praying that she will be pleased to remove the Lord Chief Justice from office’). An editorial in The Times suggested that ‘He should not be hounded out of office. But he should retire, as soon as judicial dignity allows’ (‘Blaming Lord Lane’, 19 March 1991). 2 The Royal Commission on Criminal Justice, Report Cm 2263 (London, HMSO, 1993) i. 3 C Walker and K Starmer (eds), Justice in Error (London, Blackstone Press, 1993). 4 C Walker and K Starmer (eds), Miscarriages of Justice: A Review of Justice in Error (London, Blackstone Press, 1999).

270  Hannah Quirk and Colin King and the independent Crown Prosecution Service is now well established.5 Most significantly, between the two books being published, the Criminal Cases Review Commission (CCRC) was established as the first state-funded body in the world to investigate alleged miscarriages of justice.6 It must be recognised, however, that – as Walker noted in 1999 – ‘change has not been unidirectional, and so progress must also be balanced with retrograde measures’.7 Concerns have grown about flawed forensic evidence,8 non-disclosure of unused material to the defence,9 and the damage caused by cuts to legal aid, police and prosecution budgets.10 This chapter focuses on one area where the situation is unquestionably – and ­intentionally – worse for the wrongly convicted since Walker first began writing in this area, namely their entitlement to compensation.11 In 1999, Walker noted: ‘The [compensation] schemes are niggardly in their scope [and] grossly inefficient in their operation’.12 As it turned out, this was to be the high-water mark for compensation in such cases. As is explained below, in 2006, then Home Secretary, Charles Clarke, abolished the ex gratia compensation scheme.13 The courts narrowed eligibility through the statutory scheme14 and in 2014 Parliament further reduced its scope.15 These most recent restrictions confine compensation to those who can prove that they did not commit the crime – a test that jars with the tenet of criminal justice that the burden of proof lies with the prosecution. The measures are currently being challenged before the Supreme Court (the hearing was held

5 Prosecution of Offences Act 1985. See Justice Committee, The Crown Prosecution Service: Gatekeeper of the Criminal Justice System (2008–09, HC 186). 6 Criminal Appeal Act 1995, Part II. 7 C Walker, ‘The Agenda of Miscarriages of Justice’ in C Walker and K Starmer (eds), Miscarriages of Justice: A Review of Justice in Error (London, Blackstone Press, 1999) 30. 8 See ch 14 (McCartney) in this collection. 9 HMCPSI and HMIC, Making it Fair: A Joint Inspection of the Disclosure of Unused Material in Volume Crown Court Cases (July 2017). The Justice Select Committee launched an inquiry into the subject following the halting of the trial of Liam Allan (22 February 2018), see: www.parliament.uk/ business/committees/committees-a-z/commons-select/justice-committee/news-parliament-2017/ disclosure-evidence-criminal-cases-launch-17-19. 10 Jane Croft, ‘Grim verdict delivered over deep cuts to legal aid’ Financial Times (7 March 2014); The Right to Justice: The Final Report of the Bach Commission (The Fabian Society, September 2017). 11 Our focus is on compensation in England and Wales. Scotland has a different appellate test and retains both the statutory and ex gratia schemes. Northern Ireland cases are dealt with by the Department of Justice in Belfast, other than where the case involves questions of national security or protected information (Daniel Holder, ‘An end to miscarriages of justice? (Rights NI, 14 March 2014), available at: rightsni.org/2014/03/an-end-to-miscarriages-of-justice/#_ftn5. 12 Walker, ‘The Agenda of Miscarriages of Justice’ (n 7) 23. 13 HC Deb, Written Ministerial Statement, 19 April 2006, vol 445, col 15WS (Charles Clarke). Unsurprisingly, this action was met with criticism: see G Langdon-Down, ‘State of Denial’ Law Society Gazette (12 May 2006). Judicial review of this decision was, however, unsuccessful: R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755. For further discussion of the ex gratia scheme, see J Spencer, ‘Compensation for Wrongful Imprisonment’ [2010] Criminal Law Review 803, 805 et seq. 14 See, eg, R v Secretary of State for the Home Department, ex parte Mullen [2004] UKHL 18. 15 The Anti-social Behaviour, Crime and Policing Act 2014, s 175(1) inserting a new s 133(1ZA) into the Criminal Justice Act 1988.

Compensation for Miscarriages of Justice  271 in May 2018).16 Under the current rules, were the Guildford Four or Birmingham Six to be released today, they would not be entitled to compensation.17 In this chapter, we argue that the restrictions in compensation have mirrored and magnified the deterioration of defendants’ rights and the presumption of innocence in statutory and policy changes over the last 25 years. This is of concern in this jurisdiction and offers a warning to other countries.

I.  Determining Eligibility for Compensation It is important at the outset to consider what is meant by a miscarriage of justice, for [a]s with art or beauty, while most people believe they would recognise a miscarriage of justice if they saw it, the expression lacks an agreed definition, and can vary in meaning depending on the context in which it is used.18

Walker’s broad taxonomy,19 covering a spectrum from unjust laws to the conviction of the innocent, is valuable to scholars. It has long been recognised that ‘miscarriage of justice’ means different things in legal and lay terms.20 Journalists tend to use the term in relation to the conviction of the innocent or (occasionally) a failure to convict the guilty; the legal definition is more complex, however. With regard to compensation, the courts have held that ‘miscarriage of justice’ has an autonomous meaning which is narrower than in other contexts,21 and that the mere quashing of a conviction does not automatically trigger entitlement to compensation.22 This approach is often upsetting for those who are acquitted yet then denied compensation, and raises interesting questions about underlying assumptions about defendants in the criminal justice system. In order to reduce the risk of wrongful convictions, the criminal justice system is asymmetrical. In a criminal trial, the focus is on whether a defendant is guilty or not guilty, with the burden of proof resting on the prosecution to establish guilt

16 R (on the application of Nealon) (Appellant) v Secretary of State for Justice (Respondent) UKSC 2017/0001. R (on the application of Hallam) (AP) (Appellant) v Secretary of State for Justice (Respondent) UKSC 2016/0227 Permission granted: Supreme Court, ‘Permission to appeal decision’, available at: www.supremecourt.uk/news/permission-to-appeal-decision-13-april-2017.html. Cases heard on 8 and 9 May 2018. 17 JUSTICE, Anti-Social Behaviour, Crime and Policing Bill. Written evidence to the Joint Committee on Human Rights and the Public Bill Committee (June 2013) para 56. 18 H Quirk, ‘Identifying Miscarriages of Justice: Why Innocence in the UK is Not the Answer’ (2007) 70 Modern Law Review 759, 759. 19 C Walker, ‘Miscarriages of Justice in Principle and Practice’ in C Walker and K Starmer (eds), Miscarriages of Justice: A Review of Justice in Error (London, Blackstone Press, 1999) 31 et seq. 20 R Nobles and D Schiff, Understanding Miscarriages of Justice: Law, the Media, and the Inevitability of Crisis (Oxford, Oxford University Press, 2002). 21 R (on the application of Ali) v Secretary of State for Justice [2013] EWHC 72 (Admin) para 4. 22 See R (Adams) v Secretary of State for Justice [2011] UKSC 18 (Adams).

272  Hannah Quirk and Colin King beyond reasonable doubt. If the prosecution fails to discharge its burden, then a person is declared not guilty, ‘irrespective of whether he is in fact innocent’.23 At the appeal stage, the courts do not consider the guilt or innocence of an ­appellant, only whether the conviction is ‘unsafe’.24 Successful appeals fall into one of three categories (although the Court of Appeal rarely identifies which): the rare instances of proof of actual innocence;25 the problematic situations in which the factually guilty are acquitted due to procedural flaws or misconduct;26 and the vast majority of appeals which are allowed because the court is not sure that the jury would have convicted had it heard the new evidence or argument on which the appeal was based.27 It is relatively settled that all of these should have their convictions quashed to maintain due process; the question for the purposes of this chapter is whether they should all be compensated. There are three levels of appeal – what Naughton28 terms mundane, routine and exceptional appeals. This is the first way in which eligibility for compensation is narrowed. Those convicted at the magistrates’ court have an automatic right of appeal which takes the form of a rehearing at the Crown Court.29 Those convicted at the Crown Court may apply within 28 days for leave to appeal on a point of law or new evidence.30 The third level of appeal concerns those who are granted an appeal via the CCRC, having either lost their first appeal or not previously appealed – a process that inevitably takes time. It is only this last, very small, group that is eligible, even in principle, for compensation. The rationale for this is presumably that the criminal justice system could not function if compensation was due for every intervention by the police and prosecution that did not result in conviction and that this is a price to be paid for living under the rule of law – of course this is a cost that falls disproportionately on certain groups and individuals. Some authors have contended that the system is working properly (that is, no miscarriage of justice has occurred), if individuals are excluded from investigations or are acquitted at any stage up to and including a first appeal. After conviction, however, that argument is more difficult to sustain as an official finding of censure has been made and the convicted person may have suffered serious detriment. Although legally considered innocent after a closed investigation, acquittal or a successful appeal, a stain can still attach to the reputation of the individual

23 ibid para 116 (Lady Hale). 24 Criminal Appeal Act 1968, s 2 (as amended); R v Hickey, CA (Criminal Division) unreported, 30 July 1997. 25 eg, Stefan Kiszko. See Andy McSmith, ‘Miscarriage of justice corrected as jury finds man guilty of murder’ The Independent (13 November 2007). 26 eg, R v Mullen [1999] EWCA Crim 278. 27 Such as in the case of Barry George. 28 M Naughton, Rethinking Miscarriages of Justice: Beyond the Tip of the Iceberg (Basingstoke, Palgrave Macmillan, 2007) ch 2. 29 Magistrates’ Court Act 1980, s 108. 30 The law relating to appeals from the Crown Court against conviction or sentence is largely contained in the Criminal Appeal Act 1968, the Criminal Appeal Act 1995, Criminal Procedure Rules Parts 65 and 68, and the Consolidated Criminal Practice Direction. See CPS, ‘Legal Guidance: Appeals to the Court of Appeal’, available at: www.cps.gov.uk/legal-guidance/appeals-court-appeal.

Compensation for Miscarriages of Justice  273 and this appears to have affected the debate on compensation. In almost any other sphere, if a person is mistreated or even merely inconvenienced, there is an expectation of compensation. A train journey delayed by more than half an hour triggers a refund, whether or not it is the company’s fault,31 yet a person can spend years in prison and still not be entitled to compensation. Civil remedies can be sought for unlawful arrest or malicious prosecution, but these do not apply in most cases and are notoriously difficult due to evidential difficulties, the passage of time and, arguably, judicial distaste for such actions.32

II.  Purpose of Compensation In the 1990s and early 2000s significant monetary settlements were made to victims of miscarriages of justice.33 While no amount of money could make up for the lost years, opportunities and psychiatric harm that they had suffered,34 it could assist with their everyday needs and in accessing treatment. The payment system does not recognise the vulnerability of these individuals and the added pressure that suddenly having a large sum of money can bring. In relation to the Guildford Four, Alastair Logan (Patrick Armstrong’s solicitor) argued unsuccessfully that the compensation should be administered by means of a trust.35 Gerry Conlon said that being given a lump sum of money was akin to being given whiskey and a gun and told to go and shoot himself.36 Paddy Hill, of the Birmingham Six, has spoken of using the money to buy the affection of family members.37 Many have ended up in financial hardship having squandered the payments. When a conviction is quashed, the individual is freed from court with none of the support that a properly sentenced offender receives: gradual release for life-sentenced prisoners, resettlement, accommodation, a probation officer. The only state support available is that provided by the Royal Courts of Justice Advice

31 See, eg, Virgin Trains, ‘Automatic Delay Repay’, available at: www.virgintrains.co.uk/delayrepay/ automatic. 32 When stopping the Birmingham Six’s civil action against the police for assault, Lord Denning made his notorious ‘appalling vista’ comment: ‘If the six men win, it will mean that the police were guilty of perjury, that they were guilty of violence and threats, that the confessions were involuntary and were improperly admitted in evidence, and that the convictions were erroneous … This is such an appalling vista that every sensible person in the land would say: “It cannot be right that these actions should go any further”’. McIlkenny v Chief Constable of the West Midlands [1980] QB 283, [1980] 2 All ER 227, [1980] 2 WLR 689 1980, 323D. 33 eg, the Birmingham Six were eventually awarded compensation ranging from £840,000 to £1.2m each. Jon Robins, ‘Birmingham Six member Paddy Hill on why the challenges facing the wrongly convicted are more severe than ever’ The Independent (12 March 2016). 34 See BBC News, ‘No amount of compensation is enough’ (19 April 2006). 35 P Armstrong, Life After Life (Dublin, Gill Books, 2017). 36 Richard Holt, ‘Gerry Conlon: Tony Blair lied to us, his apology meant nothing’ The Telegraph (22 June 2014). 37 Quoted in Amelia Hill, ‘Paddy Hill: “All I think about is shooting police. I am traumatised”’ The Guardian (4 November 2010).

274  Hannah Quirk and Colin King Bureau.38 John Kamara, released from prison in 2000 after 19 years, was ‘[h]anded £46 and a travel pass that ran out at 8pm, he rejoined the world with only the clothes on his back’.39 Successful appellants are not eligible for state benefits as they have not paid National Insurance contributions. They may be homeless, unemployed (often unemployable), with a range of medical and mental health conditions. As with all prisoners, they will have missed significant family occasions and lost personal opportunities. The effects of this on the wrongly convicted are markedly different, however. In Adrian Grounds’ assessment of 18 miscarriages of justice victims, he found psychiatric change unlike that in ordinary long-term ­prisoners. Fourteen showed ‘enduring personality change after catastrophic experience’.40 Twelve had severe post-traumatic stress disorder, similar to that experienced by war veterans.41 Not all successful appellants will have suffered to this extent, of course. They may be factually guilty, or be used to being arrested and in prison. Convictions obtained since PACE are unlikely to involve police brutality. There is also the question of public opinion: if those seen to have had their convictions ‘quashed on a technicality’ then receive compensation, this is unlikely to be popular. In In re McFarland Lord Bingham stated: While the public might approve sympathetic treatment of [a wholly innocent victim of mistake or misidentification], they would be understandably critical if significant sums of public money were paid to [a serious criminal who is very fortunate to have escaped his just deserts].42

This may be exacerbated where compensation to the appellant exceeds that awarded to the victim of the crime by the Criminal Injuries Compensation Authority. In most cases, however, we do not know whether the successful appellant is factually innocent or merely fortunate. It is cases at the extremes that tend to attract public and parliamentary attention and shape both the debate and the outcome for those in the middle. We now turn to consider the rules governing the payment of compensation.

III.  Developments in Compensation Originally there was no statutory provision for compensation for victims of miscarriages of justice. Over the years a practice developed by which, in ­exceptional 38 See Royal Courts of Justice Advice Bureau, available at: www.rcjadvice.org.uk/miscarriagesof-justice. 39 Louise Shorter ‘John Kamara: “What’s helped me has been a stable relationship and the kids”’ The Guardian (31 March 2010). 40 AT Grounds, ‘Understanding the Effects of Wrongful Imprisonment’ (2005) 32 Crime and Justice 1, 22. Of the remaining four people in this study, ‘three had similar personality changes, but they did not cause sufficient impairment to reach the diagnostic threshold. One man had no features of the diagnosis’ (22). 41 ibid 23. 42 In re McFarland [2004] UKHL 17, para 7.

Compensation for Miscarriages of Justice  275 circumstances, the Home Secretary would authorise ex gratia payments from public funds to persons who, having spent time in custody, had received a free pardon, had their conviction quashed on a second appeal following a referral by the Home Secretary, or had their conviction quashed by the Court of Appeal following an ‘out of time’ appeal.43 The scheme was sufficiently flexible to provide compensation to those who fell outwith these parameters but who had spent time in custody following a wrongful conviction or charge, where the Home Secretary was satisfied that this had resulted from serious default by a public authority.44 In 1985, the Home Secretary stated that, in principle, he was prepared to pay compensation in further exceptional circumstances where, for example, facts emerged at trial, or a first appeal, that ‘completely exonerate the accused person’ who had spent time in custody. He made clear, however, that he was not prepared to pay compensation ‘simply because at the trial or an appeal the prosecution was unable to sustain the burden of proof beyond a reasonable doubt in relation to the specific charge that was brought’.45 This approach was adopted and applied by subsequent Home Secretaries,46 until the abolition of the ex gratia scheme (discussed below). Providing compensation for miscarriages of justice is now an obligation under international law. The International Covenant on Civil and Political Rights (ICCPR) 1966 was signed on 16 September 1968 and ratified by the United Kingdom on 20  May  1976. In order to comply with this international obligation, a statutory scheme was established under the Criminal Justice Act 1988 (CJA 1988). Section 133 CJA 1988 provides in almost identical terms to Article 14(6) ICCPR that, when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or, if he is dead, to his personal representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.

The decision as to eligibility is taken by the Justice Secretary. This is an a­ nomalous reservation of powers to a politician as in almost every other sphere of criminal justice decision-making, power has been delegated to demonstrate political ­independence.47 The amount to be awarded is then determined by an Independent Assessor.48 43 Douglas Hurd, Home Secretary, HC Deb 29 November 1985, cols 691–92. 44 ibid. See, eg, Rachel Stevenson, ‘Colin Stagg wins £706,000 payout over Rachel Nickell murder charge’ The Guardian (13 August 2008). 45 Douglas Hurd, Home Secretary, HC Deb 29 November 1985, cols 691–92. 46 See In re McFarland (n 42) para.; R v Secretary of State for the Home Department, ex parte Mullen (n 14) para 29. 47 H Quirk and M Requa, ‘The Supreme Court on Compensation for Miscarriages of Justice: Is It Better That Ten Innocents Are Denied Compensation than One Guilty Person Receives It?’ (2012) 75 Modern Law Review 387, 395. 48 s 133 Criminal Justice Act 1988.

276  Hannah Quirk and Colin King

A.  Judicial Erosion of Entitlement Nicholas Mullen was one of the first to test the statutory scheme. His convictions for terrorism-related offences were quashed on the basis of his illegal rendition into British police custody with the connivance of MI5 and the Zimbabwean authorities.49 Mullen applied for compensation under section 133 of the CJA 1988 but was refused and appealed. The Divisional Court ruled against Mullen, this was overturned by the Court of Appeal, and then restored by the House of Lords. Their Lordships were unanimous on the outcome but differed in their reasoning. Lord Steyn favoured a ‘narrow’ definition of miscarriage of justice for the purposes of the scheme that referred only to the conviction of the factually innocent. In contrast, Lord Bingham adopted a ‘wider’ definition which included cases in which something had gone seriously wrong with the trial process, resulting in an improper conviction.50 Subsequent cases51 avoided addressing the conflict, proceeding on the basis that neither test was satisfied. This proved unsustainable, and in Adams the Supreme Court recognised the need for ‘a fresh look’52 at defining miscarriages of justice for the purposes of compensation. The Court identified four typologies: Category 1: Where the fresh evidence shows clearly that the defendant is innocent of the crime of which he has been convicted. Category 2: Where the fresh evidence is such that, had it been available at the time of the trial, no reasonable jury could properly have convicted the defendant. Category 3: Where the fresh evidence renders the conviction unsafe in that, had it been available at the time of the trial, a reasonable jury might or might not have convicted the defendant. Category 4: Where something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted.53

49 R v Mullen (n 26). 50 R v Secretary of State for the Home Department, ex parte Mullen (n 14) 18. 51 See, eg, R (on the application of Clibery) v Secretary of State for the Home Department [2007] EWHC 1855 (Admin); R (on the application of Siddall) v Secretary of State for Justice [2009] EWHC 482 (Admin); R (Allen, formerly Harris) v Secretary of State for Justice [2008] EWCA Civ 808. 52 Adams (n 22) para 85 (Lord Hope). See also para 177 (Lord Kerr). For further discussion, see C Hoyle, ‘Compensating Injustice: The Perils of the Innocence Discourse’ in J Hunter, P Roberts, S Young and D Dixon (eds), The Integrity of Criminal Process: From Theory to Practice (Oxford, Hart Publishing, 2016). 53 Adams (n 22) para 37 (Lord Phillips) (referring to the decision of Dyson LJ in Queen (Adams) v Secretary of State for Justice [2009] EWCA Civ 1291, para 19).

Compensation for Miscarriages of Justice  277 For a case with the purported aim of clarifying the definition of miscarriage of justice, the decision was disappointing. The consensus was that those who fall within category 1 should receive compensation, while those in category 3 (the vast majority of successful appeals) and category 4 should not. The contentious question of whether those in category 2 should be entitled to compensation was answered in the affirmative, by five votes to four. The majority said that confining compensation only to those who can demonstrate factual innocence would be ‘a heavy price to pay for ensuring that no guilty person is ever the recipient of compensation’.54 As Quirk and Requa state, it was ‘unfortunate that the Court, in such a lengthy judgment, was not bolder and clearer in its examination of the underlying principles of compensation in the context of a system based on the presumption of innocence’.55 The judges made a number of unsupported assumptions about the purpose of the legislation.56 Lord Phillips (then President of the Supreme Court) said that the primary objective of section 133 is to provide for payment of compensation to those convicted and punished for crimes that they did not commit; a subsidiary objective is to not provide compensation to those who have been convicted and punished for a crime that they did commit.57 No authority was given for this rationale, however, and it appears a decision based more on policy considerations than established principles. Shortly after the Supreme Court decision in Adams, the High Court considered a further challenge in Ali.58 In relation to an application for compensation after a person has been acquitted in a retrial (which would almost invariably fall within category 3), the Court stated that save in the most exceptional circumstances, after a retrial at which there was a proper case to go to the jury, a claimant would not be able to establish a valid claim for compensation for miscarriage of justice within category 2. It may occasionally happen that fresh evidence will become available after the second trial which is capable of demonstrating the innocence of a convicted person. But such a development is no basis for finding that a claimant was not properly convicted at the retrial.59

As for applications where compensation might be granted (encompassing categories 1 and 2 above), the High Court refined the test as follows: ‘Has the claimant established, beyond reasonable doubt, that no reasonable jury (or magistrates) properly directed as to the law, could convict on the evidence now to be considered?’60 It might be thought at this point that the matter was settled. The government, however, was unhappy with the outcomes in Adams and Ali (notwithstanding that in Adams only two out of three appellants were deemed to

54 Adams

(n 22) para 50 (Lord Phillips). For a counter view, see para 281 (Lord Brown). and Requa (n 47) 400. 56 ibid 397. 57 Adams (n 22) para 37 (Lord Phillips). 58 R (on the application of Ali) (n 21). 59 ibid para 48. 60 ibid para 41. 55 Quirk

278  Hannah Quirk and Colin King be entitled to ­compensation61 and in Ali, only one of the five applicants succeeded in having the decision to deny compensation overturned and returned for reconsideration by the Justice Secretary)62 and tabled legislation to restrict eligibility further – inserting a new subsection 1ZA into section 133 of the CJA 1988.63

B.  Parliamentary Curtailment The clause first proposed by the government restricted eligibility for compensation to cases in which ‘if and only if the new or newly discovered fact [that had led to the conviction being quashed] shows beyond reasonable doubt that the person was innocent of the offence’.64 The rationale underpinning the new provision was stated by the then Home Secretary to be to clarif[y] the test for determining eligibility for compensation when someone has been the victim of a miscarriage of justice. The absence of a clear statutory definition of what amounts to a miscarriage of justice for these purposes has led to repeated legal challenges and shifting case law. As well as providing greater certainty, the new statutory test will ensure that compensation is paid only to those who are clearly innocent.65

Unsurprisingly there was criticism of the insistence on demonstrating ‘innocence’ to the standard of ‘beyond reasonable doubt’ before a person would be entitled to compensation. Baroness Kennedy of the Shaws spoke against the Bill, arguing that: To ask people to prove their innocence beyond reasonable doubt is an affront to our system of law … It is very difficult for people to prove that they are innocent beyond reasonable doubt: ‘Prove that you didn’t kill your baby’; ‘Prove that you didn’t leave a bomb in the pub’.66

This difficulty is even more pronounced given the passage of time, as most applications for compensation are likely to be made many years after the disputed crime. 61 Adams’ application fell within category 3, so he was not entitled to compensation. In relation to the other appellants, McCartney and Mac Dermott, it was said: ‘The newly discovered facts … so undermine the evidence against them that no conviction could possibly be based upon it. There can be no reasonable doubt of this’. Thus, they were entitled to compensation under CJA 1988, s 133. Adams (n 22) para 65 (Lord Phillips). 62 Ian Lawless had been convicted of murder on the basis of various admissions that he had participated in the killing as a lookout. Most of the evidence of these admissions came from friends or acquaintances, though they also stated that his admissions might not be reliable. At the appeal, following psychological review which concluded that it would be unsafe to rely on these admissions, the Crown did not resist the appeal and the conviction was quashed. Nonetheless, his application for compensation was refused. It was held that ‘The Secretary of State should have concluded that this was a case where he was sure no jury could properly convict’. R (on the application of Ali) (n 21) para 185. 63 s 175(1) Anti-social Behaviour, Crime and Policing Act 2014. 64 Anti-social Behaviour, Crime and Policing Bill (HC Bill 7) s 132(1) (as originally introduced) 9 May 2013. 65 HC Deb 10 June 2013, vol 564, col 75 (Theresa May). 66 House of Lords, Anti-social Behaviour, Crime and Policing Bill, 22 January 2014, col 673. See also JUSTICE (n 17) para 56.

Compensation for Miscarriages of Justice  279 Writing prior to the 2014 changes, Roberts criticised a requirement to establish innocence on the basis that to do so is ‘virtually impossible’ and has the potential to result in arbitrary decisions as to who receives compensation and who does not.67 Indeed, insistence upon proof of ‘innocence’ runs counter to the ‘golden thread’68 that runs through the criminal justice system. If a court has found that the state was not entitled to punish the appellant because it could not establish guilt beyond reasonable doubt, it seems unfair to expect the appellant to demonstrate that innocence – the presumption of which has been restored.69 The Human Rights Select Committee expressed concern as to how the government’s proposal affected the presumption of innocence: The real substance of the concern about the presumption of innocence is that a rejection of an application for compensation for a miscarriage of justice on the ground that the new or newly discovered fact does not establish the person’s clear innocence suggests that the person may still have been guilty of the offence even though that has not been proved beyond reasonable doubt.70

In the face of criticism in the House of Lords during the passage of the Bill, the wording was amended, replacing the requirement of innocence with the condition ‘if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence’.71 Despite efforts by the government to explain this change in wording,72 it remains largely a distinction without a difference.

IV.  Populist Punitivism and Compensation The restrictions governing compensation entitlements are reflective of a wider deterioration of defendants’ rights and curtailments upon the presumption of innocence over the past quarter of a century. The RCCJ Report, established in response to a series of catastrophic failures in the criminal justice system, was widely seen as a disappointment.73 Its terms of reference gave equivalence to ‘securing the conviction of those guilty of criminal offences and the acquittal of those who are innocent, having regard to the efficient use of resources’74 67 S Roberts, ‘“Unsafe” Convictions: Defining and Compensating Miscarriages of Justice’ (2003) 66 Modern Law Review 441, 451. 68 Woolmington v DPP [1935] AC 462. 69 See Adams (n 22) para 116 (Lady Hale). 70 Joint Committee on Human Rights, Legislative Scrutiny: Anti-social Behaviour, Crime and Policing Bill (2013–14, HL 56, HC 713) para 156. 71 Anti-social Behaviour, Crime and Policing Act 2014, s 175(1) inserts a new subsection 1ZA into s 133 of the Criminal Justice Act. 72 See Anti-social Behaviour, Crime and Policing Bill, HC Deb 4 February 2014, vol 575, col 163 et seq (Damian Green, Minister for Policing, Criminal Justice and Victims). 73 M McConville and L Bridges (eds), Criminal Justice in Crisis (Aldershot, Edward Elgar, 1994). 74 RCCJ (n 2) i.

280  Hannah Quirk and Colin King even though this runs contrary to the presumption of innocence. This assumption was not interrogated in the report but influenced its findings. During the course of the RCCJ’s deliberations, the Home Secretaries (Kenneth Baker, Kenneth Clarke and Michael Howard) ‘espoused successively more extreme law and order ­policies’.75 As the Labour Party sought to become electable again, and the Conservative government fought low opinion poll ratings, ‘there was a cross-party search for punitive policies, and particularly punitive rhetoric, that could be used to convince an electorate to cast their vote for those who could be trusted to be toughest on crime’.76 In his speech to the Conservative Party conference following the RCCJ report, Michael Howard gave scant attention to protecting the accused – instead announcing his 27-point ‘crackdown on crime’ in what became known as his ‘prison works’ speech.77 The first piece of legislation to follow this speech, the Criminal Justice and Public Order Act 1994 (CJPOA), signalled ‘the start of the modern law and order arms race’ in England and Wales.78 The Act ‘marked a new departure in the prosecution of crime in England; a declaration that defendants have too many rights and should cede some of them in order to restore equilibrium’.79 This rebalancing narrative reinforced the ‘populist punitiveness’80 of criminal justice policy that subsequently took hold. The punitive trend continued under the Labour government, elected in 1997. Introducing the Justice for All White Paper,81 Tony Blair casually overturned centuries of legal thinking about miscarriages of justice stating that: Some of our reforms will be controversial. Many rules of evidence and other procedures were introduced to prevent miscarriages of justice, and protections for the defendant must remain. But it’s a miscarriage of justice when delays and time-wasting deny victims justice for months on end. It’s a miscarriage of justice when the police see their hard work and bravery thrown away by courts who let a mugger out on bail for the seventh or eighth time to offend again; or when courts don’t have the secure places to put people. And it’s perhaps the biggest miscarriage of justice in today’s system when the guilty walk away unpunished.82

75 S Sharpe, Judicial Discretion and Criminal Investigation (London, Sweet & Maxwell, 1998) 86. 76 T Newburn and T Jones ‘The convergence of US and UK crime control policy: exploring substance and process’ in T Newburn and R Sparks (eds), Criminal Justice and Political Cultures (Cullompton, Willan Publishing, 2004) 188. 77 Alan Travis, ‘Right to silence abolished in crackdown on crime’ The Guardian (7 October 1993). 78 S Chakrabarti, ‘A Thinning Blue Line? Police Independence and the Rule of Law’ (2008) 2 Policing 367, 369. 79 H Quirk, The Rise and Fall of the Right of Silence (Abingdon, Routledge, 2016) 6. 80 A Bottoms, ‘The Philosophy and Politics of Punishment and Sentencing’ in C Clarkson and R Morgan (eds), The Politics of Sentencing Reform (Oxford, Clarendon Press, 1995) 17–49. See also M Tonry, ‘The Costly Consequences of Populist Posturing: ASBOs, Victims, “Rebalancing” and Diminution in Support for Civil Liberties’ (2010) 12 Punishment and Society 387. 81 See Home Office, Justice for All. Cm.5563 (2002). See also J Jackson, ‘Justice for All: Putting Victims at the Heart of Criminal Justice?’ (2003) 30 Journal of Law and Society 309. 82 ‘Full text of Tony Blair’s speech on reforming the criminal justice system’ The Guardian (18 June 2002).

Compensation for Miscarriages of Justice  281 His rhetoric showed no understanding of why these failings are not equivalent to wrongful convictions and this practice continued across public life with the needs of victims of crime often presented as oppositional to the rights of ­defendants.83 Further evidential changes were introduced that were unfavourable to the defence,84 including changes to hearsay, bad character evidence and double jeopardy. The Criminal Procedure Rules 2005, administrative directions for case management,85 effected a ‘sea change’86 in how criminal cases are conducted. There is now a ‘normative expectation’87 that defendants should cooperate fully in the criminal process, and that those who do not have something to hide.88 Thus it can be seen that, since the mid-1990s there have been numerous changes that have undermined the presumption of innocence and the principle that it is for the prosecution to prove its case.89 It is in this context that the erosion of entitlement to compensation for miscarriage of justice should be considered. The first step in this regard came under the Criminal Appeal Act 1995 (ironically the Act that established the Criminal Cases Review Commission), which enabled the independent assessor for compensation to take account of, inter alia, ‘any other convictions of the person and any punishment resulting from them’.90 The rationale for this change is problematic. It has nothing to do with contributory negligence, the mechanism by which civil awards may be reduced for any responsibility that claimants bear for their own loss. Instead the assumption is that those who are not ‘ideal victims’ have either been harmed less (presumably because prison is not a new experience for them), or they are just less deserving of sympathy. Neither position stands up to scrutiny. As the Bridgewater Four could attest, those imprisoned for murdering a child occupy a very different place in the prison social hierarchy than armed robbers. Also, the compensation is for the wrongful deprivation of liberty and censure, not a subjective test of how unpleasant the defendant found the experience. A decade later came an unsuccessful effort by the Labour government to narrow the test applied by the Court of Appeal so that factually guilty suspects would not have their convictions quashed (essentially reinstating the ‘proviso’ test abolished by the Criminal Appeal Act 1995).91 When that proposal was defeated, 83 See, generally, A Owusu-Bempah, Defendant Participation in the Criminal Process (Abingdon, Routledge, 2017). 84 See ibid, 140 et seq, and Quirk, The Rise and Fall of the Right of Silence (n 79) ch 2. 85 Criminal Procedure Rules 2005. See The Law Society, Criminal Procedure Rules: impact on solicitors’ duties to the client (2009). 86 The Queen (on the application of the DPP) v Chorley Justices and Andrew Forrest [2006] EWHC 1795 (Admin) para.24. 87 R Leng, ‘Silence Pre-trial, Reasonable Expectations and the Normative Distortion of Fact Finding’ (2001) 5 International Journal of Evidence & Proof 240, 246. 88 R v Howell [2002] EWCA Crim 1. 89 See, generally, Owusu-Bempah (n 83). 90 Criminal Appeal Act 1995, s 28 inserting a new s 133(4A) into the Criminal Justice Act 1988. 91 Quashing Convictions: Report of a Review by the Home Secretary, Lord Chancellor and Attorney General (Office for Criminal Justice Reform, September 2006). This proposal was met with significant

282  Hannah Quirk and Colin King the then Home Secretary, Charles Clarke, summarily announced the abolition of the ex gratia compensation scheme. He argued that: The existence of the second, discretionary scheme is confusing and anomalous. The scheme predates the introduction of international standards and agreements in this area and addresses cases beyond the UK’s international obligations. The scheme currently costs over £2 million a year to operate but benefits only between five and ten applicants. I do not believe that the discretionary scheme can continue to be justified.92

These claims do not withstand examination. There was no evidence to suggest that the ex gratia scheme was confusing, and international obligations are supposed to be a floor rather than a ceiling. The scheme did not cost £2 million a year to ­operate – large payments had been made but these mostly related to cases of some age, often involving multiple defendants. The language used by Charles Clarke in abolishing the ex gratia scheme adopted the metaphor of rebalancing that had been deployed by successive ministers to restrict the rights of suspects. This ‘defendant-centred subjectivity’93 is dangerous as it is easiest to erode the rights of unpopular groups. In terms that seemed designed to reinforce the idea that recipients were unworthy, Clarke also announced that: ‘The assessor has decided that, with immediate effect, he will take greater account of the criminal convictions of applicants when determining the level of nonpecuniary compensation to be awarded’.94 The assessor had always been able to take a range of factors into account when ­determining c­ ompensation including, most controversially, deductions for ‘board and ­lodgings’.95 (Vincent Hickey of the Bridgewater Four suggested that such deductions ought to take into account the time he spent on prison roofs and on hunger-strike protesting his innocence.)96 Clarke’s ‘rebalancing’ was even more disingenuous as he sought to equate the treatment of those who had been wrongly convicted with victims of crime, ignoring the fact that these people have been acquitted, so are not legally criminals, and are also victims.97 Further change followed in 2008, when limitations were introduced as to how much compensation could be paid to persons so entitled.98 These caps were in line with the maximum amount that can be paid under the Criminal Injuries Compensation Scheme, again reinforcing the equivalence with victims of crime.

criticism. See, eg, J Russell, Liberty’s Response to the Office for Criminal Justice Reform: ‘Quashing Convictions’ (Liberty, 2006); Quirk, ‘Identifying Miscarriages of Justice’ (n 18) 759. 92 HC Deb 19 April 2006, vol 445, col 16WS (Charles Clarke). 93 S Sharpe, ‘Judicial Discretion and Investigative Impropriety’ (1997) 1 International Journal of Evidence & Proof 149, 155. 94 HC Deb, Written Ministerial Statement, 19 April 2006, vol 445, col 16WS (Charles Clarke). 95 See O’Brien v Independent Assessor [2007] UKHL 10. 96 Eric Allison, ‘Ruling appeal over B&B bill’ The Guardian (16 March 2004). 97 HC Deb, Written Ministerial Statement, 19 April 2006, vol 445, col 16WS (Charles Clarke). 98 CJA, 1988, s 133A(5), as inserted by s 61 of the Criminal Justice and Immigration Act 2008.

Compensation for Miscarriages of Justice  283 The emphasis on ‘deserving’ applicants continued under the Conservative– Liberal Democrat Coalition government. In 2014 the then Minister for Policing, Criminal Justice and Victims, Damian Green, stated: We remain strongly committed to ensuring that compensation is paid only to those who genuinely warrant it, however. In our view compensation should be paid only to applicants where it is shown beyond reasonable doubt that they did not commit the offence … We consider that, while the definition of a miscarriage of justice for which we are seeking to legislate is drawn narrowly, it nevertheless provides for a range of circumstances in which compensation should rightly be paid to help people who need to rebuild their lives after suffering great injustices.99

This emphasis on ‘those who genuinely warrant’ compensation puts the focus on the individual rather than the wrong done by the state and effectively leads to a two-tier system of acquittal.100 While the government argued that the restrictions on entitlement to compensation were aimed at saving money, its own figures showed that only two or three applications per year were found to be eligible for compensation.101 As the Human Rights Select Committee pointed out: The Government’s answers to our other questions about this provision indicate that the Government does not expect the new clause to have a significant impact on the number of applicants who prove eligible for compensation, and it is not therefore intended to save significant sums in the amount paid out in compensation. The savings anticipated are in the region of £100,000 per annum in the form of legal costs which the Government says will be saved because of the greater certainty that the new ­definition will bring.102

Thus, the 2014 changes must be considered against the wider context of deteriorating rights of defendants. The domestic courts and European Court of Human Rights have been ­unsympathetic to the argument that restricting compensation in this way is incompatible with Article 6(2) of the European Convention on Human Rights because it violates the presumption of innocence.103 In Nealon104 (the case awaiting judgment from the Supreme Court) the Court of Appeal echoed the language of the government during the passage of the Bill: [S]ection 133 does not require the applicant for compensation to prove his innocence. It is the link between the new fact and the applicant’s innocence of which the Secretary

99 Anti-social Behaviour, Crime and Policing Bill, HC Deb, 4 February 2014, vol 575, col 167 (Damian Green). 100 Hoyle, ‘Compensating Injustice’ (n 52). 101 Anti-social Behaviour, Crime and Policing Bill, Explanatory Notes, para 69. 102 Joint Committee on Human Rights, Legislative Scrutiny: Anti-social Behaviour, Crime and Policing Bill (n 70) para 158. 103 Allen v United Kingdom App no 25424/09 (ECHR, 12 July 2013) (GC). 104 R (Nealon); R (Hallam) v Secretary of State for Justice [2015] EWHC 1565 (Admin). An appeal was rejected in The Queen (on the application of 1. Hallam and 2. Nealon) v Secretary of State for Justice [2016] EWCA Civ 355.

284  Hannah Quirk and Colin King of State must be satisfied before he is required to pay compensation under the 1988 Act, not his innocence in a wider or general sense … The statutory scheme maintains the presumption of innocence, which is not impugned, but provides compensation if the Secretary of State is satisfied that the new fact conclusively proves innocence.105

The new compensation rules, however, reflect a significant departure from ­Blackstone’s ratio – that it is better that 10 guilty men go free than for one innocent person to be wrongly convicted. The reality that a person must essentially establish factual innocence in order to receive compensation suggests a change to ‘whether it is better that ten innocent people are denied compensation to ensure that one guilty person does not receive it’.106 Despite protestations to the contrary,107 the effect of subsection 1ZA is de facto to undermine the presumption of innocence and to create a two-tier system of acquittals108 – those deserving and those undeserving of compensation. Kent Roach contends that a ‘factual innocence model’ presents a threat to due process commitments.109 He suggests that its growing strength ‘is related to the rise of a punitive and populist form of victims’ rights, which seems only prepared to recognize the rights and the humanity of the clearly innocent’.110 In England and Wales the emphasis is now firmly on establishing factual innocence before compensation is awarded, which is reflective of increasingly punitive and populist attitudes in the criminal justice system, more generally.

Conclusion Justice in Error was published at a time when the criminal justice system was in crisis.111 The miscarriages of justice belatedly, and for the most part reluctantly, acknowledged by the Court of Appeal exposed egregious misconduct by the police, forensic scientists and judges, as well as failings in legal representation. Some reforms have taken place (discussed by Walker, and elsewhere in this volume), and it is important not to diminish their importance. England and Wales has, in many ways, led the world in reforms in protections for suspects and defendants such as 105 R (Nealon); R (Hallam) v Secretary of State for Justice, ibid, paras 49–50 (Burnett LJ). 106 Quirk and Requa (n 47). 107 eg, the letter rejecting Sam Hallam’s application under s 133, CJA 1988 stated: ‘It is important to emphasise that nothing in this letter is intended to undermine, qualify or cast doubt on the decision of the CA to quash your client’s convictions. Mr Hallam is presumed to be and remains innocent of the charges. His application has been rejected as it does not meet the statutory test for compensation under section 133 of the 1988 Act’. R (Nealon); R (Hallam) v Secretary of State for Justice (n 104) para.7. 108 See Hoyle, ‘Compensating Injustice’ (n 52). 109 See ch 12 (Roach) in this collection. 110 ibid. Hoyle contrasts the focus on victims of crime in the UK with the (current) lack of focus on victims of miscarriages of justice. She questions whether the latter are now regarded as ‘yesterday’s problem’. C Hoyle, ‘Victims of the State: Recognizing the Harms Caused by Wrongful Convictions’ in M Bosworth, C Hoyle and L Zedner (eds), Changing Contours of Criminal Justice (Oxford, Oxford University Press, 2016). 111 McConville and Bridges (n 73).

Compensation for Miscarriages of Justice  285 recording police interviews, providing legal advice and in establishing the CCRC. The due process protections introduced by PACE faced sustained opposition from the police, however, and they have been eroded by measures such as curtailing the right of silence and restrictions on legal aid. The notion that England and Wales had gone too far in protecting suspects’ rights and that the system needed rebalancing did not reflect research findings but was an enduring political motif. Miscarriages of justice are a powerful agent of change – most of the significant criminal justice reforms emerged following high-profile cases. Refusing compensation to most of those who have their convictions quashed creates an impression that the state is not liable for these errors, that the individual is unworthy of sympathy, and perhaps should be considered fortunate to have escaped ­conviction. From being leading figures in due process reforms, when it comes to payment of compensation to victims of miscarriages of justice, England and Wales now lags behind. There has been a drive for compensation schemes across most States in the USA,112 large payments have been made in New Zealand113 and Australia,114 and Vietnam recently proposed to make police and prosecutors pay the compensation if it was their fault.115 The occasional wrongful conviction catches public attention116 but there has been nothing to match the focus of the early 1990s. The subsequent absence of ­high-profile miscarriages of justice, involving the demonstrably innocent, has helped those advocating crime control measures as it became easier to depict the accused as unworthy of protection and of compensation even when they had their convictions quashed. The issue is having a brief moment in the spotlight – the American documentaries ‘Serial’ and ‘Making a Murderer’ have garnered huge audiences and critical acclaim. A few English programmes117 have attempted to 112 See, eg, RJ Norris, Assessing Compensation Statutes for the Wrongly Convicted‘ (2012) 23 Criminal Justice Policy Review 352; J Costa, ‘Alone in the World: The United States’ Failure to Observe the International Human Right to Compensation for Wrongful Conviction’ (2005) 19 Emory International Law Review 1615; ML Owens and E Griffiths, ‘Uneven Reparations for Wrongful Convictions: Examining the State Politics of Statutory Compensation Legislation’ (2011) 75 Albany Law Review 1283. 113 eg, the case of Teina Pora: see ‘Andrew Little confirms Teina Pora compensation to be increased’ New Zealand Herald (8 November 2017). See also Ministry of Justice, ‘Individual Compensation Claims’ available at: www.justice.govt.nz/justice-sector-policy/constitutional-issues-and-humanrights/miscarriages-of-justice/individual-compensation-claims. 114 eg, the case of Farah Jama: Reid Sexton, ‘Man paid $525,000 for wrong conviction’ The Age (30 June 2010). For consideration of the Australian context, see A Hoel, Compensation for Wrongful Conviction. Trends and Issues in Crime and Criminal Justice No 356 (Australian Institute of Criminology, 2008). 115 See C McCartney, ‘Getting guilty police/ prosecutors to pay compensation to victims of wrongful conviction?’ (The Wrongful Convictions Blog, 5 May 2017), available at: wrongfulconvictionsblog.org/ 2017/05/05/getting-guilty-police-prosecutors-to-pay-compensation-to-victims-of-wrongful-conviction). 116 Early Day Motion 535, 18 January 2005: ‘That this House notes with concern the decision made by the Home Secretary not to pay compensation to Mrs Angela Cannings in respect of her wrongful conviction and imprisonment’. Angela Cannings was ultimately awarded compensation: see ‘“Six figure” sum for mother wrongly jailed over cot deaths’ Evening Standard (21 June 2008). 117 BBC2: ‘Conviction: Murder at the Station’, available at: www.bbc.co.uk/programmes/b07wzjmf); BBC Radio 5 Live, Beyond Reasonable Doubt podcast, available at: www.bbc.co.uk/programmes/ p054dybk.

286  Hannah Quirk and Colin King follow the trend. Stories of the Law and How It’s Broken has been a bestseller.118 The film ‘Say I’m Innocent’ is part of a campaign led by Paddy Hill, among others, to provide greater support for individuals post-release.119 A succession of trials collapsing due to non-disclosure of evidence is generating concern120 and an All-Party Parliamentary Group on Miscarriages of Justice has been established.121 Compensation can never adequately make up for what victims of wrongful convictions have lost but the state has a responsibility to those it wrongly convicts. The effects on the individual of wrongful conviction are significant but harm is also caused to the system. The relentless drive to reduce eligibility for compensation suggests a lack of institutional humility and a diminution in the importance of the presumption of innocence that does not augur well for those of us who follow Walker’s work in this area.

118 The Secret Barrister, Stories of the Law and How It’s Broken (Macmillan, 2018). 119 See: sayiminnocent.com. 120 See Owen Boycott, ‘London rape trial collapses after phone images undermine case’ The Guardian (15 January 2018); BBC News, ‘All current rape cases to be “urgently” reviewed over disclosure fears’ (27 January 2018). 121 See Jon Robins, ‘A new parliamentary group promises to “revive the tradition” of MPs campaigning to highlight miscarriages of justice’, available at: www.thejusticegap.com/2017/12/15663.

17 Revisiting Miscarriages of Justice: Innocence Projects, Review Commissions and Expert Evidence kathryn m campbell Introduction The study of miscarriages of justice, emerging over the previous 30 years,1 reflects an assemblage of research from, inter alia, law, criminology, criminal justice, sociology and psychology. There is no clear path to trace its development and maturation, leaving the study of miscarriages of justice without a body that reflects the ‘collected wisdom’ of scholars, but rather a collection of case studies and commentaries arising from a number of different positions regarding not only how and why miscarriages of justice occur, but also how they may be prevented and rectified. During the same period, this research has been accompanied, and often complemented, by the burgeoning of innocence projects, all more or less mandated to do the same thing: help the wrongly convicted in prison in their quest for exoneration. These two areas of influence in the field of miscarriages of justice (ie, research and practice) overlap at times, but are also at times diametrically in opposition. There is little doubt that the arrival of DNA forensic technology in the 1990s greatly affected perceptions of miscarriages of justice, especially in regard to their frequency and the fallibility of the criminal justice system. In the United Kingdom, this recognition occurred somewhat earlier and was not in fact linked to DNA.2 The ‘Confait Affair’ of the 1970s, concerning three young boys wrongly convicted of the murder of Maxwell Confait due in part to serious police malpractice, brought 1 Technically, Edwin Borchard’s, Convicting the Innocent: Sixty-five Actual Errors of Criminal Justice (New Haven, CT, Yale University Press, 1932) was first published in 1932 and could be described as the first real treatise on miscarriages of justice. But, for a number of reasons, attention to this problem only gained groundswell support following the introduction of DNA forensic evidence in the latter 1980s. 2 See C Walker, ‘Miscarriages of Justice in Principle and Practice’ in C Walker and K Starmer (eds), Miscarriages of Justice: A Review of Justice in Error (London, Blackstone Press, 1999).

288  Kathryn M Campbell sustained attention to the fact that innocent people could be convicted for crimes they did not commit.3 The subsequent Royal Commission on Criminal Procedure in 1981 resulted in the codification of police powers through the Police and Criminal Evidence Act of 1984.4 A number of high-profile wrongful convictions including terrorist and other cases proved to be further catalysts for change.5 Not only did the widely publicised exposure of these cases generate interest amongst the public and cause many to question the criminal justice system, it fostered a growing awareness from legal commentators that the system in place to address this problem was woefully inadequate, resulting in many attempts and many years to correct these miscarriages of justice.6 Just as enquiry and legislative change quickly followed the Confait affair, a similar response occurred following the Irish terrorist cases of the 1970s to 1980s. On the very same day the convictions of the Birmingham Six were quashed in 1991 the British government established a Royal Commission on Criminal Justice (Runciman Commission) to examine the workings of the criminal justice system.7 A significant recommendation emerging from the Commission was the development of a new independent body, with wide powers of investigation and review, to replace the Home Secretary in referring cases of alleged miscarriages of justice to the Court of Appeal. Thus, via the enactment of the Criminal Appeal Act 1995, the Criminal Cases Review Commission (CCRC) was established,8 albeit at a time when there was clear dissatisfaction with the criminal justice system’s ability to convict guilty persons, particularly in terrorism cases. Despite the fact that the CCRC has served a significant function in helping overturn a number of unsafe convictions since its inception in 1997, there is considerable dissatisfaction with its mandate, which has also indirectly influenced the development of innocence projects in the UK.9 In this context, this chapter will examine Clive Walker’s pivotal influence on the scholarly study of miscarriages of justice, first looking at how his rightsbased definition of miscarriages of justice underscored the many ways in which 3 See H Fisher, Report of an Inquiry by the Honourable Sir Henry Fisher into the Circumstances Leading to the Trial of Three Persons on Charges Arising out of the Death of Maxwell Confait and the Fire at 27 Doggett Road, London SE6 (London, The Stationery Office, 1977). 4 The Royal Commission on Criminal Procedure, Report (London, HMSO, 1981). See also R Munday, ‘The Royal Commission on Criminal Procedure’ (1981) 40 Cambridge Law Journal 193; and C McCartney and S Roberts, ‘Building Institutions to Address Miscarriages of Justice in England and Wales: “Mission Accomplished?”’ (2012) 80 University of Cincinnati Law Review 1333, 1343. 5 These cases provided the impetus for much subsequent academic work on miscarriages of justice, including C Walker and K Starmer (eds), Justice in Error (London, Blackstone Press, 1993). 6 Early government reaction included the Home Affairs Committee, Sixth Report, Miscarriages of Justice (HC 1981–82, 421), and Sir John May, Inquiry into the Circumstances Surrounding the Convictions arising out of the Bomb Attacks in Guildford and Woolwich in 1974: Interim Report (1989–90, HC 556). 7 The Royal Commission on Criminal Justice, Report (Cm 2263, 1993). 8 See ch 15 (Roberts) in this collection. 9 M Naughton, ‘The Importance of Innocence for the Criminal Justice System’ in M Naughton (ed), The Criminal Cases Review Commission: Hope for the Innocent? (Basingstoke, Palgrave MacMillan, 2009) 30.

Revisiting Miscarriages of Justice  289 miscarriages may occur. The chapter investigates how Walker’s early work set the context for further study and investigation of miscarriages of justice in the UK and elsewhere, and yet, the research focus may have now narrowed. The chapter then engages with three further aspects of Walker’s influence – namely innocence projects, review commissions (such as the CCRC) and problematic expert testimony. These topics are deliberately chosen: innocence projects are significant as they demonstrate increased attention to, and responses to, miscarriages of justice, while both review commissions and expert testimony are topics that directly relate to Canada (on which I have previously collaborated with Clive Walker). The discussion here outlines the development and expansion of innocence projects in the US and the UK and situates them within the context of dissatisfaction with the court system and recurring cases of wrongful conviction, as well as discontent with the CCRC in the UK. The chapter ends with an exploration of Walker’s later international comparative research. Through this analysis, Walker’s contribution to the study of miscarriages of justice will be examined, at the same time detailing how his initial focus on injustice has not been sustained by subsequent scholarship, where the greater focus is now on quantifying wrongful convictions and identifying their causes.10

I.  Defining Miscarriages of Justice Despite many decades of research examining miscarriages of justice, there is still very little consensus in the literature as to what the term constitutes precisely.11 The terms ‘miscarriages of justice’; ‘wrongful convictions’; ‘justice in error’; and ‘factual innocence’ are often used interchangeably when they, in fact, have differing meanings. Innocence projects mostly reject use of the term ‘miscarriage of justice’ with its broad remit, instead focusing upon wrongful convictions, taken to be cases when an individual is in fact innocent of the crime accused, convicted and/or imprisoned for, or where no crime has been committed at all. Yet, the concept of the ‘factually innocent’, so embraced by the innocence movement12 is clearly insufficient to cover all the possible miscarriages of justice that can occur.13 10 See, eg, S Westervelt and J Humphrey (eds), Perspectives on Failed Justice (New Brunswick, NJ, Rutgers University Press, 2001); M Zalman and J Carrano (eds), Wrongful Conviction and Criminal Justice Reform: Making Justice (New York, Routledge, 2014). 11 See, eg, different uses or interpretations in C Burnett, ‘Constructing Innocence’ (2002) 70 University of Missouri at Kansas City Law Review 971, D Medwed, ‘Innocentrism’ (2008) 5 University of Illinois Law Review 1549; A Siegel, ‘Moving Down the Wedge of Injustice’ (2005) 42 American Criminal Law Review 1219. 12 But see H Quirk, ‘Identifying Miscarriages of Justice: Why Innocence in the UK is Not the Answer’ (2007) 70 Modern Law Review 759. 13 This singular focus on innocence by these projects is most likely due in part to the fact that it simplifies their work, and working to free the factually innocent can be considered as a noble cause. The fact that the success rates of such projects are quite low is another matter entirely: see F Leverick, K Campbell and I Callander, ‘Post-Conviction Review: Questions of Innocence, Independence and

290  Kathryn M Campbell Clive Walker’s rights-based definition adopts an individualistic approach to defining ‘direct’ miscarriages of justice. While first articulated in 1993, and expanded upon in 1999, this nuanced definition covers miscarriages of justice that can occur whenever suspects or defendants or convicts are treated by the State in breach of their rights, whether because of, first, deficient processes or, second, the laws which are applied to them or, third, because there is no factual justification for the applied treatment or punishment; fourth whenever suspects or defendants or convicts are treated adversely by the State to a disproportionate extent in comparison with the need to protect the rights of others; fifth, whenever the rights of others are not effectively or proportionately protected or vindicated by State action against wrongdoers or, sixth, by State law itself.14

Latterly, Walker added a seventh categorisation, to include an indirect miscarriage that affects the community as a whole.15 While Walker’s definition has been discussed at length in other chapters in this volume,16 it bears repeating that its breadth provides for the inclusion of different types of state action that result in rights violations. A conviction arising from deceit or illegalities is corrosive of the state’s claims to legitimacy on the basis of its criminal justice system’s values such as respect for individual rights. In this way, the ‘moral integrity of the criminal process’ suffers harm.17 The narrower ‘wrongful conviction’, embraced by the innocence movement, would fall under the third category ‘where there is no factual justification for the treatment or punishment’, which Walker has defined as a ‘core case’, reflecting a breach of the rights of humanity and liberty. What Walker’s definition does is bring the notion of miscarriages of justice out of the courtroom or penal system and situate it squarely within criminal justice practice, per se. By doing so, this reveals how these problems arise, positioning them within laws and failures in legal application, as well as pointing directly to state responsibility.18 Thus, while Walker’s seminal definition of miscarriages of justice from the early 1990s may have provided the original parameters for understanding the many ways that various rights violations could constitute a miscarriage of justice, the innocence movement of the late 1990s in the US and the

Necessity’ (2017) 47 Stetson Law Review, 46. In addition, such innocence work has become a cause de jour to the degree that the original innocence project in New York City now has an annual budget of $23.5 million and is committed to reform of the criminal justice system. However, most existing projects in law schools and faculties function on very little funding, with the majority of work being done pro bono. 14 Walker, ‘Miscarriages of Justice in Principle and Practice’ (n 2) 33. 15 ibid 37. 16 See ch 12 (Roach) in this collection. 17 C Walker, ‘Miscarriages of Justice: An Inside Job’ Criminal Justice Review 1999–2000 (Centre for Criminal Justice Studies, University of Leeds, 2002), available at: www.leeds.ac.uk/law/ccjs/an_ reps/13rep07f.doc. 18 C Walker, ‘Introduction’ in C Walker and K Starmer (eds), Justice in Error (London, Blackstone Press, 1993) 6.

Revisiting Miscarriages of Justice  291 early 2000s in the UK has distanced itself from this interpretation. While working from a somewhat broader perspective, the CCRC itself does not focus on innocence per se; it was originally set up ‘to take a fresh, independent look at suspected miscarriages of justice in England, Wales and Northern Ireland’.19 However, it then explains that its ‘principal role is to investigate cases where people believe they have been wrongly convicted of a criminal offence or wrongly sentenced’,20 and in practice the CCRC fails to address broader ‘miscarriages of justice’, simply assessing the ‘safety’ of a conviction and only referring to the Court of Appeal those cases that it finds ‘unsafe’.21 The lack of fit between how innocence projects, the CCRC and Walker define the problem reflects a fundamental disconnection, perhaps due in part to the limitations inherent in doing casework. Similarly, the bulk of research that has emerged, mainly from the United States,22 examining this issue has tended to focus on wrongful convictions and their causes, and which in turn narrows the research framework to that of questions of innocence. While Walker’s definition has proved to be the most expansive and broadens how the problem is understood, the recent narrowing of the focus to questions of innocence has had a limiting effect.

II.  The ‘Innocence Movement’ The ‘innocence movement’ has been described by Godsey (and others) as including efforts to not only rectify wrongful convictions, but also to reform the criminal justice system to improve accuracy; from this perspective it would include the work of both miscarriages of justice scholars and innocence projects.23 This term

19 CCRC, ‘About Us’, available at: ccrc.gov.uk/about-us. 20 ibid. 21 In this sense, Roberts and Weathered point out that the CCRC is concerned with procedure and functions as a continuation of the criminal appellate process and ‘is a party to the legal thinking and the constraints that typically exist in our criminal justice system’. S Roberts and L Weathered, ‘Assisting the Factually Innocent: The Contradictions and Compatibility of Innocence Projects and the Criminal Cases Review Commission’ (2009) 29 Oxford Journal of Legal Studies 1, 16. 22 There is evidence that some American scholars are expanding the reach of definitions of innocence to now include considerations of exonerations, per se. Moving beyond the ‘wrong-person’ story, exonerations are thought to include cases of individuals against whom charges have been dismissed, those acquitted at trial and those whose conviction was later erased (but not due to factual innocence) and this has been heralded as the ‘emerging intellectual foundation of the Innocence Movement’. R Leo, ‘Has the Innocence Movement Become an Exoneration Movement? The Risks and Rewards of Redefining Innocence’ in D Medwed (ed), Wrongful Convictions and DNA Revolution: Twenty-Five Years of Freeing the Innocent (Cambridge, Cambridge University Press, 2017) 66. See also, K Findley, ‘Defining Innocence’ (2010–11) 74 Alabama Law Review 1207. 23 See, eg, M Zalman, ‘Wrongful Convictions and the Innocence Movement’ (2017) 33 Journal of Contemporary Criminal Justice 4; R Norris, Exonerated: A History of the Innocence Movement (New  York, New York University Press, 2017); M Godsey, ‘The Global Innocence Movement’ in D Medwed (ed), Wrongful Convictions and DNA Revolution: Twenty-Five Years of Freeing the Innocent (Cambridge, Cambridge University Press, 2017).

292  Kathryn M Campbell was first used in the 1990s when DNA technology emerged in the United Sates as a means of scientifically establishing factual innocence with an accuracy that had never been seen before.24 However, the work of Walker and others in the UK in the early 1990s was surely a precursor to the innocence movement. And while they may not have been recognised as such at the time, Walker’s Justice in Error (1993) and Review of Justice in Error (1999), both co-edited with Keir Starmer, were the first books of their kind, laying the groundwork for future study of miscarriages of justice and ultimately influencing the development of the innocence movement. With these two collections, Walker and Starmer stimulated academic consideration of a problem that had previously received scant attention. By compiling chapters from both academics and practitioners, as well as those campaigning on behalf of victims of a miscarriage of justice, Justice in Error made a valuable contribution to information on how errors and misconduct could occur. Given that this collection was written in the ‘shadow’ of the Royal Commission on Criminal Justice, it was able to capture the fundamental issues surrounding miscarriages of justice and contribute to the ongoing debate regarding causes and solutions. A few years later, in the second collection Walker acknowledged that the playing field had changed in response to the Runciman Commission report, with the introduction of new legislation, policy and practice. The aim of this collection was to hold the then sitting Labour government accountable in terms of addressing miscarriages of justice through further reform, while recognising the limitations of reform in changing practices. The breadth of these two collections reflected Walker’s expansive definition of miscarriages of justice. Essentially, they demonstrate that the scope of miscarriages of justice is far broader than the wrongful conviction of the innocent. For example, Walker and Starmer include a chapter on the principle of public interest immunity (PII) and the resultant lack of disclosure that can occur with PII clearly representing a significant breach of rights, especially in terrorism cases, even if no ‘innocent’ person is wrongly convicted.25 Furthermore, these collections require scholars to look beyond the ‘causes’ of miscarriages of justice and focus on matters such as what occurs to victims regarding compensation, how journalistic accounts of particular crimes may have an impact on the outcomes of trials, and also how other jurisdictions respond to miscarriages of justice. Walker’s work is unique in this regard due to its critical commentary, its challenge to traditional understandings about criminal justice processes, and its examination of how societal power and institutions create the climate where miscarriages of justice may occur. His focus upon rights and their violations through myriad ways, distinguishes his contribution to the study of miscarriages of justice



24 Godsey 25 See

(n 23). ch 13 (McKay) in this collection.

Revisiting Miscarriages of Justice  293 from other perspectives. As Simon notes, a great deal of research in the area of miscarriages of justice has been on documenting the frequency of wrongful convictions and classifying and analyzing the practices which produce it … in the UK, a stronger critical criminology tradition has also produced a discussion of the structures of power and inequality that cause justice processes to fail’.26

Furthermore, this perspective places a greater emphasis on policy solutions and legislative or political change. Undoubtedly, Walker’s early work laid the groundwork for later developments regarding the study of miscarriages of justice and how to address them.

A.  Innocence Projects Prior to the development of innocence projects in their current form, innocencetype work was occurring in both the UK and the US. Since its inception in 1957 the UK voluntary organisation JUSTICE, supported alleged victims of miscarriages of  justice and assisted them in making applications to the C3 division of the Home Office to have their convictions revisited. JUSTICE was instrumental in helping a number of individuals in having their convictions overturned, but ceased to assist alleged innocent victims of wrongful conviction following the establishment of the CCRC in 1997.27 Another early organisation concerned directly with innocence work is the Miscarriages of Justice Organisation (MOJO), which operates out of Glasgow, and describes itself as a ‘unique human rights organisation dedicated to assisting innocent people who are in prison, and following their release’.28 Paddy Joe Hill, one of the six men wrongly convicted of the 1975 Birmingham pub bombing, founded MOJO in 2001. A similar organisation, Centurion Ministries, has been operating in the United States since 1980. Run by James McCloskey, in Princeton, New Jersey it helps the wrongly convicted seeking exoneration and in reintegrating back into society.29 The first innocence project was established by Barry Scheck and Peter Neufeld in 1992 at the Benjamin N Cardozo Law School at Yeshiva University in New York

26 J Simon, ‘Foreword’ in M Naughton, Rethinking Miscarriages of Justice: Beyond the Tip of the Iceberg (Basingstoke, Palgrave MacMillan, 2012). 27 They facilitated exonerations in the following cases: Michael and Patrick McDonagh, Paul and Wayne Darvell, John McGranaghan, Jackie Fletcher, Andrew Evans and Ashley King. Naughton argues that the cessation of their work in the area of wrongful convictions at that point was due to an erroneous belief that through the establishment of the CCRC it had finally achieved the criminal justice reform it had long campaigned for; he further argues that the CCRC does not resolve the problem of conviction of the innocent given its subordination to the ‘real possibility’ test criteria of the appeals courts (Naughton (n 9) 30). 28 MOJO, ‘Our Story’, available at: www.miscarriagesofjustice.org/#about. 29 Centurion, ‘Have you ever been accused of something you did not do?’, available at: centurion.org.

294  Kathryn M Campbell City. It began as a law clinic for students to take on cases where there was DNA evidence that could help in exonerating the wrongly convicted; it has now become an independent non-profit organisation affiliated with Cardozo.30 It is responsible for over 350 exonerations to date; part of its success is due to its limiting criteria – namely that it only takes on cases where there is the potential for DNA evidence. Confirming or eliminating subjects is then a relatively straightforward procedure, once the legal hurdles to access the forensic materials are met. Over a 25-year period dozens of other projects have developed in 35 states, Washington DC and Puerto Rico, many attached to law faculties31 where students get academic credit for clinical work on cases of alleged wrongful convictions. Further, an international network of innocence projects across the world – The Innocence Network32 – has developed. Representatives of the network meet annually and have formed an innocence policy group that makes recommendations to prevent future wrongful convictions through reform. The first innocence project in the UK was at Bristol University Law School in 2005. Following this, a number of other projects developed and subsequently, Dr Michael Naughton (Bristol) and Dr Carole McCartney (Leeds) began the Innocence Network UK (INUK), as a coordinating organisation for over 20  ­innocence projects.33 In the past decade, INUK was involved in setting up 36 innocence projects in the UK, 35 at universities and one in a law firm; in addition two independent projects were set up at the University of Leeds34 and the University of Westminster.35 INUK was thus meant to deal with cases of potential ‘factual innocence’, as opposed to convictions that may merely be unsafe on technical grounds due to legal or procedural errors, which is the purview of the CCRC.36 INUK served as a clearing-house for its affiliated projects by providing a standard set of protocols which universities were meant to work towards in their casework, 30 See generally B Scheck, P Neufeld and J Dwyer, Actual Innocence: Five Days to Execution and other Dispatches from the Wrongly Convicted (New York, New American Library, 2001). 31 There are also projects in the United States affiliated with journalism departments of universities. See, eg, Northwestern University’s Medill Justice Project (medilljusticeproject.org) and others loosely based within independent law firms and legal clinics. 32 The Innocence Network, ‘About the Innocence Network’, available at: innocencenetwork.org/ about. 33 C McCartney and M Naughton, ‘Innocence Projects in the UK: The Story so Far’ (2006) 40 The Law Teacher 74. 34 Clive Walker was instrumental in facilitating the development of the Leeds Innocence Project in terms of securing funding and support. 35 H Greenwood, ‘The UK Innocence Movement: Past, Present and Future?’ in L Luparia (ed), Understanding Wrongful Conviction: The Protection of the Innocence across Europe and America (Milan, Wolters Kluwer, 2015). 36 ibid, 166. The CCRC may only refer cases to the Court of Appeal where they think there is a ‘real possibility’ that the conviction would be found to be unsafe arising from an argument or evidence that was not raised during the trial or at appeal, or from ‘exceptional circumstances’ (Criminal Appeal Act  1995 s 13 (UK)). The CCRC has been criticised for being hamstrung by the ‘real possibility’ test, limited in the cases it can refer back and for being overly deferential to the Court of Appeal, as well as presenting substantial delays for applicants in part due to being overly cautious in its approach as a result of internal decision making protocols, delays and low referral

Revisiting Miscarriages of Justice  295 sifting through prisoners seeking assistance and assigning cases to particular projects. In addition, INUK provided contact and support information through student training for member projects, as well as holding conferences; it was meant to provide a single contact point for prisoners and prevent d ­ uplication.37 To date, however, only three cases referred by UK innocence projects to the CCRC have been successful in being heard by the Court of Appeal. Of these, only one conviction38 was overturned – that of Dwaine George in 2014, following work done by the Cardiff Innocence Project.39 Of the approximately 25 cases referred to the CCRC by UK university innocence projects, more than half have come from Cardiff – though this is not surprising given that Cardiff is the only university innocence project with a full-time caseworker.40 INUK folded in 2015, in part due to funding constraints, management difficulties and a lack of eligible cases.41 Michael Naughton accused universities of ‘jumping on the bandwagon, using projects as a “recruiting tool” to attract students to their courses and paying lip service to its main mission of overturning convictions’.42 At the time of its demise, a number of projects had already left INUK due to what has been described as a ‘lack of democratic accountability … and infighting’.43 Aside from the closure of INUK, there have been other difficulties occurring with innocence projects in the UK,44 related to the role of the Court of Appeal and post-conviction disclosure limitations.45 At the same time, some of the few existing projects are now exploring the possibility of future

rates (cf C McCartney and C Walker, ‘Criminal Justice and Miscarriages of Justice in England and Wales’ in CR Huff and M Killias (eds), Wrongful Conviction: International Perspectives on Miscarriages of Justice (Philadelphia, PA, Temple University Press, 2008) 197–200. 37 Greenwood (n 35) 167. 38 The Bristol University Innocence Project referred two other cases to the CCRC, but those convictions were upheld by the Court of Appeal. 39 Alexandra Topping, ‘Murder conviction overturned thanks to Cardiff law students’ The Guardian (9 December 2014). George’s case had originally been considered by the CCRC, and rejected, in 2007. It was revised three years later following an application by the Cardiff Innocence Project. His case was referred back to the Court of Appeal in 2013, and his conviction was quashed in 2014. 40 Jon Robins, ‘University innocence projects: Where are they now?’ The Guardian (27 April 2016). 41 Greenwood (n 35) 68. 42 Robins (n 40). 43 ibid. 44 eg, existing projects outside INUK could no longer qualify as members of the international innocence network given that they must have staff members working 20 hours per week on the project to be eligible. Consequently, many have had to change their names to avoid trademark implications. Greenwood (n 35) 175. 45 The recent case of Nunn v Chief Constable of Suffolk Constabulary [2014] UKSC 37 addressed the issue of post-conviction disclosure, the Court clarifying that a duty of post-conviction disclosure exists in circumstances wider than the High Court had previously held. The Court found this duty to arise in two ways: first, where material comes to light that casts doubt upon the safety of the conviction, unless there is good reason not to disclose; and secondly, if there exists a real prospect that further enquiry will reveal something that may affect the safety of the conviction (para 41). For further discussion of this case, see C McCartney and N Speechley, ‘The Supreme Court, Post-Conviction Disclosure, and “Fishing Expeditions”: R (Nunn) v Chief Constable of Suffolk Constabulary & Anor [2014] UKSC 37’ (2015) 19 International Journal of Evidence and Proof 120.

296  Kathryn M Campbell collaboration with the Centre for Criminal Appeals,46 the Prisoners’ Advice Service and other groups. At present, there are not many ‘innocence projects’ left in the UK by name,47 although some universities are continuing innocence or similar work under another guise.

B.  Innocence Projects and the CCRC: Incompatible or Complementary? At first glance, it seems contradictory to have innocence projects in a jurisdiction with a Criminal Cases Review Commission (CCRC) that works independently of government and is geared towards addressing miscarriages of justice. A  closer look reveals that in fact, the CCRC and innocence projects are not duplicative, both having different objectives. The CCRC does not concern itself with innocence, as stated earlier and functions to review miscarriages of justice in a strictly legal sense, operating entirely within the confines of the criminal appeals process when determining whether convictions are ‘safe’.48 In terms of the cases that it will refer to the Court of Appeal, the CCRC has a number of self-imposed ­limitations.49 These limitations place rather strict controls on the kinds of cases that the CCRC will examine, which appears to represent a retreat from its original objectives and purpose. When it was first established, there were high hopes that the CCRC would not only overturn wrongful convictions, but also play a role in identifying and addressing faultlines in the criminal justice system that cause wrongful convictions to occur in the first instance. While this hope was not initially realised, recent reviews of the CCRC indicate a move in this direction. From 2014 to 2015, the House of Commons Justice Committee undertook a review of the CCRC in order to address, inter alia, some of the concerns that critics have frequently raised, in particular its deference to the Court of Appeal in referring to it only cases that meet the ‘real possibility’ test.50 The Committee found that, despite its 70 per cent success rate51 ‘there is room for the CCRC to be less

46 The Centre for Criminal Appeals (CCA) is a non-profit organisation run by legal practitioners that work on cases of innocence, the unfair treatment of women by the criminal justice system and advocates for open justice (www.criminalappeals.org.uk). 47 Greenwood (n 35) 190. 48 Naughton (n 9) 3. 49 It will not refer cases where the convictions may have been based on purely circumstantial evidence, it will not seek to undermine jury verdicts per se (echoing the deference to juries that Courts of Appeal have shown in the past), it does not regard its referrals as ‘first appeals’ thus it excludes potential lines of enquiry if they related to evidence already rejected by the appeal courts and it must then seek fresh evidence, which is a rather high evidentiary burden. Naughton (n 9) 32–34. 50 Justice Committee, Criminal Cases Review Commission, Twelfth Report of Session 2014–2015 (HC 2014–15, HC 850), available at: publications.parliament.uk/pa/cm201415/cmselect/cmjust/ 850/850.pdf. 51 ibid. Of the cases it refers to the Court of Appeal 70% are successful; however, of the all the cases it receives, only between 3% and 4% are successful in being heard by the Court (para 8).

Revisiting Miscarriages of Justice  297 cautious in its application of the test and we recommend that it alter its approach accordingly’.52 The test itself, having been accused of fettering the role of the CCRC, was not rejected by the committee per se, but rather it recommended that the Law Commission review the Court of Appeal’s grounds for referring appeals.53 It further recommended that the CCRC be granted additional funding; be allowed greater discretion in deciding upon the types of cases it investigates; have the power to compel evidence from private bodies; engage more with applicants; and develop a formal system for conveying information to other actors in the criminal justice system on its ‘understanding of the issues which are continuing to cause miscarriages of justice’.54 This last recommendation underscores the unique position the CCRC is in regarding furthering an understanding of those factors that contribute to miscarriages of justice, from both academic and practical perspectives. The government’s response to the recommendations of the Justice Select Committee’s report was long on support and short on substance.55 Currently, however, the UK government is undertaking a further ‘Tailored Review’ of the CCRC in order to ascertain if there is a continuing need for the organisation in its current form and function.56 Innocence projects on the other hand have a narrower remit: their work is essentially focused on factual innocence claims. Adhering to a lay concept of innocence, these projects view a person as innocent by virtue of not having committed the crime of which they are accused or convicted. As Roberts and Weathered point out, however, innocence in the legal context is considerably more complex, given the myriad ways that innocence could be defined.57 In cases where legal or procedural errors result in a wrongful conviction, upon winning an appeal to overturn their conviction, such a person would not ordinarily be considered ‘innocent’ outside legal arenas. Furthermore, such an individual would not be a candidate for an innocence project if they were, in fact, guilty, despite being the victim of a miscarriage of justice. A popular or media conception of miscarriage of justice may be closer to ideas of actual innocence than cases of procedural error, whereas the legal system definition would include both.58 Thus, innocence projects and the CCRC have different mandates: the former focuses on proving cases of actual innocence, while the latter is concerned with the safety of the original conviction. As such, in the UK innocence projects are 52 ibid para 20. 53 ibid para 28. 54 ibid para 53. 55 Ministry of Justice, Government response to the Justice Select Committee’s Twelfth Report of Session 2014–2015: Criminal Cases Review Commission, available at: www.gov.uk/government/uploads/ system/uploads/attachment_data/file/445037/ccrc-response.pdf. 56 Ministry of Justice, Tailored Review of the Criminal Cases Review Commission: Call for Evidence, available at: consult.justice.gov.uk/digital-communications/ccrc-review-call-for-evidence. The government is required to undertake tailored reviews of their arm’s length bodies once every five years, the lifetime of a Parliament; it has yet to report on this current review. 57 Roberts and Weathered (n 21) 7. 58 ibid.

298  Kathryn M Campbell limited in terms of the cases they can refer to the CCRC, as it will only consider cases when the safety of the conviction is in question, working within the strict parameters of the Court of Appeal, which has been reluctant to quash convictions based on the grounds of fresh evidence (in most cases innocence projects are seeking fresh evidence of actual innocence) and cases of ‘lurking doubt’.59 Roberts and Weathered, however, believe that the two are in fact compatible, as it is possible for innocence projects to locate new evidence that suggests innocence, which the CCRC can then refer to the Court on the basis that the conviction is unsafe.60 Further, given the severe cuts to legal aid in the UK of late,61 committed solicitors are limited in taking on such cases,62 thus innocence project students have a role to play in doing the investigative legwork seeking evidence of innocence.63 Importantly, innocence projects play a significant role in legal education and criminal justice reform as has become apparent in the US.64 It has also been argued that given the intractable nature of many wrongful convictions and the years and effort involved in seeking ever-elusive exonerations, that the real value of innocence projects is solely educational.65 Questions remain, however, as to the role of innocence – for both innocence projects and the CCRC – as well as with respect to miscarriages of justice, and in turn how such cases are treated by the Court of Appeal. While great strides have been made since the egregious miscarriages of justice seen in the 1970s and 1980s in the UK, it appears that both systemic reform and the mechanisms in place to address such problems (ie, the CCRC and innocence projects), have failed in their task and miscarriages of justice continue to occur and remain difficult to overturn. Walker’s influence is manifest in the ongoing debates regarding questions of innocence and miscarriages of justice. While his early definition may have set the parameters for understanding miscarriages of justice as rights violations, the innocence movement appears to have co-opted the agenda and framed the debate as one now focusing exclusively on wrongful convictions and factual innocence. There are clearly stumbling-blocks posed by this development on a procedural 59 This ground of appeal requires that the Court form its own subjective opinion about the correctness of the jury verdict, notwithstanding the fact that no criticism can be made of the trial, and there is no fresh evidence: R v Cooper (1969) 53 Cr App R 82 (Roberts and Weathered (n 21) 14). 60 Roberts and Weathered (n 21) 17. 61 Owen Bowcott, ‘Law Society takes action over cuts to legal aid fees’ The Guardian (25 January 2018), a­vailable at: www.theguardian.com/law/2018/jan/25/law-society-takes-action-over-cuts-tolegal-aid-fees. 62 Solicitors are awarded £150 for an application to the CCRC, regardless of the amount of time required. Given that such investigations can take hundreds of hours, the majority of work done on such cases is inevitably pro bono. 63 Roberts and Weathered (n 21) 20. 64 See, eg, www.innocenceproject.org/reform. Students attached to innocence projects also develop a number of skills and aptitudes essential to litigation practice, such as critical thinking, legal analysis, interviewing, counselling, fact-finding and case management. C McCartney, ‘Liberating Legal Education? Innocence Projects in the US and Australia’ (2006) 3 Web Journal of Current Legal Issues. 65 ibid.

Revisiting Miscarriages of Justice  299 level given that UK innocence projects are somewhat thwarted by the CCRC’s own self-imposed limitations in terms of the cases it will examine, and potentially, refer to the Court of Appeal. At the same time UK innocence projects, representing a well-meaning attempt to fill that gap for those ‘wrong-person’ cases, have not been particularly successful in that regard.

III.  The CCRC as an Option for Canada? Despite the many criticisms of the CCRC,66 when held up in comparison to other post-conviction practices, it is effective in many respects. Garrett points out that it is ‘the leading model for an administrative body designed to review claims of innocence’.67 So much so that other jurisdictions have adopted similar models, for example in Scotland, Norway and North Carolina. Clearly, most common law jurisdictions require some form of post-conviction review, one that goes beyond court remedies and preferably one that is independent of government.68 In a comparative legal study examining the applicability of a CCRC-type review body for the Canadian jurisdiction, Walker and I outline the benefits and drawbacks of such an approach.69 The current situation in Canada for conviction or ministerial review, following unsuccessful appeals, is similar to that which occurred in the UK prior to the advent of the CCRC. It is ultimately a decision for the Minister of Justice as to whether a conviction can be sent back to a provincial court of appeal, based on a recommendation made by a group of six lawyers who work for the Criminal Conviction Review Group (CCRG) to which applicants must send their file for review. To be successful, applicants must include new and significant information (or fresh evidence) related to the conviction that was not already heard on appeal and must convince the minister that a miscarriage of justice ‘likely occurred’.70 In comparison to the CCRC, conviction review in Canada is protracted, costly and few cases are heard in a given year. While the CCRG receives about 21 cases annually, over a 13-year period (2002–15) it has referred only 16 cases to differing courts of appeal, but of that number 15 were overturned. Thus, it has a low referral rate of 5.8 per cent of applications, but a high success rate of determined cases at 93 per cent.71 At the same time, in its 20 years of operation, the CCRC has referred

66 See ch 15 (Roberts) in this collection for further discussion. 67 B Garrett, ‘Towards an International Right to Claim Innocence’ (2017) 105 California Law Review 1173, 1212. 68 Leverick et al (n 13). 69 C Walker and K Campbell, ‘The CCRC as an Option for Canada: Forwards or Backwards?’ in M Naughton (ed), Criminal Cases Review Commission: Hope for the Innocent? (Basingstoke, Palgrave MacMillan, 2009). 70 s 696.1–696.6 Criminal Code (RSC, 1985, c C-46). 71 Leverick et al (n 13).

300  Kathryn M Campbell 636 cases out of a total of 23,150 applications to the Court of Appeal, of which 421 appeals were allowed.72 While these figures are not directly comparable, the output of the CCRC far exceeds the CCRG and this reflects how these bodies may be viewed within the criminal justice system in terms of their overall efficacy in addressing miscarriages of justice. The idea of an independent commission for Canada is not a new one. Six commissions of inquiry that examined the factors that led to individual wrongful convictions have each advocated for the establishment of such a commission in Canada, along the lines of the CCRC, although governments continue to fail to act.73 In 1999, Walker and I cautiously recommended a similar type of commission for Canada. While the CCRC has been far more effective in overturning miscarriages of justice compared with executive-based review, as seen with the CCRG, the failure to resource it generously or to reform the Court of Appeal have undermined its delivery. A similar body in Canada would need to be separate from government to enhance its credibility, and it would have to be sufficiently resourced, but could play a role in addressing both the individual and systemic factors that contribute to miscarriages of justice. From this perspective, a more holistic view of miscarriages of justice would demand cooperation between lobby groups, courts, prisons and parliamentary committees.

IV.  Flawed Forensic Science and Problematic Expert Testimony Walker’s expansive knowledge of error in criminal justice system processes has also found a place in the arena of international comparative law.74 While his initial work in the area of miscarriages of justice was greatly influenced by his doctoral research on terrorism and wrongful convictions that had occurred in the UK during the 1970s and 1980s, such cases are in a unique category, and an even greater number of miscarriages do not relate to terrorism. Walker and McCartney make the point that these latter cases are even more significant as they have occurred in more commonplace circumstances under ‘normal’ p ­ olicing

72 CCRC case statistics, available at: ccrc.gov.uk/case-statistics. 73 They include the Royal Commission on the Donald Marshall Jr Prosecution (1989); the Commission on Proceedings Involving Guy Paul Morin (1998); the Inquiry Regarding Thomas Sophonow (2001); the Lamer Commission of Inquiry Pertaining to the Cases of: Ronald Dalton, Gregory Parsons, Randy Druken (2006); the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell (2007); the Commission of Inquiry into the Wrongful Conviction of David Milgaard (2008), as well as the findings from the Goudge Commission of Inquiry (Goudge, 2008). 74 Further, McCartney and Walker’s recent work presents pressing arguments for the need for more practical remedies in jurisdictions that execute alleged ‘enemies of the state’, such as India and that lessons can be learned from early UK experiences with similar terrorist threats. C McCartney and C Walker, ‘Enemies of the State and Miscarriages of Justice’ (2014) 32 Delhi Law Review 17.

Revisiting Miscarriages of Justice  301 regimes, without the pressures induced by terrorism.75 The issue of flawed forensic science and overreliance on problematic expert testimony, so much a part of the early terrorist-based miscarriages of justice of the 1980s and 1990s, arose once again in the UK and Canada in the early 2000s regarding paediatric forensic pathology. During that time, errors made by pathologists (for example, Sir Roy Meadow in the UK and Dr Charles Smith in the province of Ontario, Canada) testifying in criminal cases on sudden deaths of infants resulted in serial miscarriages of justice. In 2007, the Inquiry into Paediatric Forensic Pathology in Ontario, chaired by Stephen Goudge, was mandated to examine the circumstances surrounding questionable autopsy results in a number of cases of unexplained child death; all of these were the work of (then) Dr Charles Smith. Despite over 20 years of working as a paediatric forensic pathologist, Smith did not possess the appropriate certification and training.76 An earlier review of his work found 20 questionable cases, where 12 had resulted in findings of guilt by the courts.77 Not only did Smith have no training in paediatric forensic pathology, he failed to prepare himself adequately on complex matters, overstating his knowledge and testifying outside his own limited area. Smith’s presentation of the evidence was rarely balanced and far too equivocal for such a controversial topic as sudden infant death, often loaded with subjective interpretations and careless case construction. In 2011, the Ontario College of Physicians and Surgeons instituted disciplinary proceedings against Smith for failing to maintain the standard practice of the profession, as well as for engaging in ‘disgraceful conduct and incompetence’;78 he was stripped of his licence to practise medicine, the maximum penalty it is allowed to impose. The experience of one victim of Smith’s errors, Tammy Marquardt, illustrates the reach of Smith’s mistakes. Marquardt was convicted of the murder of her two-year-old son in Scarborough, Ontario in 1993. Her son had serious health issues including asthma, pneumonia and epilepsy and was frequently hospitalised. The bulk of evidence used to convict Marquardt was Smith’s testimony at trial that the infant had either died of strangulation or suffocation. Marquardt was released after serving 14 years of a life sentence; meanwhile her two other children were seized by the Children’s Aid Society and adopted by other families. Expert testimony on appeal found ‘there is not sufficient evidence for the diagnosis of asphyxia’ and while unascertained, her son’s death may have been due to a seizure brought

75 Walker and McCartney (n 36) 183. 76 K Campbell and C Walker, ‘Pathological Error: Reacting to the Limits of Expertise in Legal Process’ (2012) 3 Law & Justice Review 16. 77 ST Goudge, Inquiry into Pediatric Forensic Pathology in Ontario (2008), available at: www. attorneygeneral.jus.gov.on.ca/inquiries/goudge/index.html. 78 ‘Disgraced pathologist Charles Smith stripped of medical licence’ The Globe and Mail (1 February 2011), available at: www.theglobeandmail.com/news/national/disgraced-pathologist-charles-smithstripped-of-medical-licence/article578634.

302  Kathryn M Campbell on by asthma and pneumonia. Marquardt’s conviction was set aside in 2010 and a new trial ordered; the Crown ultimately withdrew the charges against her.79 Similarly, in the UK, Sir Roy Meadow made a number of errors in his expert testimony on sudden, unexplained child deaths.80 While Meadow’s errors did not match Smith’s in terms of their sheer numbers,81 the ramifications were nonetheless great. In two leading child death cases in 2003 involving Sally Clark82 and Angela Cannings,83 the Court of Appeal quashed the verdicts in both cases, in part due to the fact that the expert testimony, presented by Meadow and other pathologists,84 was problematic. Sally Clark had been convicted in 1999 of killing her two sons and served three years of her sentence before her conviction was overturned on appeal in 2003. While forensic evidence was presented by a number of experts including Meadow, it was his statistical calculation that proved most dubious. At trial, evidence was given in relation to the likelihood that two SIDS (Sudden Infant Death Syndrome) deaths would occur within one family and when asked to calculate the risks, he stated, ‘it’s approximately a chance of 1 in 73 million’.85 Furthermore, in the Cannings case, three young children had died and Angela Cannings had been convicted of smothering two of them in 2002. Meadow had appeared as an expert in her case, and to bolster the prosecution theory that she had smothered them, he described one sudden infant death as a tragedy, two as suspicious and three as murder until proved otherwise.86 Cannings’ conviction was overturned on appeal in 2003, in part due to fresh evidence indicative of a genetic problem in the defendant’s family.87 Meadow was later disciplined by the General Medical Council’s Fitness to Practise Panel and was struck off the medical

79 K Campbell, Miscarriages of Justice in Canada: Causes, Responses, Remedies (Toronto, University of Toronto Press, 2018). 80 See, eg, the cases of Sally Clark [2003] EWCA Crim 1020, Angela Cannings [2004] EWCA Crim 1, and Donna Anthony [2005] EWCA Crim 952. 81 Meadow was often one of several experts presenting evidence at trial for the following cases where the evidence was eventually disregarded: Angela Cannings, Sally Clark, Donna Anthony, Trupti Patel. The decision in Cannings led to a further review by the Attorney General of 258 convictions within the previous 10 years relating to homicide or infanticide of a baby under two by a parent; although the CCRC reviewed 28 cases, only one case was referred to the Court of Appeal. However, there were a further 49 cases reviewed affected by the work of Dr Alan Williams following the acquittal of Sally Clark. K Campbell and C Walker, ‘Medical Mistakes and Miscarriages of Justice: Perspectives on the Experiences in England and Wales’, submission to ST Goudge, Inquiry into Pediatric Forensic Pathology in Ontario (November 2007), available at: www.attorneygeneral.jus.gov.on.ca/inquiries/ goudge/policy_research/pdf/CAMPBELL_WALKER.pdf. 82 [2003] EWCA Crim 1020. 83 [2004] EWCA Crim 1. 84 Evidence was also presented by Dr Alan Williams (a Home Office pathologist), Dr Keeling (­pediatric pathologist) and Professor Michael Green (Professor of Forensic Pathology); Campbell and Walker, ‘Pathological Error’ (n 76). 85 Sally Clark [2000] EWCA Crim 54, para 96. 86 See further, R Carpenter et al, ‘Repeat Sudden Unexpected and Unexplained Infant Deaths: Natural or Unnatural?’ (2005) 365 The Lancet 29. 87 Campbell and Walker, ‘Medical Mistakes and Miscarriages of Justice’ (n 81).

Revisiting Miscarriages of Justice  303 register on grounds of serious professional misconduct ‘by having given evidence about statistics that he had misunderstood and by having failed to make clear that he was not an expert in statistics’.88 Dr Alan Williams, a prosecution forensic pathologist, had also failed to disclose microbiological reports that suggested the second of Clark’s sons had died of natural causes; he was later disciplined by the Medical Board.89 In my own work with Walker,90 submitted to the Goudge Inquiry, we illustrated that such errors will continue to occur when forensic specialists do not respect the limits of their expertise. Such problems arise at trial when conclusions are presented by experts that are often cloaked in dense scientific language, the implication being that such results are factually unassailable. While reform to forensic services continues to occur in a piecemeal fashion in the legal system of England and Wales, lessons from both jurisdictions underline the importance of the task of ensuring high standards of forensic evidence through enduring vigilance and self-criticism rather than a single reform deed. However, without systemic and institutional reform, backed by resources and funding, as sustained in the province of Ontario following the Goudge Inquiry recommendations, the danger is that standards will slip and similar errors will occur.

Conclusion In response to the question as to whether miscarriages of justice can be addressed through innocence projects – the answer is a qualified yes. If one accepts that a wrongful conviction is simply one form, albeit a core case as Walker has noted, of a miscarriage of justice, then in a rather limited manner, innocence projects serve that purpose. At the same time, innocence projects themselves in the US and the UK appear to serve different functions – and in particular in the UK such projects are very few in number and scope. Their mandates appear to differ as well: in the US innocence projects serve as legal clinics in many law schools and have been successful in overturning a number of wrongful convictions, whereas in the UK the few that do exist are rather limited in facilitating exonerations through CCRC referrals and focus more on the legal training experience. In terms of popular representations of miscarriages of justice, particularly in the US, innocence projects dominate the discourse and to a degree set the research agenda. In the UK, however, their role appears mainly to serve a pedagogical function for law students. Clearly, Walker’s contribution to the study of miscarriages of justice is evident in a number of ways. In our comparative law work, we were able to make a case for



88 ibid 89 ibid

90 ibid.

29. 32.

304  Kathryn M Campbell a CCRC-type review body in the Canadian context, despite its limitations. Further, in our examination of a recent resurgence in forensic science errors and how they may contribute to miscarriages of justice through expert testimony, we illustrate the lessons that can be learned from past errors and through comparative legal analysis. Most significantly, however, since Walker coined his significant definition in 1993, what appears to have occurred is that the study, and rectification, of miscarriages of justice has moved away from larger questions of injustice resulting from human rights violations to a narrow focus on innocence. As illustrated in this chapter, the spread of innocence projects, both in the US and the UK has affected how miscarriages of justice and innocence are now defined and understood. While the innocence movement, internationally, is clearly a pragmatic response to the problem of wrongful convictions, it is singularly instrumental in its approach. Leo maintains that much wrongful conviction scholarship in the United States has resulted in an ‘intellectual dead end’ by reinventing the wheel each time, a pattern that involves reiterating well-known causes and then recommending possible policy responses.91 Moreover, he believes that ‘one must go beyond the study of individual sources of error to understand how social forces, institutional logics, and erroneous human judgments and decisions come together to produce wrongful convictions’.92 It could likewise be argued that one must also go beyond the study of wrongful convictions alone and make use of Walker’s definition and his broader appreciation of other injustices. Such measures could only enrich academic understanding of miscarriages of justice, outside questions of innocence and further enhance such scholarship.

91 R Leo, ‘Rethinking the Study of Miscarriages of Justice: Developing a Criminology of Wrongful Conviction’ (2005) 21 Journal of Contemporary Criminal Justice 201. 92 ibid.

part iii A Retrospective

306 

18 Living with Counter-Terrorism Laws and their Discontents clive walker* Making Choices in the Life of Counter-Terrorism Laws In 1996, I published a paper, entitled ‘Anti-terrorism Laws for the Future’ which appeared in two instalments in the New Law Journal.1 It was written in response to the commissioning of Lord Lloyd’s Inquiry into Legislation against Terrorism.2 Those were momentous times. Leading up to what became the Peace Process 1998,3 the UK government was keen to demonstrate goodwill by engaging in the ‘normalisation’ of counter terrorism laws. This notion remained as contested then (and now)4 as it was when the first steps were taken in that direction following the Diplock Report of 1972.5 Four options for the reform of counter-terrorism laws were presented in my 1996 paper. In Stance 1, the counter-terrorism legislation is left as it stands. But ‘sticking to our guns’ was a troublesome stance. It was not consistent with a working assumption of a permanent peace. More positively, the removal of security laws could assist with the process of pacification, as was suggested by the Mitchell Report on decommissioning.6

* The author thanks all contributors to this volume, but especially the editors for their generous and gracious efforts in producing this book. The finest reward in academic life is the company of such supportive colleagues. 1 C Walker, ‘Anti-terrorism Laws for the Future’ (1996) 146 New Law Journal 586, 657. 2 Inquiry into Legislation against Terrorism (Cm 3420, 1996). See further, Home Office and Northern Ireland Office, Legislation against Terrorism (Cm 4178, 1998). 3 British Irish Agreement reached in the multi-party negotiations (Cm 3883, 1998). 4 J Blackbourn, Anti-Terrorism Law and Normalising Northern Ireland (Abingdon, Routledge, 2015). 5 Report of the Commission to Consider Legal Procedures to Deal with Terrorist Activities in Northern Ireland (Cmnd 5185, 1972). 6 Report of the International Body on Decommissioning (Belfast, Northern Ireland Office, 1996) para 53.

308  Clive Walker Stance 2, ‘Steady as you go’, was suggested by John Rowe in his 1995 Annual Review of the Northern Ireland (Emergency Powers) Act.7 He envisaged the gradual dismantling of the special laws in line with the gradual reduction of the paramilitary activity. His cautious approach was to some extent adopted but entailed the drawbacks of being too grudging for the achievement of political impact and of being too short-sighted to deal with future risks. Stance 3, ‘No emergency, no emergency law’, was suggested by the Committee on the Administration of Justice in their 1995 paper of that name.8 The main attractions are that it sends a dramatic signal that conflict is over and reliance on special security measures is no longer tolerable. These are attractive ideals, but the realism of such an approach can be questioned. First, even two decades later, the threat level from Irish terrorism is SEVERE in Northern Ireland and is MODERATE in Britain (recently downgraded from the level of SUSBTANTIAL which prevailed for the majority of the time since 2010 when levels were first announced).9 Secondly, terrorism is not confined to Irish terrorism, and the Lloyd Inquiry itself argued for a prescient pivot towards countering ‘international’ terrorism, which duly became the main threat for Britain after 9/11. Thirdly, my 1996 paper argued that total abolition of special legislation without replacement, throws the baby out with the bath water. In other words, safeguards and restraints, which have painstakingly been fought over, conceded and honed over a period of years, will be lost as well as the more reviled instruments of coercion to which they apply. But as and when the emergency powers are ever resurrected, one can be far from sure that the safeguards and restraints will likewise be resurrected.10

My preferred Stance 4 was originally labelled, ‘Break glass in case of emergency legislation’, but, reflecting its permanent impact, a better label might be ‘Handle with special care legislation’. The argument is that it is illogical to oppose all conceivable forms of special laws because one has concern for civil liberties. Rather, our concern for civil liberties should lead us to the conclusion that we should do our utmost to protect citizens against either zombie-like paramilitary organisations or uncontrolled security forces, and that to vacate the field to either faction is to abdicate responsibility for the governance of special powers. Instead, the philosophy of constitutionalism11 requires that the legislature can secure an important input if it can speak in advance of any crisis and can also secure for the judiciary an important voice in that crisis. Stance 4 posits that terrorism will persist in some guise or

7 Report on the Operation in 1994 of the Northern Ireland (Emergency Provisions) Act 1991 (Belfast, Northern Ireland Office, 1995). 8 CAJ, No Emergency, No Emergency Law: Emergency Legislation related to Northern Ireland, the case for repeal (Belfast, Committee on the Administration of Justice, 1995). 9 MI5, Security Levels, available at: www.mi5.gov.uk/threat-levels. 10 Walker, ‘Anti-terrorism Laws for the Future’ (n 1) 586–88, 657–58. 11 For its meaning, see C Walker, ‘Constitutional Governance and Special Powers Against Terrorism: Lessons from the United Kingdom’s Prevention of Terrorism Acts’ (1997) 35 Columbia Journal of Transnational Law 1.

Counter-Terrorism Laws and their Discontents  309 other, and that it is better to build upon the experience of previous legislation and litigation and to retain effective safeguards. At the same time, my 1996 paper recognised that Stance 4 incurred the danger of overuse: consequently, three safeguards should be incorporated. The first feature is to make debates about the legislation, especially in Parliament, more principled and informed and less emotional, by stating criteria and demanding evidence. The next safeguard is to enforce observance of these preconditions. This vigilance should be undertaken not simply by Parliament, whose record in emergencies is uninspiring, but also by an independent review system. The third restriction is that, once invoked, the actual application of special laws should be subjected to judicial control at some level. Was Stance 4 the right choice? The debate is ongoing, and objections arise on operational and policy grounds. As for operational grounds, derived from the ‘Israeli Experience’ of counterterrorism, some commentators have recently expressed doubts about the wisdom of police primacy.12 However, a reversion to pre-Diplock Report militarisation might indeed deliver more pristine policing but at great cost because of the more frequent excessive use of force and the loss of due process in the delivery of security which would encourage confrontation and attenuate consensual relationships.13 On policy grounds, some critics challenge the impact that so-called oxymoronic ‘permanent’ states of emergency have on the validity and effectiveness of constitutional norms and, ultimately, constituent power.14 However, this argument fails to distinguish between a state of emergency and a state of specialised risk. If special laws are passed to respond to other contemporary curses, such as human trafficking or organised crime, then do those codes equally constitute a permanent state of emergency? The issue is not whether the threat or risk is permanent, which it is, but whether the response goes beyond constitutional norms, which it need not.15 A more subtle form of warning to Stance 4 is announced in the First Annual Report of Fionnuala Ní Aoláin in her capacity as the Special Rapporteur of the Human Rights Council on the promotion and protection of human rights and fundamental freedoms while countering terrorism.16 One of her main substantive areas of enquiry will comprise ‘the proliferation of permanent states of emergency and the normalization of exceptional national security powers within ordinary legal systems’.17 The normalisation argument may be a distinct argument 12 T Jonathan-Zamir et al, Policing Terrorism, Crime Control, and Police-Community Relations: Learning from the Israeli Experience (Heidelberg, Springer, 2014). 13 See C Walker, ‘The Role and Powers of the Army in Northern Ireland’ in B Hadfield (ed), Northern Ireland Politics and the Constitution (Buckingham, Open University Press, 1992); TR Tyler, Why People Cooperate: The Role of Social Motivation (Princeton, NJ, Princeton University Press, 2011). 14 See A Greene, Permanent States of Emergency and the Rule of Law: Constitutions in an Age of Crisis (Oxford, Hart Publishing, 2018). 15 See further ch 2 (Dickson) in this collection. 16 First Annual Report (A/72/43280, New York, 2017). 17 ibid 2.

310  Clive Walker from the permanence argument but raises similar questions about the crossing of boundaries. It is more difficult to define what is ‘normal’ within a legal system rather than to identify its extremities – in other words, its ideals and its delinquencies. In reality, ‘normal’ laws, whether in the shape of police powers, criminal offences and procedures, or executive powers are never fixed.18 Terrorism represents a development of modernity (and of late modernity in the case of al-Qaeda)19 just as the advent of railways or the internet has triggered crimes and institutions to develop around them – for modernity, in the shape of train operation offences and the British Transport Police, or, for late modernity, child pornography offences and the Child Exploitation and Online Protection Command (now part of the National Crime Agency). So, Stance 4 still seems a good choice. But has it withstood the living proof of terrorism attacks, taken seriously the downsides, and delivered an acceptable version of normalisation? Consideration of the living proof is the next task of this chapter.

I.  The Living Proof Proof of the soundness of Stance 4 will be derived from counter-terrorism experience since 19 February 2001, the date of the final commencement order of the Terrorism Act 2000 – think of 2/19 not 9/11.20 My survey will consider in outline how each branch of state has handled counter-terrorism laws in terms of ideals or delinquencies since that date.

A.  Executive Performance There are signs aplenty that counter-terrorism law has been normalised as a permanent feature of executive activity. Indeed, counter-terrorism has pride of place in the UK National Security Strategy. So, as part of ‘National Security ­Objective 1: Protect our people’, one objective is to ‘Prioritise the fight against terrorism, radicalisation and extremism at home and overseas’.21 Aside from strategy, the normalisation of counter-terrorism can also be represented in organisational terms through the processes of ‘amplification’ and ‘melding’ of police forces and intelligence agencies.22 Amplification provides 18 See C Walker, ‘Intelligence and Anti-Terrorism Legislation in the United Kingdom’ (2006) 44 Crime, Law and Social Change 387. 19 See J Gray, Al Qaeda and What It Means to Be Modern (London, Faber and Faber, 2003). 20 Commencement Orders (nos 1–3) SI 2000/2800, 2000/2944, 2001/421. 21 National Security Strategy and Strategic Defence and Security Review 2015 (Cm 9161, 2015) para 1.11. 22 C Walker and A Staniforth, ‘The Amplification and Melding of Counter-Terrorism Agencies: From Security Services to Police and Back Again’ in A Masferrer and C Walker (eds), Counter-Terrorism,

Counter-Terrorism Laws and their Discontents  311 added capability, while melding involves the crossing of functional and structural boundaries. The paradigm case is the formation after 2005 of a comprehensive counter-terrorism policing network in the United Kingdom,23 which includes: the appointment of a Senior National Co-ordinator for Counter Terrorism and the UK National Counter Terrorism Policing Headquarters housed within the National Police Chiefs’ Council. This office supports the work of the Counter Terrorism Command in the Metropolitan Police Service,24 plus four regional Counter Terrorism Units (CTUs) and five regional Counter Terrorism Intelligence Units (CTIUs).25 As well as these CTUs and CTIUs (containing in total around 6,300 officers and 2,200 civilian staff),26 approximately 300 officers work on the Prevent Strategy and Delivery Plan under a National Coordinator for Police Prevent.27 The police also lead for Prepare and Protect via the National Counter Terrorism Security Office.28 The counter-terrorism policing permanent apparatus brings opportunities for greater professionalism and audit. However, there are several darker sides to these developments. Counter-terrorism policing remains distant from community involvement, which has been especially damaging to the implementation of Prevent. The cost is also formidable, but has been protected to some extent against the 20 per cent reduction in policing budgets since 2010.29 Thus, the allocation for counter-terrorism policing for 2016–20 of £700 million per annum has only been cut by 7.2 per cent.30 Turning to mechanisms relating to government departments, signs of permanence and professionalism are also reflected. Within the Home Office, the Office for Security and Counter Terrorism was created in 2007, and, within HM Treasury, the Office of Financial Sanctions Implementation began in 2016.31

Human Rights and the Rule of Law: Crossing Legal Boundaries in Defence of the State (Cheltenham, Edward Elgar, 2013). See also, D Anderson, The Terrorism Acts in 2015 (Home Office, 2016) ch 2. 23 See NPCC, ‘Counter-terrorism’, available at: www.npcc.police.uk/NPCCBusinessAreas/Terrorism andAlliedMatters.aspx. 24 Metropolitan Police, ‘Counter-Terrorism Command’, available at: news.met.police.uk/latest_news/ tag/counter-terrorism-command. 25 See Home Office, Pursue, Prevent, Protect, Prepare (Cm 7547, 2009) para 8.10; A Staniforth, Blackstone’s Counter-Terrorism Handbook (Oxford, Oxford University Press, 2009) ch 3. 26 D Anderson, The Terrorism Acts in 2015 (Home Office, 2016) para 3.10. 27 D Anderson, The Terrorism Acts in 2011 (Home Office, 2012) para 9.16. See further Home Office, Prevent Strategy (Cm 8092, 2011) para 11.18 et seq. 28 HM Government, ‘National Counter Terrorism Security Office’, available at: www.gov.uk/ government/organisations/national-counter-terrorism-security-office. This compares with an 18% cut in real terms to policing budgets between 2010 and 2011 and 2015 and 2016 (NAO, Financial sustainability of police forces in England and Wales (2015–16, HC 78)). 29 Sara Thornton, ‘Police funding: do we have the resources we need? (NPCC Blog, 22 September 2017), available at: www.npcc.police.uk/ThePoliceChiefsBlog/BlogCCSaraThorntonPolicefunding dowehavetheresource.aspx. 30 ibid. However, this reduction has since been offset by £24m and £50m grants in September and December 2017. 31 HM Government, ‘Office of Financial Sanctions Implementation HM Treasury’, available at: www.gov.uk/government/organisations/office-of-financial-sanctions-implementation.

312  Clive Walker A more prominent feature embedding ‘handling with care’ within a permanent counter-terrorism code is the office of the Independent Reviewer of Terrorism Legislation. Under Stance 4, independent review systems are demanded by the risk to ideals from counter-terrorism laws, by their extent and complexity, and by the sensitivity of their implementation which may limit public ­transparency.32 The Independent Reviewer had operated from time to time since 1984,33 but the system is now formalised and has become more substantial. Under the Terrorism Act 2000, section 126, there was a bare duty to ‘lay before both Houses of Parliament at least once in every 12 months a report on the working of this Act’ but without explanation of its provenance.34 Now, the office of the Independent Reviewer of Terrorism Legislation is specified by the Terrorism Act 2006, section  36, and the remit was further boosted by the Counter-Terrorism and Security Act 2015, section 45. It has been claimed that the impact of the system is ‘negligible’.35 However, one can point to positive indicators in process and substance.36 In process, the facts disclosed by, and policy analysis of, the Independent Reviewers are regularly and prominently relied upon in governmental papers, in parliamentary debates and reports and in key judicial decisions.37 In substance, the fact that most reports have been mostly supportive of the legislation and its implementation should not alone be a reason for denunciation provided objective grounds are furnished. Parliament and the government rightly have the final say, but the Independent Reviewers’ watchdog function increases pressure on the state to provide public rationalisations which can then be further debated and challenged. The system seems to be estimated as valuable within government, so much so that side projects have become increasingly commonplace.38 However, some signs of resistance to the all-conquering Independent Reviewer arise from time to time. First, the ambitious expansionary step of setting up a Privacy and Civil Liberties Board has not been implemented,39 but that backward step was accompanied by the grant of more resources. Next, the Sanctions and Anti-Money Laundering Bill 2017–1940 initially dropped the review function

32 Compare A Lynch and N McGarrity, ‘A “Watchdog” of Australia’s Counter-Terrorism Laws’ (2010) 12 Flinders Journal of Law Reform 83. 33 See Independent Reviewer of Terrorism Legislation, ‘History’, available at: terrorismlegislation reviewer.independent.gov.uk/history. Note also in Northern Ireland, the Standing Advisory Committee on Human Rights under the Northern Ireland Constitution Act 1973, s 20. 34 Hansard (House of Commons) Standing Committee D, col 312 (8 February 2000) (Charles Clarke). 35 J Blackbourn, ‘Evaluating the Independent Reviewer of Terrorism Legislation’ (2012) 65 Parliamentary Affairs 1, 10. 36 See further ch 6 (Anderson) in this collection. 37 There were 32 instances of judicial reliance (including two at European Court of Human Rights level) to the end of 2013. 38 See, eg, D Anderson, A Question of Trust (London, HMSO 2015); D Anderson, Report of the Bulk Powers Review (Cm 9326, 2016). 39 See Counter-Terrorism and Security Act 2015, s 46. 40 2017–19 HL 5.

Counter-Terrorism Laws and their Discontents  313 currently in the Terrorist Asset-Freezing etc Act 2010, section 31. The official response to calls for the continuance of independent oversight41 was that those subject to UK sanctions would be protected by the ability to request an ­administrative reassessment of the government’s decision, as well as to challenge their designation in the High Court. The government believes this provides sufficient procedural protection for designated persons and is consistent with the approach followed by the EU and by other international partners with autonomous sanctions powers. Therefore we are not proposing to establish an independent reviewer or Ombudsperson focused specifically on UK sanctions.42

Yet, the ability of the Independent Reviewer to conduct proactive and comprehensive review is distinct from oversight by the courts and so should not be sacrificed. In response to such criticism, a promise was made to restore the review function43 which appears in the Sanctions and Anti-Money Laundering Act 2018, section 31. In summary, the mechanisms of the executive have adjusted to life under Stance 4. But it has not been all plain sailing. The 2/19 era also included within its first year a notice of derogation which represents the antithesis to Stance 4.44 It took until 2005 for that derogation to be jettisoned. Though the government still hints that the factual situation may permit derogation,45 there has been no decisive movement away from Stance 4 despite the shocking attacks of 7/7 and 2017.46

B.  Legislative Performance The legislature has likewise adapted to the permanence of counter-terrorism but with some slips along the way. Since 2/19, the Prevention of Terrorism Act 2005 stands out as one dark moment.47 Control orders were hastily enacted following a government defeat in A v Secretary of State for the Home D ­ epartment.48

41 HM Government, Public Consultation on the United Kingdom’s Future Legal Framework for Imposing and Implementing Sanctions (Cm 9408, 2017) para 5.12. 42 ibid para 5.13. 43 Government Reply to the Joint Committee on Human Rights, Legislative Scrutiny: The Sanctions and Anti-Money Laundering Bill (2017–19, HL 87, HC 568 (25 April 2018). 44 Relating to indefinite detention without trial under the Anti-terrorism, Crime and Security Act 2001, s 21. 45 Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights (Seventeenth Report): Bringing Human Rights Back In (2009–10, HL 86, HC 111) para 11. 46 See Home Office, Report of the Official Account of the Bombings in London on 7th July 2005 (2005–06, HC 1087); D Anderson, Attacks in London and Manchester March–June 2017: Independent Assessment of MI5 and Police Internal Reviews (London, Home Office, 2017); M. Hill, The Westminster Bridge Terrorist Attack 22 March 2017 Operation Classific (Independent Reviewer of Terrorism Legislation, London, 2018); Lord Kerslake, An Independent Review into the preparedness for, and emergency response to, the Manchester Arena attack on 22nd May 2017 (2018). 47 See A Horne and C Walker, ‘Lessons Learned from Political Constitutionalism? Comparing the Enactment of Control Orders and Terrorism Prevention and Investigation Measures by the UK Parliament’ [2014] Public Law 267. 48 A v Secretary of State for the Home Department [2004] UKHL 56.

314  Clive Walker By contrast, the Terrorism Prevention and Investigation Measures Act 2011 (TPIM Act 2011) was a more leisurely and considered affair. As evidence of handling with care, the government conducted a substantial Review of CounterTerrorism and Security Powers,49 which was subject to independent scrutiny by Lord Macdonald.50 Yet, this experience of transition from the 2005 Act to the 2011 Act was not entirely successful as an exercise in constitutionalism. First, alongside the resultant TPIM Act 2011, the government also published a draft Bill containing a more stringent version of TPIMs which was to be held in reserve for some future unspecified emergency.51 Secondly, the TPIM regime is subject to post-­ legislative scrutiny, including annual review by the Independent Reviewer, but the involvement of Parliament has been scaled back considerably by the termination of annual debates. Imposing reviews (or sunset provisions)52 on these types of powers should be an aspect of handling with care. Following parliamentary attempts to revive annual renewal or to insert a sunset provision, the government eventually responded by introducing into the TPIM Bill a clause for renewal53 (now section 21 of the 2011 Act). However, this provision takes effect only after five years. Despite the best efforts of the Joint Committee on Human Rights to engage in an open and critical consultation process,54 the actual renewal process was a damp squib, based on a brief preliminary assessment by the Home Office,55 followed by a perfunctory debate in the House of Commons Third Delegated Legislation Committee.56 This relative failure of political constitutionalism57 should not, however, mask the progress of the legislature since 2/19, since many more legislative deficiencies can be found in the era before the Terrorism Act 2000. Thus, that era began with the Prevention of Terrorism (Temporary Provisions) Act 1974 – panic legislation par excellence passed in a few days when Parliament was baying for revenge for the Birmingham pub bombings.58 The era drew to a close 49 Home Office, Review of Counter-Terrorism and Security Powers (Cm 8004, 2011). 50 Lord Macdonald, Review of Counter-Terrorism and Security Powers (Cm 8003, 2011). 51 Home Office, Draft Enhanced Terrorism Prevention and Investigation Measures Bill (Cm 8166, 2011). See C Walker, ‘Legal Perspectives on Contingencies and Resilience in an Environment of Constitutionalism: An Overview’ (2014) 18 International Journal of Human Rights 119. 52 A Lynch, ‘The Impact of Post-enactment Review on Anti-terrorism Laws: Four Jurisdictions Compared’ (2012) 18 Journal of Legislative Studies 64. 53 HC Deb 5 September 2011, vol 532, col 50. 54 Joint Committee on Human Rights, Post Legislative Scrutiny: Terrorism Prevention and Investigation Measures Act 2011: Tenth Report of Session 2013–14 (2013–14 HL 113, HC 1014). 55 Home Office, Memorandum to the Home Affairs Committee: Post-Legislative Scrutiny of the Terrorism Prevention and Investigation Measures Act 2011 (Cm 9348, 2016). 56 Draft TPIM Act 2011 (Continuance) Order 2016 (26 October 2016). The final order is SI 2016/ 1166. See further, A Hunt, ‘From Control Orders to TPIMs’ (2014) 62 Crime, Law and Social Change 289; H Fenwick, ‘Terrorism and the Control Orders/TPIMs Saga’ [2017] Public Law 609. 57 See F Londras and F Davis, ‘Controlling the Executive in Times of Terrorism’ (2010) 30 Oxford Journal of Legal Studies 19; Horne and Walker (n 47). 58 See C Walker, The Prevention of Terrorism in British Law, 2nd edn (Manchester, Manchester University Press, 1992) ch 4.

Counter-Terrorism Laws and their Discontents  315 with the Criminal Justice (Terrorism and Conspiracy) Act 1998, passed in just two days after the Omagh bombing.59 Such lapses should be less in evidence after the more stable and comprehensive counter-terrorism code was put in place after 2/19. Broadly speaking, that has been the pattern, subject to the lapse in 2005. Another shortfall occurred in 2010, when the initial legislative response to the unanticipated decision on 27  January  2010 in HM Treasury v Ahmed60 was the Terrorist Asset-Freezing (Temporary Provisions) Act 2010, which was passed in four days. However, that legislation was replaced, following considerable debate over nearly a year, by the Terrorist Asset-Freezing etc Act 2010. By contrast the major legislation of the post-2/19 period has been handled with more care. The Terrorism Act 2006 took up many months of deliberation, even in the aftermath of 7/7. The CounterTerrorism Act 2008 also was fully considered, despite the attacks on Glasgow airport and elsewhere. Even the Counter-Terrorism and Security Act 2015, announced in the midst of the emergency of Islamic State and foreign terrorist fighters61 and subject to the ‘fast-track’ legislative process,62 in fact progressed over several months and with a welter of documentation.63 At best, all one can say is that ‘Parliament has been an effective check at times’.64 Amongst its proven advantages are that it can proactively shine a light on policy before it becomes immutable. It can engage with policy on a broad front, including political aspects, in ways which courts would view as unmanageable (non-­justiciable) or moot. It can connect interactively with a wide section of civil society and the media, thereby performing ‘a vital legitimating role’.65 At the same time, the political setting inevitably imposes limits in terms of the quality of debates. Conversely, the courts can demand information disclosure in a direct and enforceable way which a select committee would shy away from. Next, courts should always decide on the balance of detailed and balanced tested evidence. Ultimately, courts can enforce their verdicts and thereby make a tangible difference, even if the policy at issue is not of prime political attention and even if the terrorist litigant is deeply unpopular. The conclusion is that UK political constitutionalism has generally applied more care in its handling after 2/19 of counter-terrorism legislation. Some of the 59 C Walker, ‘The Bombs in Omagh and their Aftermath: The Criminal Justice (Terrorism and Conspiracy Act 1998)’ (1999) 62 Modern Law Review 879. 60 HM Treasury v Ahmed [2010] UKSC 2. Postponement of the quashing was rejected: HM Treasury v Ahmed [2010] UKSC 5. 61 HC Deb 1 September 2014, vol 585 cols 23–27. 62 See Select Committee on the Constitution, Fast-Track Legislation: Constitutional Implications and Safeguards (HL 2008–09, 116). 63 J Blackbourn and C Walker ‘Interdiction and Indoctrination: The Counter-terrorism and Security Act 2015’ (2016) 79 Modern Law Review 840. 64 D Anderson, Control Orders in 2011: Final Report of the Independent Reviewer on the Prevention of Terrorism Act 2005 (Home Office, 2012) para 11.4. 65 AW Neal, ‘Terrorism, Lawmaking, and Democratic Politics: Legislators as Security Actors’ (2012) Terrorism and Political Violence 357, 362.

316  Clive Walker most serious and enduring challenges after 2/19 in the European Court of Human Rights relate to legacy cases (especially around the use of lethal force)66 while the vast majority of the challenges to the post-2/19 terrorism legislation have been rebuffed.67

C.  Judicial Performance Turning to judicial constitutionalism, modifications in the judicial approach to counter-terrorism laws have occurred.68 Thus, judicial review observes a decreasing level of deference, as is consistent with Stance 4. While the executive knows best in policy initiative and invocation,69 the application of policy, especially to individuals, should appropriately fall within the remit of the courts.70 In this way, the UK judges have moved away from the treatment of security matters as non-justiciable or as subject to thick layers of deference to the executive, as occurred before 2/19. A jurisprudence of the control of security powers has begun to develop.71 Those like Agamben72 who articulate an emergency, executive-dominated constitution ‘neglect how the judicial habitus, in its rearticulation of the rule of law via individual cases, affirms due process values and continues to provide some protection from arbitrary state power’.73 Thus, the judges have resisted ‘legal back holes’; while shades of grey remain, the executive can no longer count on judicial indulgence.74 However, two limits affect judicial assertiveness. One is that judicial assertiveness is uneven. The liberty of the individual is of prime concern to the judges, as signalled by the decision in A v Secretary of State for the Home Department.75 But the Gillan case (upholding stop and search powers – explained further below) equally illustrates that what counts as ‘liberty’ may be affected by judicial disinterest in low-level surveillance (and its impact

66 See H Quirk, ‘Don’t Mention the War: The Court of Appeal, the Criminal Cases Review Commission and dealing with the past in Northern Ireland’ (2013) 76 Modern Law Review 949; H Russell, The Use of Force and Article 2 of the ECHR in Light of European Conflicts (Oxford, Hart Publishing, 2017). 67 See Ministry of Justice, Reports to the Joint Committee on Human Rights on the Government’s response to human rights judgments (Cm 8162, 2011; 8432, 2012; 8727, 2013; 8962, 2014; 9360, 2016; 9535, 2017). 68 See C Walker, ‘Counter-Terrorism and Human Rights in the UK’ in M Breen-Smyth (ed), The Ashgate Research Companion to Political Violence (Farnham, Ashgate, 2012); F Davis and F de Londras, Critical Debates on Counter-Terrorist Judicial Review (Cambridge, Cambridge University Press, 2016). 69 EA Posner and A Vermeule, Terror in the Balance (New York, Oxford University Press, 2007) 31. 70 A v Secretary of State for the Home Department (n 48) para 42 (Lord Bingham). 71 C Walker, ‘The Threat of Terrorism and the Fate of Control Orders’ [2010] Public Law 4. 72 G Agamben, The State of Exception (Chicago, IL, University of Chicago Press, 2005). 73 B Vaughan and S Kilcommins, Terrorism, Rights and the Rule of Law (Cullompton, Willan, 2008) 13. 74 J Steyn, ‘Guantanamo Bay: The Legal Black Hole’ (2004) 53 International & Comparative Law Quarterly 1. 75 [2004] UKHL 56.

Counter-Terrorism Laws and their Discontents  317 on privacy) or in pre-trial policing.76 That performance contrasts with the courts’ attention to the enforcement of due process rights.77 The second limit is that the intervention by judges has been time-sensitive. Rights gain traction as counter-terrorism campaigns mature. One might speculate that operative factors include a growing comprehension of the nature and severity of the risk to state security. The judiciary and legislature might also become emboldened by the revelation of executive mistakes or excesses, a transition reflected by Lord Hoffman, who in A v Secretary of State for the Home Department stated: Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community … The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.78

Despite the broadly progressive picture here depicted, substantial paradoxes and weaknesses remain in the protection of human rights. However, that proviso is a far cry from claims about the ‘futility’ of human rights79 which misreads the emergent jurisprudence of national security controls now being devised by courageous High Court judges. The lessons of recent history and the prospects for the future of national security jurisprudence also point towards the rejection of the gullible belief80 that a return to positivism in which the executive dominates the security agenda through subjective and secretive assessments will handle with care individuals and collectives affected by the excesses of counter terrorism laws.

II.  The Discontents The discontents of counter-terrorism law deserve equal attention to the more ­positive ‘living proof ’, but this section will be shorter because other papers will explore with greater insight and precision some of the discontents around miscarriages of justice, which represent not just technical faults but a symbiotic emanation from extreme counter-terrorism. The notion of ‘discontents’ is derived from Freud’s Civilization and its Discontents.81 Freud posited an inevitable clash between the desire for the 76 R (Gillan) v Metropolitan Police Commissioner [2006] UKHL 12. Compare Gillan and Quinton v United Kingdom App no 4158/05 (12 January 2010). 77 See Secretary of State for the Home Department v MB; Secretary of State for the Home Department v AF [2007] UKHL 46; Secretary of State for the Home Department v AF (no 3) [2009] UKHL 28. 78 [2004] UKHL 56, paras 96, 97. Compare Secretary of State for the Home Department v Rehman [2001] UKHL 47, para 62. 79 KD Ewing and JC Tham, ‘The Continuing Futility of the Human Rights Act’ [2008] Public Law 668. 80 D Campbell, ‘The Threat of Terrorism and the Plausibility of Positivism’ [2009] Public Law 501. 81 S Freud, Civilization and its Discontents (1930, reprinted London, Penguin, 2002).

318  Clive Walker expression of individuality and the expectations of society about conformity and the prioritisation of communal (or state) interests. Other Leeds professors have also invoked the concept of ‘discontents’. Thus, Zygmunt Bauman’s Postmodernity and its Discontents82 asserts that the liberty of the individual is now the contemporary overriding value. As a result, collective security must be sacrificed, and removal of security rather than the removal of liberty engenders more anxieties in our late modern society. These contentions that freedoms have triumphed and security has been diminished seem highly contestable. In law, most freedoms are constructed with exceptions for security. Likewise in practice, one finds major incursions by the state, especially on grounds of counter-terrorism. So, the intrusions into liberty by the state rather than allegedly enfeebled state security remain more insistent concerns in contemporary society. There are three sets of discontents under Stance 4.

A.  State Exaggeration and Overuse The dangers of overuse and exaggeration were identified as inherent dangers in Stance 4 and have been experienced since 2/19. The great shock of 9/11, as already noted, produced the claim of an existential threat worthy of a derogation notice and detention without trial. Things could have been worse – the US even declared war on terrorism, which commenced a damaging epoch of ‘War All the Time’83 as well as ‘War everywhere’.84 This strategic exaggeration and consequent overuse of special powers has also resulted in economic excesses.85 Elsewhere, including in the UK, the drive towards ‘constitutionalism’, which is embodied under Stance 4, has provided a critical perspective for developments since 2/19. Thus, most governments have not declared an all-encompassing ‘war on terror’, nor have they engendered a ‘zone of anomie in which all legal determinations are deactivated’.86 Ideals have not been suspended for the sake of the ‘war on terror’ or ‘criminal law of the enemy’,87 but societies have adapted to a new normality of terrorism. As the 82 Z Bauman, Postmodernity and its Discontents (Cambridge, Polity Press, 1997). 83 C Walker, ‘Prisoners of “War all the Time”’ [2005] European Human Rights Law Review 50. 84 The Obama Administration sought to end the regime. See Executive Order 13492 – Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and Closure of Detention Facilities (22 January 2009); Executive Order 13493 – Review of Detention Policy Options (22 January 2009). The policy of closure was blocked by Congress, beginning with the National Defense Authorization Act for Fiscal Year 2011, s 1032 (PL 11-383). 85 J Mueller and MG Stewart, Terror, Security, and Money: Balancing the Risks, Benefits, and Costs of Homeland Security (New York, Oxford University Press, 2011); J Mueller and MG Stewart, Chasing Ghosts: The Policing of Terrorism (Oxford, Oxford University Press, 2015); MG Stewart and J Mueller, Are We Safe Enough? Measuring and Assessing Aviation Security (Amsterdam, Elsevier, 2018). 86 Agamben (n 72) 50. 87 See G Jakobs and M Cancio Meliá, Criminal Law of the Enemy, 2nd edn (Madrid, Civitas, 2006); M Cancio Meliá and A Petzsche, ‘Terrorism as a Criminal Offence’ in A Masferrer and C Walker (eds),

Counter-Terrorism Laws and their Discontents  319 UK Foreign Secretary, David Miliband, declared, ‘We must respond to terrorism by championing the rule of law, not be subordinating it, for it is the cornerstone of the democratic society’.88 The trend towards constitutionalism demonstrates that its principles are becoming ‘not a mask but the true image of our nation’89 and offer protection from naked state power.90 The law thereby has demonstrated capacity to respond to executive claims even in circumstances of dire emergency and to impose ethical restraint and care.91 However, discontents remain, both collective and individual.

B.  Collective Discontents Amongst the collective discontents relating to counter-terrorism, just two instances which have arisen since 2/19 will be selected.92 They both reflect the analysis of David Cole that minority communities will perceive counter-terrorism to be aimed in their direction.93 One relates to special stop and search powers.94 These emerged with a whimper under the Terrorism Act 2000, section 44. There was little debate, and they were little used at first. Following their condemnation in Gillan and Quinton v United Kingdom,95 section 44 has been replaced in stages. The Macdonald Report considered that the total removal of a stop and search power could compromise security, and so recommended a power which was more limited by time and place.96 The Home Office Review 2011 argued for authorisation based on reasonable suspicion and a 14-day time limit.97 This cautious approach was implemented. Thus, the Terrorism Act 2000 (Remedial) Order 201198 and then the permanent Protection of Freedoms Act 2012, section 59, replaced section 44 and substituted section 47A and schedule 6B. The effect was transformational. Usage of section 44 reached Counter-Terrorism, Human Rights And the Rule Of Law: Crossing Legal Boundaries in Defence of the State (Cheltenham, Edward Elgar, 2013). 88 David Miliband, ‘“War on terror” was wrong’ The Guardian (15 January 2009). 89 M Ignatieff, The Lesser Evil (Edinburgh, Edinburgh University Press, 2005) 144. 90 Vaughan and Kilcommins (n 73) 13. 91 See C Campbell and I Connelly, ‘Making War on Terror? (2006) 69 Modern Law Review 935. 92 Apart from the two instances discussed here, other instances include the massive budgets allocated to counter-terrorism, which detract from spending on social projects (see Mueller and Stewart (n 85)), and shortcomings in accountability which undermine trust (see, eg, C Walker and S McKay, ‘Community Surveillance and Terrorism’ in J Pearse (ed), Investigating Terrorism: Current Political, Legal and Psychological Issues (Chichester, Wiley-Blackwell, 2015). 93 D Cole and JX Dempsey, Terrorism and the Constitution. Sacrificing Civil Liberties in the Name of National Security (New York, New Press, 2002). 94 See further, ch 11 (Lennon) in this collection. 95 App no 4158/05 (12 January 2010). 96 Review of Counter Terrorism and Security Powers (n 50) 4. 97 Review of Counter-Terrorism and Security Powers: Review Findings and Recommendations (n 49) paras 16, 18. 98 Terrorism Act 2000 (Remedial) Order 2011 SI 2011/631.

320  Clive Walker huge levels after 7/7 – 200,735 stops by the year ending 30 September 2009.99 By the year ending 30 September 2010, the total went down to 45,932, and thereafter – zero. Some stops and searches continue under section 43 on the basis of individualised reasonable suspicion but at a much lower level, and there are further powers under the Justice and Security (Northern Ireland) Act 2007, sections 21 and 24, which remain problematic.100 Subject to those qualifications, here is another triumph (albeit following initial failure) for Stance 4 which has been asserted with dramatic effect by the executive and legislature after the British judiciary in Gillan initially abnegated control over policing practices after 7/7.101 The possible assertion of constitutionalism is now being played out in connection with the Prevent programme – the second instance of collective discontent discussed here. There is not enough time to rehearse the travails of Prevent,102 save to say that it is widely criticised. Even the Mayor of Manchester, Andy Burnham, had (when previously Shadow Home Secretary) dismissed the whole policy as ‘so toxic now that I think it’s got to go’.103 UN Special Rapporteurs have likewise been highly critical,104 though other analysists present a more positive picture.105 A full review was delivered in the Home Office’s Prevent Strategy paper in 2011.106 The criticisms sustained were: uncertain boundaries with community integration; weak causal links between radicalisation and terrorism;107

99 Home Office, Operation of police powers under the Terrorism Act 2000 and subsequent legislation: Arrests, outcomes and stop & searches Quarterly update to September 2010 (04/11 (London, 2011) Table 2.2. See G Lennon, ‘Policing Terrorist Risk: Stop and Search under the Terrorism Act 2000, Section 44’ (PhD, University of Leeds, 2011) 207. 100 See PSNI, Stop and Search Statistics: Quarter 2 2017/18: 1 July–30 September 2017 (Belfast, PSNI, 2017). 101 The assessment of the Home Office is that the reforms have ‘worked well’: Memorandum to the Home Affairs Committee Post-Legislative Scrutiny of the Protection of Freedoms Act 2012 (Cm 9579, 2018) 45. 102 See Blackbourn and Walker (n 63). See further ch.4 (Greer) in this collection. 103 Frances Perraudin, ‘Andy Burnham calls for “toxic” Prevent strategy to be scrapped’ The Guardian (9 June 2016). ‘Toxic’ was also the verdict of the Home Affairs Committee, Radicalisation (2016–17 HC 135) para. 55. 104 See Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Fifth Annual Report (A/HRC/31/65, 2016); Special Rapporteur on the rights to freedom of peaceful assembly and of association, Report on his follow-up mission to the United Kingdom of Great Britain and Northern Ireland (A/HRC/35/28/Add. 1, 2017) 3 et seq. 105 See R Sutton, Myths and Misunderstandings (London, Henry Jackson Society, 2016); M Frampton et al, Unsettled Belonging (London, Policy Exchange, 2016); S Khan, The Battle for British Islam: Reclaiming Muslim Identity from Extremism (London, Saqi, 2016); Joint Committee on Human Rights, Counter Extremism (2016–17 HL 39, HC 105) and Government Response to the Committee’s Second Report of Session 2016–17 (HC 2016–17, 756). 106 Home Office, Prevent Strategy (Cm 8092, 2011). See also Lord Carlile, Report to the Home Secretary of Independent Oversight of Prevent Review and Strategy (London, Home Office, 2011). 107 See also N Bouhana and PO Wilkström, ‘Al Qa’ida Influenced Radicalisation’ (Occasional Paper 97, London, Home Office, 2011); T Munton et al, ‘Understanding vulnerability and resilience in individuals to the influence of Al Qa’ida violent extremism’ (Occasional Paper 98, London, Home Office, 2011).

Counter-Terrorism Laws and their Discontents  321 the employment of unreliable former extremists, the perception of spying on minority communities,108 and vague performance indicators. The spirals around its meaning, mission, delivery and measurement remain unresolved, including by the latest strategic review.109 Fortunately, a further mechanism consistent with Stance 4 has begun to take shape, namely, the Counter-Terrorism and Security Act 2015. In Chapter 1 of Part V, section 26 imposes on specified public authorities a general ‘Prevent’ duty, namely, to have due regard to the need to prevent people from being drawn into terrorism. Next, Chapter 2 of Part V deals with ‘Support etc for people vulnerable to being drawn into terrorism’, essentially a reference to the Channel programme of individual counselling for those deemed at risk. The 2015 Act could represent the start of a journey away from the policy spiral. For instance, the government subsequently issued multiple guidelines110 which will inevitably be tested and revised over time as to meaning, performance, accountability and oversight. This process began with audit reports111 and with the case of Butt.112 But communal discontents are deeply felt and will take time to allay, which will happen only when communities become involved in policy implementation.

C.  Individual Discontents As well as communal discontents, individual discontents should also be considered. The focus here will be the systemic link between counter-terrorism and miscarriages of justice, as recognised by Sir John May, who acutely observed that: If all the safeguards of [the Police and Criminal Evidence Act 1984] are necessary to avoid miscarriages of justice then it must be recognized that in terrorist cases greater risks of injustice are accepted than in the ordinary course of criminal cases.113

The sequel to that inquiry, the Royal Commission on Criminal Justice, said precious little about the Guildford Four, the Birmingham Six, or counter-terrorism laws.

108 See C Pantazis and S Pemberton, ‘From the “Old” to the “New” Suspect Communities’ (2009) 49 British Journal of Criminology 646; S Greer, ‘Anti-terrorist laws and the United Kingdom’s “Suspect Muslim Community”’ (2010) 50 British Journal of Criminology 1171; C Pantazis and S Pemberton, ‘Restating the Case for the “Suspect Community”’ (2011) 61 British Journal of Criminology 1054. 109 See HM Government, CONTEST: The United Kingdom’s Strategy for Countering Terrorism (Cm 9608, London, 2018) p.31. 110 See HM Government, Revised PREVENT Duty Guidance for England and Wales (2015), available at: www.gov.uk/government/publications/prevent-duty-guidance. 111 eg, see HEFCE, Implementation of the Prevent duty in the higher education sector in England: 2015–16 (London, HEFCE, 2017); J Busher et al, What the Prevent duty means for schools and colleges in England (Aziz Foundation, 2017). 112 Butt v Secretary of State for the Home Department [2017] EWHC 1930 (Admin). 113 Sir John May, Report of the Inquiry into the circumstances surrounding the convictions arising out of the bomb attacks in Guildford and Woolwich in 1974, Final Report (1993–94, HC 449) para 21.8.

322  Clive Walker Indeed, only now is an inquest under way into the Birmingham pub b ­ ombings, a belated recognition that criminal trials and commissions of inquiry have not yet provided an adequate explanation.114 Miscarriages of justice become an inherent risk in Stance 4 in two ways. One aspect is that models of executive orders, such as Terrorism Prevention and Investigation Measures (TPIMs), systemically impose lower levels of justice by design rather than by error. The encouraging news for Stance 4 is that these executive measures seem to be in decline. Not only has there been the rhetorical triumph of criminalisation, but also numbers have dropped markedly. Thus, there were 2,030 detentions without trial in the 1970s115 but just 17 between 2001 and 2005. Exclusion orders also affected 414 suspects in Britain between 1974 and 1997,116 but there were just 52 control orders from 2001 to 2005, and now just a handful of TPIMs. However, the wider picture also reveals 84 proscription orders, 20 UK autonomous sanctions listings and one Temporary Exclusion Order.117 The second aspect of linkage is that the priority for criminal prosecution comes at a price through substantive or processual compromises of justice.118 For instance, first, precursor offences might be so broad or so contrary to notions of the normal burden or standard of proof that they lack legitimacy. Secondly, the demand for public proof beyond doubt in a climate of precautionary and secretive risk management required by high levels of security could foster a slide towards lower process standards. Those tensions have arisen in Northern Ireland, where it became necessary to abolish trial by jury in terrorism cases after 1972.119 Changes have also been sustained in civil proceedings under the Justice and Security Act 2013 in order to convene ‘Closed Material Procedures’ when national security issues are at stake.120 At the same time, neither international nor national law rules out elasticity between the ‘normal’ and the ‘special’ in criminal justice, though subject to the ideals of human rights. Aside from changes by design, the other inherent dangers of miscarriage of justice in terrorism cases arise from the importance of obtaining results and the emotion of what or who is at stake. These factors generate the 114 See: justice4the21.co.uk. 115 See G Hogan and CP Walker, Political Violence and the Law in Ireland (Manchester, Manchester University Press, 1989) 93. 116 See Walker, ‘Constitutional Governance and Special Powers Against Terrorism’ (n 11). 117 See Terrorism Prevention and Investigation Measures (1 December 2016 to 28 February 2017): Written Statement 80WS (19 July 2017); Home Office, Proscribed Terrorist Organisations (London, 16 December 2016); Operation of the UK’s Counter-Terrorist Asset Freezing Regime (1 April 2017 to 30 June 2017): Written statement 286WS (29 November 2017); Peter Walker, ‘Rudd admits antiterror exclusion powers used only once since 2015’ The Guardian (29 May 2017). On exclusion orders, see further ch 9 (Blackbourn) in this collection. 118 See C McCartney and C Walker, ‘Enemies of the State and Miscarriages of Justice’ (2013) 32 Delhi Law Review 17. 119 See C Walker, Terrorism and the Law (Oxford, Oxford University Press, 2011) ch 11. 120 See A Tomkins, ‘Justice and Security in the United Kingdom’ (2014) 47 Israel Law Review 305; C Walker, ‘Living with National Security Disputes in Court Processes in England and Wales’ in G Martin et al (eds), Secrecy, Law and Society (Abingdon, Routledge, 2015).

Counter-Terrorism Laws and their Discontents  323 tendencies to overreact, overreach and over-convict in ‘State trials’.121 Hence, Lord Denning’s comment in response to the Guildford Four case was that even if the wrong people had been convicted, ‘the whole community would be satisfied’.122 The remedies against the generation of miscarriages of justice, especially in the context of state trials, must be manifold and relentless, if special care is to be taken under Stance 4. There are two fundamental considerations which will aid most legal systems to guard against miscarriages of justice: observance of ideals such as human rights; and explicit mechanisms which can provide for expert, non-political handling and review in cases of terrorism. Independent review has already been detailed; of further relevance here is the Criminal Cases Review Commission.123 As for handling, the Crown Prosecution Service (CPS) has made considerable strides. Since the beginning of 2005, the Counter Terrorism Division (CTD) has been responsible for terrorism cases,124 including advising the police during investigatory stages and then handling prosecutions.125 The CPS Special Crime and Counter Terrorism Division (SCCTD) was formed in 2011,126 merging the formerly separate Special Crime and Counter Terrorism Divisions with Counter Terrorism as one operational unit, to deal with all terrorism, war crimes and crimes against humanity, official secrets and incitement to hatred cases. The Counter Terrorism Division has been commended for its ­terrorism prosecution work. In 2016, 62 trials were completed; of these, 54 (87 per cent) led to a conviction.127 HM Crown Prosecution Inspectorate in 2009128 found ‘very good’ standards of case preparation and decision-making129 as well as practices around communications with victims and witnesses, post-trial case conferences, and the use of electronically presented evidence.130

121 See JI Ross, The Dynamics of Political Crime (Thousand Oaks, CA, Sage, 2003). 122 The Times (17 August 1990) 14. 123 Criminal Appeal Act 1995. See C Walker and C McCartney, ‘Criminal Justice and Miscarriages of Justice in England and Wales’ in CR Huff and M Killias (eds), Wrongful Conviction: International Perspectives on Miscarriages of Justice (Philadelphia, PA, Temple University Press, 2008); C McCartney and S Roberts, ‘Building Institutions to Address Miscarriages of Justice in England and Wales: “Mission Accomplished?”’ (2012) 80 University of Cincinnati Law Review 1333. See further ch.15 (Roberts) in this collection. 124 See S Hemming, ‘The Practical Application of Counter-terrorism Legislation in England and Wales’ (2010) 86 International Affairs 955. 125 See CPS, ‘Successful Prosecutions since the end of 2006’, available at: www. cps.gov.uk/ counter-terrorism-division-crown-prosecution-service-cps-successful-prosecutions-end-2006. 126 See CPS, ‘Special Crime and Counter Terrorism Division’, available at: www.cps.gov.uk/ special-crime-and-counter-terrorism-division-scctd. 127 Home Office, Operation of Police Powers Under the Terrorism Act 2000 and Subsequent Legislation: Arrests, Outcomes, and Stop and Search, Great Britain, Quarterly Update to December 2016, Statistical Bulletin 04/17 (London, 2017) para 1.2. 128 HM Crown Prosecution Inspectorate, Report of the Inspection of the Counter Terrorism Division of CPS Headquarters (HMCPSI, 2009). 129 ibid para 2.3. 130 See further, ibid, para 2.25.

324  Clive Walker Overall, there are dangerous commonalities between counter-terrorism and miscarriages of justice. But even the scoundrels of the terrorism world are entitled to justice, whether through the application of executive measures or criminalisation. While no ‘signal’ case of miscarriage of justice has occurred since 2/19, equivalent to the Birmingham Six,131 the generation of discontents has certainly persisted and has affected the legitimacy and effectiveness of counter-terrorism.

Conclusion The ghosts of the Diplock and Lloyd reports overshadow the new order of ­counter-terrorism laws embarked upon after 2/19. On balance, they are benign rather than malign spirits. They guide us towards relatively settled counter-­ terrorism laws which reflect the ideals of criminalisation and constitutionalism. Yet, these ideals of criminalisation and constitutionalism continue to face new challenges and to be imperfectly applied and thereby to generate discontents. Amongst the current challenges are the UK’s exit from Europe and the ­arrangements for future security cooperation and the Irish border. Proposals have  been made by the UK Prime Minister for a ‘deep and special partnership’ in security,132 but delivery is uncertain. More immediate threats were the four attacks in the first half of 2017, the most deadly since the 7/7 London transport bombings of July  2005. An audit of the internal reviews by the security agencies was undertaken by David Anderson QC, the former Independent Reviewer of Terrorism Legislation, in his report, Attacks in London and Manchester March–June 2017: independent assessment of MI5 and police internal reviews.133 Anderson’s summary analysis of these incidents unearthed no calamitous errors. The report reveals that most recent plots have been thwarted (22 since October 2013),134 and his overall verdict is that ‘The UK’s CT effort has been effective over the years’.135 Further wise words reflect that though ‘intelligence is always imperfect … not everything can be stopped … there is no cause for despair … and finally, even marginal improvements are capable of paying dividends’.136 In those circumstances, it is heartening that there were no dramatic declarations of emergency, emergency legislation, round-ups of suspects or closed borders.137 131 See ch 12 (Roach) in this collection. 132 ‘PM Speech at Munich Security Conference: 17 February 2018’, available at: www.gov.uk/ government/speeches/pm-speech-at-munich-security-conference-17-february-2018. 133 Anderson, Attacks in London and Manchester March–June 2017 (n 46). See also ch 6 (Anderson) in this collection. 134 See HC Deb 5 December 2017, vol 632, col 913 (Amber Rudd). 135 Anderson, Attacks in London and Manchester March–June 2017 (n 46) para 5.2. 136 ibid paras 5.22, 5.24, 5.26, 5.28. 137 Compare the reactions in France: B Boutin, ‘Administrative Measures in Counter-terrorism and the Protection of Human Rights’ (2016) 27 Security and Human Rights 128; G Keppel, Terror in France

Counter-Terrorism Laws and their Discontents  325 Max Hill QC, the current Independent Reviewer of Terrorism Legislation, has rightly warned against a rush towards extra criminal offences (such as the sole concrete proposal put forward by the Home Secretary, namely, repeatedly viewing websites).138 In consequence, there were more continuities than discontinuities in the counter-terrorism context and background in the distressing circumstances of 2017, and the focus has rightly remained on performance and resources.139 A comprehensive legislative code is already in place; it must be constantly evaluated and, if necessary, amended, but any rush to legislation in the emotion of a crisis must be resisted. In conclusion, the generation after Diplock and Lloyd must continue to live with counter-terrorism laws and their discontents. There seems to be no escape, especially as heads of state envisage a generational struggle against terrorism and its proponents.140 But we may not be doomed to futile efforts and responses if Stance 4 remains our chosen path.

(Princeton, NJ, Princeton University Press, 2017); Amnesty International, Dangerously Disproportionate (London, 2017). 138 M Hill, ‘Responding to Terrorists’ Use of Social Media: Legislation, Investigation and Prosecution’, available at: terrorismlegislationreviewer.independent.gov.uk/responding-to-terrorists-use-of-socialmedia-legislation-investigation-and-prosecution. 139 See Anderson, Attacks in London and Manchester March–June 2017 (n 46) fn 54. See also Vikram Dodd, ‘Don’t cut police anti-terror budget as threat grows, warns top officer’ The Guardian (22 September 2017). From 2016 to 2020, CT policing was to be reduced by 7.2% within an overall increase of 30% for CT, although that reduction has since been offset by £24 million and £50 million grants in September and December 2017. 140 HC Deb 21 January 2013, vol 557, col 27 (David Cameron) (‘we are in the midst of a generational struggle against an ideology which is an extreme distortion of the Islamic faith, and which holds that mass murder and terror are not only acceptable but necessary’); White House, ‘Remarks by the President on Progress in the Fight Against ISIL’, 6 July 2015, available at: obamawhitehouse.archives. gov/the-press-office/2015/07/06/remarks-president-progress-fight-against-isil (‘this larger battle for hearts and minds is going to be a generational struggle’).

326 

INDEX accountability, 3 Australia, 70 all-risks policing, 3, 4 France, 183 UK, 178 US, 179–80 formal accountability mechanisms, 55 security services (UK), 18–20 accountability mechanisms, 19–20 all-risks policing, 178 assessment of internal review process, 96–97 constitutional governance, 2–3, 18–21 Investigatory Powers Commissioners Office, 18 unlawful activities, 19–20 use of drones, 21 adversarial system: equality of arms, 217, 225 examination of scientific evidence, 239–40 right to a fair trial, 212 special advocates, 3–4, 100–2, 105, 111–14, 215, 217, 225 all-risks policing, 3, 4 consequences, 168 containment and control of, 171–75, 183–84 effectiveness, 169–70 France, 181 infringement of constitutional rights, 182–83 lack of accountability, 183 Gillan v United Kingdom, 172–75 human rights, impact on, 169 increased false positives, 169 increased securitisation, 169 neighbour terrorism, 167–68 rural/urban divide, 169 stop and search powers: discriminatory nature of, 170 UK, 176, 178–79 accountability requirements, 178 linkage to vulnerable targets, 176–77 statutory powers, 177 universal v refined approach, 169

US: fragmented nature of powers, 179 lack of judicial containment, 180–81 lack of transparency, 179–80 amicus curiae, 111 Anti-terrorism, Crime and Security Act 2001 (UK): indefinite detention, 56, 139–40, 143–44, 145–46, 148–49 Independent Reviewers of Terrorism Legislation review, 83 origins, 139 withholding information, 40 apology, see glorification or apology of terrorism appeal processes, 249–50, 266–67 Court of Appeal, 250 criticisms of, 251, 253–54 due process appeals, 253, 257, 259 factual innocence appeals, 252–53, 257–58, 259 fresh evidence appeals, 258–59 problems identified, 242 procedural irregularities, finding of, 253, 257 role, 251, 254–55 Criminal Cases Review Commission, 250 criticisms of, 264 establishment, 259 evaluation of performance, 261–66 innocence, lack of focus on, 264 powers, 260–61 referral rate, 262–63 success rate, 263–64 workload and budget, 261–62 due process appeals, 253, 257, 259 factual innocence appeals, 252–53, 257–58, 259 fairness concept, 255–56 technical unfairness, 256–57 ‘unfair to try’ v ‘fair to try but unfair trial’, 256 fresh evidence appeals, 258–59 levels of appeal, 272

328  Index Special Immigration Appeals Act 1997 (UK), 102–3 Special Immigration Appeals Commission (UK), 60, 100–1 asset-freezing, 23–24, 84, 86, 315 Australia, 3, 63–66, 79–80 accountability, growing focus on, 70 balancing security and rights, 74, 78–79 alerting others involved in terrorism, 68 control order powers, 69 Council of Australia Governments Counter Terrorism Review, 70–71 counter terrorism strategy, phases of: foreign fighters, 72–73 pre-foreign fighters, 70–71 responses to 7/7, 68–70 responses to 9/11, 66–68 effectiveness of counter-terrorism strategy, 76–78 community-based responses, 77–78 control orders, 77 home-grown terrorists, 76 legal responses, 76–77 prosecution not a deterrent, 76–77 foreign fighters: control orders, 72 declared area offence, 72 lack of scrutiny of legislation, 72 mandatory data retention, 73 Independent National Security Legislation Monitor, 70–71 National Action Plan, 69–70 national counter-terrorism measures, 67 pre-foreign fighters, 70–71 Preventative Detention Order regime, 69 questioning and detention warrants, 67–68 rationality of counter-terrorism strategy: hurried law-making, 74–76 lack of balance of security and rights, 74 lack of relevance to current threats, 74–75 refusal to answer questions, 68 response to 7/7, 68–70 response to 9/11, 66–68 reviews of counter-terrorism measures, 70–71 special advocates, 113 strategy to identify causes of terrorism, 71 UK measures compared, 68 balancing security and rights, 65–66 Australia, 74, 78–79 France, 182

Guantanamo Bay detainees, 4, 127–33 international human rights law, 104–5 special advocates, 103–4, 129 see also exceptional and military courts; special advocates behavioural assessment programmes, 171 Belmarsh litigation, 56, 192, 200 bias of forensic/scientific experts, 236–37 Birmingham Six, 61, 136, 187–88, 197, 200–1, 250, 266–67, 288, 293, 314, 321–22, 324 compensation, 269, 271, 273 Brexit, 324–25 bulk powers: controversy surrounding, 95–96 Independent Reviewer of Terrorism Legislation review, 95–96, 98 recommendations, 96 burden of proof: compensation and, 270, 271–72, 275 criminal trials, 271–72 obtaining evidence, 22 presumption of innocence and, 245 Canada: appeals: potential for a CCRC-type review body, 6, 299–300 breadth of terrorism offences, 196–97 fault, 196 entrapment, 197 flawed forensic science, 301 indefinite immigration detention, 200–1 Maher Arar case, 203–5, 206–7 Omar Khadr case, 204–5, 206–7 potential for a CCRC-type review body, 299–300 Security Intelligence Review Committee, 111 special advocates: access to intelligence files, 106–7 adequate substitute for personal participation, as, 114 amicus curiae, 111 closed proceedings, 102–3, 105 communications, 108–9 citizenship removal, 2 Australia: dual nationals, 73 constitutions, lack of reference in, 16 Independent Reviewer of Terrorism Legislation review, 3, 88–89, 98

Index  329 UK, 84 Special Immigration Appeals Commission, 60 civil liberties and human rights compared, 55–57 closed hearings, 20, 322 Canada, 102 Diplock courts, 53, 60 consequences, 60 European Court of Human Rights challenges, 103–4, 113 Jihidi-based terrorism, 60–61 New Zealand, 110 special advocates, 148 arguments for greater disclosure, 106 concerns expressed by, 91 inadequate protection of open and natural justice, 112 justification for, 114–15 lawyer-client relationship, 101–2, 102–4, 105, 110–11 Special Immigration Appeals Commission, 100–1 European Court of Human Rights challenges, 103–4 US, 108–9 see also special advocates communication and its importance to terrorism and terrorists, 151–52 radicalisation and, 152 see also speech offences communications restrictions, 107–8 Canada, 108–9 special advocates, 107–8 compensation for miscarriages of justice, 5–6, 269–70 Anti-social Behaviour, Crime and Policing Act 2014 (UK), 270–71 Birmingham Six, 269, 271, 273 burden of proof, 270, 271–72, 275 proving innocence of a crime, 278–79 Criminal Justice Act 1988 (UK), 275, 276, 277–78 eligibility, 270–73 ‘deserving’ applicants, 283 judicial erosion of entitlement, 276–68 parliamentary restrictions on eligibility, 278–79 ex gratia payments: abolition, 270, 282 International Covenant on Civil and Political Rights, 275

judicial erosion of entitlement, 276–68 Justice in Error, 269, 284 new rules, 284 non-disclosure of evidence and, 286 parliamentary restrictions on eligibility: curtailment of presumption of innocence, 278–79 presumption of innocence and, 278–79, 283–84 public opinion, 274 purpose, 273–74 restrictions, 270–71 statutory obligation: international law, 275 lack of, 274–75 UK law, 275 see also presumption of innocence Confait affair, 287–88 confidentiality rings: public interest immunity, as an alternative to, 220–21 constitutional measures to reduce terrorism: access to justice, 16 electoral provisions, 17 equality measures, 16 nationality/citizenship measures, 16–17 socio-economic measures, 15–16 contamination of evidence, 234–35, 241 CONTEST, 69, 167 4-Ps approach, 53–54 ‘Protect’ element, 57 ‘Prevent’ element, 57–60 post-9/11 measures, 53–54 see also Prevent strategy control orders, 77 alternatives to criminal prosecutions, 195, 199 Australia, 64–65, 69, 74 Independent National Security Legislation Monitor, 71, 77 minors, control orders issued against, 73 sunset clauses, 72 UK, 57, 143, 146, 148, 313–14, 322 Prevent strategy, 58 Prevention of Terrorism Act 2005 (UK), 148–49 replacement with Terrorism Prevention and Investigation Measures, 90, 140 correction of miscarriages of justice, see Court of Appeal; Criminal Cases Review Commission; miscarriages of justice

330  Index Council of Australia Governments Counter Terrorism Review (Aus), 70–71 Counter-Terrorism and Security Act 2015 (UK): exclusion policies, 141–42 seizure of travel documents, 58, 83 Court of Appeal (criminal division), 5, 250 criticisms of, 251, 253–54 due process appeals, 253, 257, 259 due process, 5, 253, 257, 259 factual innocence appeals, 252–53, 257–58, 259 fresh evidence appeals, 258–59 innocence, proof of, 5, 252–53, 257–58, 259, 297–98 problems identified, 242 procedural irregularities, finding of, 253, 257 role, 251, 254–55 ‘safety test’, 5 Criminal Appeal Act 1995 (UK), 250, 281 compensation for miscarriages of justice, 281 establishment of Criminal Cases Review Commission, 259, 281, 288 fairness, 254–55 obtaining documents from public authorities, 260–61 Criminal Cases Review Commission (UK), 5, 250 Canada: potential for a CCRC-type review body, 299–300 creation, 187, 259, 269–70, 288 criticisms of, 264 evaluation of performance, 265–66 innocence, lack of focus on, 264 referral rate, 262–63 success rate, 263–64 workload and budget, 261–62 innocence, lack of focus on, 264 innocence projects compared, 296–99 powers, 260–61 see also review commissions Criminal Justice Act 1988 (UK): compensation for miscarriages of justice, 275 judicial erosion of entitlement, 276–78 parliamentary restrictions to, 278–79 Criminal Procedure Rules: case management, 281 public interest immunity applications, 221–22 regulation of forensic science, 241

Crown Prosecution Service, 269–70 disclosure of information, 106 Disclosure Manual, 224 identification of public interests, 222–23 Special Crime and Counter Terrorism Division, 323 data retention: DNA retention policies, 244–45 European Court of Human Rights, 175 European Union, 92 statutory retention of metadata: Australia, 73, 74–75 declared area offence, 72, 78 defence lawyers: exceptional and military courts, 124–25 Guantanamo Bay military proceedings challenges to legal system, 129–30 client-attorney privilege, 130 conflicting demands on loyalty of lawyers, 128–29 exposing short-comings of the justice system, 131–32 illegality of, 131–32 legitimacy of trials, 131 opposition, 127–28 role, 127 Guantanamo Bay military proceedings, 127–32 see also special advocates Défenseur des Droits (F), 81 definitions of crime, 28–29 definitions of extremism, 147 definitions of miscarriages of justice, 5–6, 188–89, 289–91 rights-based miscarriages of justice, 4–5, 190–93, 289–90 definitions of terrorism, 3, 9–10 Prevention of Terrorism (Temporary Provisions) Act 1974 (UK): modes of behaviour, 33 ‘violence for political ends’, 32 Terrorism Act 2000 (UK), 36, 50, 67 definitions of terrorism-related activities, 147 deportation with assurances, 139, 141, 144–45, 146, 150 Independent Reviewer of Terrorism Legislation, 87–88 derogations from ordinary law, 27–28, 31, 33, 44, 122–23 derogation in times of emergency, 56–57, 313 full disclosure, derogation from, 219–20

Index  331 detention without trial, 318–19, 322 Civil Authorities (Special Powers) Act (Northern Ireland) 1922, 52–53 constitutional limits to, 24 European Court on Human Rights, 56–57 see also indeterminate detention Diplock courts, 53, 60 consequences, 60 normalisation, 100, 324–25 Northern Ireland (Emergency Provisions) Acts, 54–55 see also closed hearings disclosure: Attorney General’s Guidelines on Disclosure, 222 compensation for miscarriages of justice due to non-disclosure of evidence, 286 Criminal Procedure Rules, 221–22 disclosure exercise, 209 domestic law (UK), 218 European Court of Human Rights jurisprudence, 219–20 judges, role of, 218–20 Judicial Protocol on the Disclosure of Unused Material in Criminal Cases, 222 lack of, 198 national security cases, 224 non-disclosure of forensic/scientific evidence, 237–38 compensation for miscarriages of justice, 286 see also public interest immunity doctrine drones, use in counter-terrorism operations: collateral damage, 201–2 lack of accountability mechanism, 21 threat to constitutionalism, 20–21 due process, 4 appeals 5, 253, 257, 259 emergency powers and due process rights, 122–23 forensic malpractice and fraud, 245 Guantanamo Bay violations, 117–18 ‘hard’ due process norms, 120 scope of norms, 121 special advocates and, 103–4 violations, 117–18 abuse of right of access to counsel, 119 see also defence lawyers

emergency powers: Art. 15 European Convention on Human Rights, 56–57 declarations of emergency in the UK, 12 due process rights and, 122–23 rights protections, impact on, 122 when applicable, 121 encouragement of terrorism offence: Terrorism Act 2000 (UK), 39–40 entrapment defence, 197–98 equality of arms: absence of special counsel, 215 disclosure of forensic evidence, 237–38 European Convention on Human Rights, 212 hearings without notice, 217 public interest immunity applications, 212, 215, 217 European Convention on Human Rights, 12, 14 defence of self-defence, 23 derogation in time of emergency (Art. 15), 56–57 detention pending deportation, 102–3, 146 equality of arms, 212 freedom of expression, 155 prohibition of discrimination, 170 prohibition of torture, 139–41 public interest immunity doctrine right to a fair trial, 212, 218, 225 right to a private life, 169, 172–73 shoot-to-kill policies, 59 see also European Court of Human Rights European Court of Human Rights, 12, 14 closed hearings, 103–4, 113 data retention, 175 deportations, 87 UK’s deportations with assurances policy, 88 disclosure, 219–20 Gillan v United Kingdom, 172–75 normalisation of counter-terrorism measures, 315–16 right to a fair trial and public interest immunity doctrine: Edwards and Lewis v UK, 215–17 Edwards v UK, 213 Jasper v Fitt, 214–15 Rowe and Davis v UK, 213–14 special advocates, 102–3 see also European Convention on Human RIghts

332  Index European Union: constitutional governance of counterterrorism measures: European Convention on Human Rights, 12, 14 general principles of EU law, 12 data retention, 92 regulation of forensic science, 242 speech offences, 152–53 exceptional and military courts, 123–24 defence lawyers, role of, 124–25 independent representation, importance of, 124–25 judicial composition, 125–26 special rules of evidence, 126 see also special advocates exceptional measures: dangers of exceptional measures for terrorist activities, 30–31 normalisation of, 99–100, 309–11, 315–16, 324–25 exclusion: Anti-terrorism, Crime and Security Act 2001 (UK), 139–40 control orders, 140–41 exclusion orders, see exclusion orders legal obligations regarding, 135–36 Prevention of Terrorism Act 2005, 140 Terrorism Prevention and Investigation Measures, 140–42 see also exclusion policies exclusion orders, 136 appeal, 136–37 extension of powers, 137 reform, 137–38 Temporary Exclusion Orders, 83, 139, 142, 322 exclusion policies, 4, 135–36 Anti-terrorism, Crime and Security Act 2001 (UK), 139–40 control orders: Australia, 69 Prevent strategy, 58 replacement with Terrorism Prevention and Investigation Measures, 140–41 UK, 58, 140 Counter-Terrorism and Security Act 2015 (UK), 141–42 criticisms of: difficulties challenging exclusion, 147–48 displacing the threat, 143–45

exclusion not used as last resort, 145–46 failure to prevent terrorism, 142–43 misuse against terrorisms, 146–47 exclusion orders (UK), 136 appeal, 136–37 extension of powers, 137 reform, 137–38 government enthusiasm, 148–50 indefinite detention in lieu of deportation, 139–40 legislative powers, 139–41 non-legislative policies: deportation with assurances, 141 Prevention of Terrorism Act 2005, 140 relocation powers, 139 Temporary Exclusion Orders, 83, 139, 142, 322 Terrorism Prevention and Investigation Measures Act 2011 (UK), 141 factual innocence, 188–90, 194–95, 206–7, 228 appeals, 265 compensation for, 277, 284 Innocence Projects, 202–3, 294–95, 297 targeted assassinations and, 202–3 false positives, 199 all-risks policing, 169 miscarriages of justice, 188, 194, 195, 206–7 suppression by democracies, 207 targeted assassinations and, 201–2 financial support offences: Terrorism Act 2000 (UK), 38 foreign fighters (Australia), 63 control orders, 72 declared area offence, 72 lack of scrutiny of legislation, 72 mandatory data retention, 73 foreign terrorist fighters (UK), 135 Temporary Exclusion Orders, 138–39, 144–45 FTF, see foreign terrorist fighters forensic science, 5 admissibility of forensic evidence: Criminal Practice Directions, 239 Daubert test (US), 239 judges’ ability to interpret and apply, 239–40 contradictory nature, 228–30 challenges: ear-prints, 232–33 fingerprints, 232–33

Index  333 criticisms: general controversy about value and accuracy of forensic science, 242–43 House of Commons Science and Technology Committee, 238–39 Royal Commission on Criminal Justice, 238 US National Research Council, 239 US President’s Council on Advisors on Science and Technology, 239 definition, 228–29 forensic failures: cognitive bias, 236–37 contamination of evidence, 235 fraud and malpractice, 234–35, 300–3 non-disclosure of evidence, 237–38 forensic fraud, 233 accredited laboratories, 233–34 experts misleading the court, 234, 300–3 iatrogenesis, 230–32, 238 investment failures, 243–44 miscarriages of justice and, 227–28, 231–32, 244–45 due process abuses, 245 gathering and retention of data, 245 recommendations to eliminate, 238–39 misplaced faith, 227–28, 246–47 regulation: European Union, 242 Forensic Science Regulator, 241 National Commission for Forensic Science (US), 241 UK, 241 US, 241 US Innocence Project, 231 France: all-risks policing, 181 infringement of constitutional rights, 182–83 lack of accountability, 183 constitutional measures: emergency powers, 12–13 ‘ordinary law’ measures, 13 fraud or malpractice by forensic/scientific experts, 233–35, 300–1 Canada, 301–2 UK, 302–3 freedom of association: special offences, impact of, 43–44 freedom of expression, 165 special offences, impact of, 43–44 see also speech offences

Geneva Convention III concerning Prisoners of War, 121 Geneva Conventions on the Laws of War, 11, 128 Germany, 4 speech offences, 154 material support, providing, 156–58 preparation of terrorist acts, 158–59 terrorist speech v speaking of terrorism, 164–65 globalisation of terrorism, 24–25 glorification or apology of terrorism, 4, 155, 156, 161–62 Guantanamo Bay, 4, 11 defence lawyers, 127–32 due process violations, 117–18, 119, 189, 204, 206–7 military proceedings, 127–32 challenges to legal system, 129–30 client-attorney privilege, 130 conflicting demands on loyalty of lawyers, 128–29 exposing short-comings of the justice system, 131–32 illegality of, 131–32 legitimacy of trials, 131 opposition, 127–28 security-cleared lawyers, 105–6, 108–10 Guildford Four, 61, 187–88, 197, 200–1, 250, 266–67, 321–22, 323 compensation, 269, 271, 273 Human Rights Act 1998 (UK), 12, 50 accountability mechanisms, 61–62 control orders, 140 fairness test, 255 importance of, 55–56 human rights obligations, 24–26 all-risks policing, impact of, 169 civil liberties compared, 55–57 European Court of Human Rights, 12, 14 accommodating dubious tactics, 22–23 international humanitarian law, 2, 22 European Court of Human Rights, 12, 14, 22–23 national constitutions, 23–24 sunset clauses, 13 see also European Convention on Human Rights; European Court of Human Rights; Human Rights Act

334  Index indefinite detention, 54, 56 Anti-terrorism, Crime and Security Act, 139–40, 143–44, 145–46, 148–49 application to foreign nationals, 143 Belmarsh litigation, 200 Canada, 200–1, 207 due process challenges, 200–1 European Convention on Human Rights, 146 exceptional courts, 126 Guantanamo Bay, 132 in lieu of deportation, 139–40, 146 Special Immigration Appeals Commission proceedings, 103–4 Terrorism Act 2000 (UK), 113 Terrorism Prevention and Investigation Measures, 322 US, 132, 202, 204 see also detention without trial Independent National Security Legislation Monitor (Aus), 70–71, 77, 81 Independent Reviewer of Terrorism Legislation (UK), 81–83 annual reviews: counter-extremism, 85–86 Prevent strategy, 86–87 new powers and functioning: increased budget, 84–85 increased scope of powers, 83 Privacy and Civil Liberties Board, 85 removal of mandatory annual reports, 83–84 one-off reviews: A Question of Trust, 91–95 bulk powers review, 95–96 citizenship removal, 88–89 deportation with assurances, 87–88 investigatory powers, 91–96 Terrorism Prevention and Investigation Measures classified report, 89–91 innocence movement, 291–93 see also innocence projects innocence projects, 6, 303–4 Centurion Ministries, 293 Criminal Cases Review Commission compared, 296–99 factual innocence, 202–3, 289–90 Innocence Network UK, 294–95 innocence, proving, 297–98 JUSTICE, 293 MOJO, 293 UK, 294–95 US, 293–94

inquisitorial system: special advocates, 111 International Covenant on Civil and Political Rights: application of military justice to civilians, 121 compensation for miscarriages of justice, 275 international humanitarian law, 2, 21 due process protections, 120–21 see also human rights obligations internment without trial, see detention without trial Investigatory Powers Act 2016 (UK), 20, 94–95 Investigatory Powers Commissioner’s Office (UK), 18, 20, 96 Ireland, Republic of, 31 constitutional measures, 12–13 ‘ordinary law’ measures, 12–13 withholding information provisions, 35 Jihadi-based terrorism: historical context, 47–50 ideology, 51 informal organisation, 51–52 Troubles-based terrorism compared and distinguished, 50–52, 61–62 weaponization of suicide, 51 law reform proposals: building on previous law and litigation, 308–9 concerns regarding normalisation of exceptional national security powers, 309–10 safeguards, 309 leaving law as it stands, 307 ‘no emergency, no emergency laws’, 308 steady dismantling of special laws, 308 legal/constitutional/bureaucratic frameworks, 2 accountability, formal mechanisms of, 55 civil liberties v human rights, 55–57 post-Human Rights Act, 56–57 pre-Human Rights Act, 54–56 proposed reforms, 6, 307–10 see also individual laws Lloyd report, 307, 324–25 material support, acts of, 4, 156–58 membership of proscribed organisations: Prevention of Terrorism (Temporary Provisions) Act 1974 (UK), 32–34, 54, 137 Terrorism Act 2000 (UK), 37–38, 67

Index  335 miscarriages of justice: Canada, 196–97 Maher Arar case, 203–5, 206–7 Omar Khadr case, 204–5, 206–7 criminal terrorism convictions, 195, 198–99 breadth of definition of terrorism, 195–97, 205–6 Canada, 196–97 entrapment defence, 197–98 guilty plea wrongful convictions, 198 lack of disclosure, 198 offences applying to conduct, 196 procedural concerns, 197–98 UK, 195–96 definitions, 4, 188–89 rights-based miscarriages of justice, 5, 190–93, 289–90 disclosure issues, 209–10 narrow definitions, 193–94 non-criminal counter-terrorism interventions, 189, 199–200 indefinite detention, 200–1 targeted killing, 201–3 psychological damage, 274 public concern, 269–70 research into, 287–88 rights-based miscarriages of justice, 5, 190–91, 199–200 broad definition, as a, 190–93, 205–6 application to counter-terrorism, 193 convictions and treatments without ‘factual justification’ 192 criticisms, 191 innocence, 192 rights of victims of crime, 192–93 see also appeal processes; compensation for miscarriages of justice monitoring of human rights, 3, 22–24 see also human rights obligations national security, see closed hearings; special advocates New Zealand: closed hearings, 110 security-cleared lawyers, 110, 112–13 normalisation of counter-terrorism measures, 99–100, 310–11 concerns, 309–10, 317–18 increased criminalisation, 322 linking counter-terrorism and miscarriages of justice, 321–23 overuse and exaggeration, 318–19

Prevent strategy, 320–21 special stop and search powers, 319 substantive and processual compromises of justice, 322 Diplock courts, 100 executive measures: increased powers of police forces and intelligence agencies, 310–11 Independent Reviewer of Terrorism Legislation, 312–13 normalisation within government departments, 311 UK National Security Strategy, 310 human rights: need to recognise obligations, 322–23 independent review procedures, need for, 323 judicial assertiveness, 316–17 legislative measures: asset-freezing, 315 control orders, 313–14 European Court of Human Rights, challenges in, 315–16 failure of political constitutionalism, 314–15 panic law-making, 313–14 Prevention of Terrorism Act 2005 (UK), 313 Terrorism Prevention and Investigation Measures Act 2011 (UK), 314 Northern Ireland, 3 Civil Authorities (Special Powers) Act (Northern Ireland) 1922, 52–53 Troubles-based terrorism: formal organisation, 51–52 historical context, 46–47 ideology, 51 legislative counter-measures, 52–53 Northern Ireland (Emergency Provisions) Acts, 54–55 offences (UK), 43–44 criminalisation of terrorist activity: Jihadi-based terrorism, 60–61 Troubles-based terrorism, 60 Prevention of Terrorism (Temporary Provisions) Act 1974 (UK), 31–32 failure to disclose information about acts of terrorism, 34–35 membership of proscribed organisations, 32–34

336  Index Northern Ireland, 31–32 support offences, 33–34 Terrorism Act 2000 (UK), 35–36 definitions of terrorism, 36 encouragement of terrorism, 39–40 failure to disclose information about acts of terrorism, 40 financial support offences, 38 membership of proscribed organisations, 37–38 precursor/preparatory offences, 40–43 ordinary criminal law measures, 12–13 arguments for ordinary measures for terrorist activities, 30–31 derogations for terrorist offences, 27–28 see also derogations from ordinary law; offences Police and Criminal Evidence Act 1984 (UK), 269–70, 285, 287–88 precursor/preparatory offences: evidential burden, 41 potential to suppress lawful protest, 42 Terrorism Act 2000 (UK), 40–43 preparatory acts of terrorism, 153, 156 communication, 158–60 presumption of innocence, 30, 120 compensation for miscarriages of justice and, 277, 279–80, 283–84, 286 curtailment of, 278–79 declared area offence and, 78 European Convention on Human Rights, 283–84 failures in criminal justice system, 279–80 increasing punitive policies, 280 Criminal Appeal Act 1995 (UK), 281 Criminal Justice and Public Order Act 1997 (UK), 280–81 Criminal Procedure Rules, 281 proviso test, 281–82 inversion of, 245 speech and communication offences, 160 Prevent strategy, 53–54 agent-specific prevention: control order, 58 deradicalization strategies, 59–60 exclusion of individuals, 58 targeted assassinations, 58–59 travel bans, 58 general prevention, 57–58 Independent Reviewer of Terrorism Legislation review, 86–87

Prevention of Terrorism Act 2005 (UK), 313 control orders, 140, 148–49 relocation of terrorist suspects, 139, 142 see also CONTEST Prevention of Terrorism (Temporary Provisions) Act 1974 (UK), 31–32, 54, 187, 314 exclusion measures, 136–37, 142–43, 146–47 failure to disclose information about acts of terrorism, 34–35 membership of proscribed organisations, 32–34, 54, 137 modes of behaviour, 33 Northern Ireland, 31–32 support offences, 33–34 ‘violence for political ends’, 32 withholding information about acts of terrorism, 34–35 prevention of terrorism offences (UK): failure to disclose information about acts of terrorism, 34–35 legal history: Northern Ireland, 31–32 Prevention of Terrorism (Temporary Provisions) Act 1974 (UK), 31–32 membership of proscribed organisations, 32–34 support offences, 33–34 principle of legal certainty, 29–31 excessive criminal sanctions, 29–30 lack of clarity on definition of ‘crime’, 28–29 undermining of, 29–30 Privacy and Civil Liberties Board (UK), 85, 312 Privacy and Civil Liberties Oversight Board (US), 81 public interest immunity doctrine, 5, 209–10 challenges, 224–25 codification, 211 confidentiality rings, 220–21 Criminal Procedure and Investigations Act 1996 (UK), 211–12 Criminal Procedure Rules, 221–22 Crown Prosecution Service, 222–23 European Convention on Human Rights: right to a fair trial, 212, 218, 225 European Court of Human Rights, 225 Edwards and Lewis v UK, 215–17 Edwards v UK, 213

Index  337 Jasper v Fitt, 214–15 Rowe and Davis v UK, 213–14 inequality of arms, 217 judges, role of, 218–20 national security cases, 224 origins, 210–11 surveillance cases, 217 types of PII procedure, 211 types of public interest, 222–23 see also disclosure Question of Trust, A: Independent Reviewer of Terrorism Legislation review of investigatory powers, 91–95 Investigatory Powers Act 2016 (UK), 94–95 review commissions: Canada, 6, 299–300 UK, see Criminal Cases Review Commission right of access to counsel, 3, 133 erosion of, 117–19 Guantanamo Bay case study, 127–32 international standards, 120–21 military courts, 121–23 reasons for resorting to exceptional/military courts, 123–27 violations, 119 see also special advocates right to a fair trial, 212, 218, 225 public interest immunity doctrine and: Edwards and Lewis v UK, 215–17 Edwards v UK, 213 Jasper v Fitt, 214–15 Rowe and Davis v UK, 213–14 rights-based miscarriages of justice, 5, 199–200 application to counter-terrorism, 193 broad definition, as a, 190–93, 205–6 convictions and treatments without ‘factual justification’ 192 criticisms, 191 definitions, 4–5, 289–90 innocence, 192 rights of victims of crime, 192–93 Royal Commission on Criminal Justice, 269, 279–80, 292, 321–22 establishment of Criminal Cases Review Commission, 250, 259, 266–67 factual error appeals, 257–59

rule of law, 28–29, 117–18 broadness of definition of terrorism, 36 exceptional and military courts, see exceptional and military courts expansion of scope of offences: encouragement offences, 39 financial support offences, 38 membership and related offences, 39–40 withholding information, 40 Guantanamo Bay case study, see Guantanamo Bay international standards, 120–21 precursor offences and, 40–43 principle of legal certainty, 29–31 proscription of groups and organisations, 37–38 Runciman Commission, see Royal Commission on Criminal Justice security-cleared lawyers: advantages to the use of, 113 amicus curiae, 111 challenges to the use of: contrary to open and natural justice, 111–12 subversion of adversarial litigation, 112 UK, 108 confidentiality undertakings, 109–11 Guantanamo Bay detainees, 109 New Zealand model, 110 see also special advocates security services, accountability of: assessment of internal review process, 96–97 recommendations, 97 constitutional governance, 2–3, 18–21 South Africa, 20 UK reforms: accountability mechanisms, 19–20 Investigatory Powers Commissioners Office, 18 unlawful activities, 19–20 Spain, 4 constitutional measures, 12–13 ‘ordinary law’ measures, 12–13 speech offences, 154 glorification/apology of terrorism, 161–62 material support, providing, 158 preparation of terrorist acts, 160 terrorist speech v speaking of terrorism, 164–65

338  Index special advocates, 3–4, 60, 100–2 best practice, 104–6 communications, 107–9 disclosure of intelligence files, 106–7 consideration of grievances raised by, 91 due process and, 103–4 mitigation against unfairness, 148 origins, 102 Chahal case, 102–3 European Court of Human Rights, 102–3 public interest immunity and, 219 right to a fair trial, 213–14 Special Immigration Appeals Commission (UK) appeals process, 60, 100–1 closed hearings, 103 special advocates, 102–3, 106 speech offences: concerns: passive acts of communication/receiving information, 162–63 risk of criminalising opinion, 163–64 European Union, 152–53 freedom of expression, conflict with, 153, 154–55 Germany, 154, 156–59 glorification/apology of terrorism, 156, 161–62 material support, providing, 155–58 preparation of terrorist acts, 156, 158–60 preventative nature of criminalisation, 153 Spain, 154, 158, 160–62 terrorist speech v speaking of terrorism, 153, 164–65 UK, 159–61 statelessness, see citizenship removal stop and search powers: discriminatory nature of, 170, 177, 319–20 European Court of Human Rights, 172–73, 175 Gillan v United Kingdom, 172–75, 316 reduction in use of powers, 178, 319–20 repeal of no-suspicion stop and search power, 86 see also all-risks policing suicide bombers, see weaponization of suicide support offences, 33–34 financial support offences, 38 Germany, 156–58

Prevention of Terrorism (Temporary Provisions) Act 1974 (UK), 33–34 Spain, 158 speech offences, 155–58 Terrorism Act 2000 (UK), 38 targeted assassinations: collateral damages, 201–2 drones, 201–3 factual innocence, 202–3 false positives, 201–2 Prevent strategy: agent-specific prevention, 58–59 technological advances: challenges for authorities from, 52, 93, 96, 152 DNA technology, 287, 291–92 intelligence gathering, 54 Technology Advisory Panel, 96 recommendations specific to forensic science, 238–39 technology aiding crime, 52, 152 see also forensic science Temporary Exclusion Orders, 83, 139, 142, 322 Terrorism Act 2000 (UK), 32, 50, 53 all-risks policing, 176, 178–79 accountability requirements, 178 linkage to vulnerable targets, 176–77 non-border powers (s. 44), 170–72, 176–79, 319–20 port powers (sch. 7), 82, 169, 173–75, 176–79 s. 47A, 176–79 statutory powers, 177 annual reports from Independent Reviewer of Terrorism Legislation, 83–84 definition of terrorism, 36, 50, 67 detention, duration of, 113 encouragement of terrorism, 39–40 financial support offences, 38 Gillan v United Kingdom, 172–75, 182–83 indefinite detention, 113 membership of proscribed organisations, 37–38, 67 precursor/preparatory offences, 40–43 secret evidence, 82 support offences, 38 withholding information about acts of terrorism, 40

Index  339 Terrorism Prevention and Investigation Measures, 57, 140–41 executive controls on movements, 58, 322 Independent Reviewer of Terrorism Legislation review, 84, 98 control orders, 89–90 exclusion zones, 90–91 locational constraints, 90 relocation, 91, 98 power-legislative scrutiny, 314 relocation powers, 91, 143, 146, 150 special advocates and, 114 Terrorism Prevention and Investigation Measures Act 2011 (UK), 313–14 annual review, 85–86 control orders regime, replacement of, 140–41, 142 exclusion powers, 146–47, 149–50 terrorist speech, see speech offences Troubles-based terrorism: formal organisation, 51–52 historical context, 46–47 ideology, 51 Jihadi-based terrorism compared, 3, 50–52, 61–62 United Kingdom: accountability of security services, 18 all-risks policing, see all-risks policing declarations of emergency, 12 domestic experience of terrorism, 45–46 formal v information organisation of groups, 51–52 ideologies, 51 Jihadi-based terrorism, 47–50 Troubles-based and Jihadi-based compared and distinguished, 50–52 Troubles-based terrorism, 46–47 weaponization of suicide, 51 forensic science: forensic failures, 234–35, 302–3 forensic fraud and malpractice, 233–34, 302–3 House of Commons Science and Technology Committee recommendations, 238–39 Royal Commission on Criminal Justice recommendations, 238 Jihadi-based terrorism: historical context, 47–50

ideology, 51 informal organisation, 51–52 Troubles-based terrorism compared and distinguished, 50–52 weaponization of suicide, 51 security services, 18–20 all-risks policing, 178 assessment of internal review process, 96–97 constitutional governance, 2–3, 18–21 accountability mechanisms, 19–20 Investigatory Powers Commissioners Office, 18 unlawful activities, 19–20 special advocates, 102–3, 106 communications restrictions, 107–8 speech offences, see speech offences Troubles-based terrorism: formal organisation, 51–52 historical context, 46–47 ideology, 51 Jihadi-based terrorism compared and distinguished, 50–52 United States: all-risks policing, see all-risks policing banning entry of foreign nationals, 12 closed hearings, 108–9 contraventions of human rights, 11 Executive Orders, 10, 12 failure to recognise international human rights law, 11 forensic science, 5, 229, 231 Daubert test (US), 239 National Commission for Forensic Science (US), 241 regulation of, 241 US National Research Council recommendations, 239 US President’s Council on Advisors on Science and Technology recommendations, 239 free speech, 165 Guantanamo Bay, see exceptional and military courts; Guantanamo Bay indefinite detention, 132, 202, 204 see also exceptional and military courts; Guantanamo Bay innocence projects, 202–3, 231, 293–94 Innocence Protection Act 2004 (US), 202–3 National Emergencies Act 1974 (US), 11

340  Index Privacy and Civil Liberties Oversight Board (US), 81 right to bear arms, 10 Screening of Passengers by Observation Techniques, 171 special advocates, see defences lawyers; exceptional and military courts; special advocates Transportation Security Administration, 171 US Constitution, 10–11, 129

weaponization of suicide, 22–23, 51, 58, 59, 61–62, 143 whistle-blowing, 19, 72, 74–75 withholding information about acts of terrorism: Prevention of Terrorism (Temporary Provisions) Act 1974 (UK), 34–35 Terrorism Act 2000 (UK), 40 wrongful convictions, see miscarriages of justice