In his understated way, Lord Justice Gross announced the latest round of the prize-fight that has defined so much of the debate on the role of the legal system in a liberal democracy since the 9/11 attacks (at ): “From time to time, tensions between the principle of open justice and the needs of national security will be inevitable.” This morning’s decision in Guardian Media v AB CD once again saw national security, long-running champion interest in the UK legal systems, take to the ring being heralded (at ) as “a national interest of the first importance”. Continue reading “Rule of Law v National Security: The Big Fight Live”
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.
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?”
We are delighted to welcome back Rachel Herron, a PhD candidate at Durham Law School. This post focuses upon Schedule 7 of the Terrorism Act 2000 and its continuing racial effect, Rachel has previously worked as a solicitor in private practice.
Section 44 of the Terrorism Act 2000, which permitted suspicionless stops and searches to be carried out by the police in connection with counter-terrorism policing, was declared illegal by the ECHR in Gillan and Quinton v UK. Subject to such judicial condemnation Government launched a review of the power and, upon the publication of the results of the review, announced its conclusion that use of the power represented an ‘unacceptable intrusion on an individual’s human rights’ and should, therefore be repealed. The power thereby completed its transformation from an invaluable national security weapon to a discriminatory and ineffective police power. This overdue decision was met with widespread support from the many organisations that had long-criticised the suspicionless stop and search power for its ineffective and discriminatory nature.
Despite this apparently happy ending in a blog in October 2010 I suggested that merely giving lip-service to the need to avoid discriminatory implementation of the powers would be insufficient to protect against what is a deeply entrenched and pervasive characteristic of the country’s legal system. Continue reading “Guest Post: The Continuing Racial Effect of Counter-terror Stop and Search”
The images of the Gardai’s horse charge or their over-zealous use of the baton (knocking a young woman out cold and bloodying the faces of others), being used on peaceful student demonstrations has a chilling effect. We are unaccustomed to seeing our Gardai in the same light as (the very often violent) Italian or French police forces. We are unaccustomed to Garda cavalry charges past the Shelbourne. To me, it brings back the memories of the 2009 Financial Fools march in London and some of the ensuing police violence, which lead among other things to the death of the bystander Ian Tomlinson. After that day, myself and a colleague penned this piece for Critical Legal Thinking. I was asked to republish it here which I think is appropriate.
Extraordinary rendition did not start on 11 September 2001; rather the practice of transferring individuals across borders without any due process was long a part of US policy although it usually consisted of ‘rendition to trial’ (such as in the infamous case of Adolf Eichman). It was miniscule in scale, however, compared to the extraordinary rendition programme that has developed in the ‘War on Terrorism’. In this post I want to reflect on two parts of the extraordinary rendition programme that raise particularly interesting and difficult questions: the use of ‘third countries’ for over-flight and refuelling (including, it is alleged, Ireland) and the response of those countries by relying on diplomatic assurances; and the use of private companies to facilitate rendition (especially logistics and aircraft charter companies). Both of these demand that reflect on the vulnerabilities that exist in our approaches to human rights protection. Continue reading “Remembering 2001: Extraordinary Rendition”