Fergal Davis of the Gilbert & Tobin Centre for Public Law at the University of New South Wales has posted a thought-provoking paper on SSRN. Entitled ‘The Jury as a Political Institution in an Age of Counterterrorism’, the abstract is as follows:
Trial by jury is under threat. This is particularly true in the context of terrorism. This article will explore the benefits of trial by jury to civil society. It will then consider whether those benefits should give rise to a presumption in favor of jury trial in the terrorism context. Historically, the right to trial by jury has been interfered with on the basis that the threat of terrorism justified an exceptional response. This article will argue that the state of exception arising from States’ responses to terrorism in fact demands the retention of trial by jury.
Davis argues that understanding the jury as a political institution, rather than merely a functional tool of the criminal justice system, allows us to truly understand its importance in cultivating a strong civil society and a healthy democracy. The paper is forthcoming in Politics and is well-worth a read – jury trials are one of the lesser-examined aspects of counter-terrorism and this paper does some useful work in filling that gap.
Some readers may be interested in the recent publication of my monograph, EU Counter-Terrorism Law: Pre-emption & the Rule of Law. The book is the first sustained study of EU legislation in the field of counter-terrorism. It critically examines EU counter-terrorism measures to ascertain how rule of law principles have been affected in the ‘war on terror’. The book opens with an overview of the “war on terror”. It notes that the trend in both the UK and US
has been towards pre-emptive intervention that attempts to eliminate threats to national security before they arise. Building on twentieth-century ideas of risk and actuarial justice, these trends undermine traditional legal protections by shifting the target of law enforcement from acts already committed to action that may be committed in the future.
The book seeks to assess how these developments have had an impact on the rule of law. It develops a critical understanding of the EU rule of law and then goes on to analyse five key facets of EU counter-terrorism: Continue reading “Book Publication: EU Counter-Terrorism Law”
This week saw the release of the second report of the current Independent Reviewer of Terrorism Legislation on the operation of the Terrorism Acts. The report is a remarkable work, running to over 140 pages in length, and covering several topics in depth. Although the role requires a report covering the whole legislation, the Reviewer, David Anderson QC, has paid particular attention to the definition of terrorism, the availability of bail in relation to terrorist offences and the system of proscription of organisations.
The report has attracted some press attention, though perhaps less than would have been the case during the heady Blair/Brown years of a perpetual counter-terrorism legislative cycle. The BBC coverage offers analysis by Continue reading “A Radical Review of UK Terrorism Legislation?”
In a recent collection of essays on critical legal thinking the editors claim that ‘not only does law increasingly resemble politics, but politics increasingly resembles law’. What emerges is an ‘indistinct fuzzy middle zone’ in which powerful Governments are often glad to operate. However, as law comes to touch on more and more areas of life so too do we witness the ‘dissipation of the legal form in ways that allows power to assert a more pervasive grip on life’. This dissipation, which strips away the rules of legal argument, the procedures of legal institutions, and even the fundamental principles of the legal system, is becoming a hallmark of the current Government’s approach to human rights law. Continue reading “The Dissipation of UK Human Rights Law”
“The gravity of this case is in my view of a different order from, for example, a murder committed by one individual upon another as a result of some sudden quarrel. There was a degree of general premeditation; it was a racist crime driven by hatred; it involved a gang of like-minded attackers; a lethal weapon was employed and known in advance to be carried; the victim was completely blameless and helpless. The high level of public interest in this case is at least in part a reflection of the abhorrence felt by right-thinking people at the nature of this crime. This, too, should be reflected in the sentence.”
Thus Mr Justice Treacy summarised the thinking behind his imposition of Detention at Her Majesty’s Pleasure upon Gary Dobson and David Norris – who were yesterday convicted of the murder of Stephen Lawrence in 1993. The sentence is the juvenile equivalent of a life sentence and the two will now be imprisoned, or on release on license, for the remainder of their lives. Dobson will serve a minimum term of 15 years and 2 months, while Norris, the younger of the two, will serve a minimum term of 14 years and 3 months. These terms take into account the fact that the offence was motivated by racial hatred, but also that it was committed by a group of men who were juveniles at the time.
On January 19 next Martin Scheinin, former UN Special Rapporteur for the Protection of Human Rights in the Pursuit of Counter-Terrorism and Professor of International Law at the European University Institute will give a lecture entitled “UN Security Council Terrorist Listing and Judicial Review: The Current State of Play”. The lecture, hosted by the Centre of European Law at King’s College London, will be chaired by David Anderson Q.C. of Brick Court Chambers. Anderson is the Independent Reviewer of Terrorism Legislation and Visiting Professor at King’s College London. The event promises to explore some of the difficult issues surrounding asset-freezing at UN and EU level. The lecture will be hosted at Parliament Chamber at Inner Temple. It is open to the public but registration is required. To register, see the CEL website.
Gary Dobson & David Norris have been found guilty of the murder of Stephen Lawrence in 1993. The Lawrence murder and the failure of the Metropolitan Police Service in dealing with it prompted a damning report from Lord Macpherson following an Inquiry that concluded in 1999. The report famously described the Metropolitan Police Service as ‘institutionally racist’ – though the precise meaning of that term, and its application to the MPS, was contested after publication. The identity of those suspected of Lawrence’s killing was controversially revealed by the Daily Mail in February 1997 when it emblazoned its front page with the headline ‘MURDERERS’ and pictures and names of five men. The paper challenged the five men, of whom Dobson & Norris were two, to sue if the accusation was false. No suit was brought. An initial attempt at a private prosecution by the Lawrence family had resulted in an acquittal for lack of evidence. However, the availability of new evidence – based on hair and DNA samples found on the suspect’s jacket, resulted in the Crown Prosecution Service pursuing the case once more. The retrial follows a change to the UK law on double jeopardy that was introduced by the Criminal Justice Act in 2003. Joshua Rozenberg discusses the change and its effect on the Lawrence case over at the Guardian Law. A timeline of the case is also available. Dobson & Norris will be sentenced tomorrow.
The exploitation of Ireland’s natural resources has given rise to some of our livelier posts of the past year. 2012 may see an ‘anti-fracking’ campaign in Clare join the Shell to Sea campaign on the battlefield over the state’s efforts to exploit natural resources in the West of Ireland. ‘Fracking’ is shorthand for a process known as ‘hydraulic fracturing’ that, in short, involves pumping high pressure fluids into the ground to fracture the underlying rock and make it easier to extract fossil fuels such as gas. Opposition groups include ‘What the Frack‘ in Ireland and ‘Frack Off‘ in the UK. Last Tuesday’s Irish Examiner carried a letter of opposition from the Centre for Environmental Living & Training, based in Scariff, County Clare and a report in today’s Irish Times suggests that the campaign against fracking in the Clare Basin will be stepped up in the new year. Continue reading “Campaign Against Fracking in County Clare”
Last Wednesday, the European Court of Justice issued a flurry of judgments just before the Christmas break. Indeed, there were so many interesting and important decisions amongst the twenty or so handed down that seems foolish to consider any of them the ‘most important’. Nonetheless the judgment in NS and Others v SSHD (C-411/10) must be a contender for the title. The case concerns an asylum seeker in Britain who first entered the EU through Greece. The Dublin Regulation, which governs this aspect of EU asylum law, would ordinarily dictate that the applicant should be sent to Greece to have his asylum claim considered there. However, Mr Saeedi challenged his transfer to Greece, claiming that his human rights would be infringed by such a transfer as Greece would be unable to process his application. NS was joined with an Irish case, ME & Others v Refugee Applications Commissioner & MEJLR (C-493/10), which raised similar questions for EU law. Continue reading “The ECJ on Aslyum, Greece & the UK Protocol on the EU Charter”
One could be forgiven, amidst the furore over the European Court of Human Rights’ Al-Khawaja judgment last Thursday, for missing the first report of the Independent Reviewer of Terrorism Legislation on the operation of the Terrorist Asset-Freezing etc Act 2010. The Report runs to over 100 pages and is the most comprehensive account of UK terrorist asset freezing in print. It is the third report of the current Independent Reviewer, David Anderson Q.C., since he took up the post in February. Asset freezing is something of a speciality of his, as he has appeared in litigation in both EU and UK courts on the matter. It is therefore unsurprising that the Report exhibits the same attention to detail that made Anderson’s previous two efforts essential reading. Continue reading “UK Asset-Freezing: Towards Reform or Refinement?”