Terrorist Profiling and Law Enforcement

Detection, Prevention, Deterrence

Noel McGuirk

• Publisher: Routledge
• Year: 2021
• Print ISBN: 9780367697341
• eBook ISBN: 9781000337853
• Edition: 1
• Topic: Diritto
• Subtopic: Diritti civili in ambito legislativo

This book analyses the usefulness of terrorist profiling utilised by law enforcement officers as a pre-emptive means to assist them in the detection, prevention and deterrence of terrorism and/or its preparatory activities.

It explores two main themes arising from the phenomenon of terrorist profiling: the lawfulness of terrorist profiling and the utility of profiling. These two themes are explored in three separate parts. Firstly, the book begins by drawing upon human rights concerns arising from the use of terrorist profiling by law enforcement officers. Secondly, an analytical framework capable of making determinations on the usefulness of terrorist profiling. This framework develops a profiling spectrum that ranges from formal and informal manifestations of terrorist profiling that forms the basis for evaluating its usefulness. Finally, the book presents an examination of various manifestations of terrorist profiling by separating the analysis of the 'construction' of profiles on the one hand, from their 'application, ' on the other, so as to be able to identify and examine profiling's usefulness as a technique to assist law enforcement officers make predictions about likely offender characteristics.

This book ultimately concludes that terrorist profiling should only be conducted by undertaking a systematic assessment of the construction of profiles separate from the application of profiles whilst simultaneously taking into account fundamental human rights concerns with the practice of terrorist profiling.

The work will be an essential resource for academics, law enforcement officers and lawyers in the disciplines of law, criminology, human rights, criminal justice and policing. As the book engages with terrorist profiling, it will also be of interest to those engaged in the psychology of terrorism.

1Introduction

1.1Introduction

This book examines whether law enforcement officers are able to rely on profiling methods or approaches as a pre-emptive means to assist them in the detection, prevention and deterrence of terrorism and/or its preparatory activities by assisting them to identify those engaged or likely to be involved in acts of terrorism. Although the phenomenon of terrorist profiling has been examined previously, this book poses a number of new questions about terrorist profiling (outlined later in the chapter) in order to analyse its usefulness as a law enforcement tool to assist in managing the risks arising from the enduring war on terror.

The politics at the international level over the past decade and beyond has been primarily focused on creating laws and policies to ensure the protection of citizens and institutions of democracies against those countries, groups and individuals wishing to use violence as a means to demonstrate their objection and hostility towards the norms of democracy, liberty and freedom.¹

Enders and Sandler identify ‘that states have a positive duty towards ensuring the safety of its national culture, identity and democracy from the arbitrary interference of terrorism.’² This duty can be identified as comprising at least two strands. Firstly, the duty to protect against threats of terrorism and secondly the duty to uphold fundamental human rights and freedoms. In isolation, these duties are not contentious, but the means adopted by governments to discharge these duties often create controversy. Specifically, laws and policies aimed at managing the threat of terrorism regularly come into direct conflict with the duty to protect and uphold fundamental rights and freedoms.

These issues generally involve focusing on the question: to what extent it can be considered legitimate for a state to interfere with fundamental rights and freedoms so as to protect against the threat of terrorism? This often creates a conundrum for governments as to how to balance their duty to protect against the threat of terrorism versus their duty to uphold fundament rights and freedoms.

Over the course of the past few decades, various governments have sought to conduct this balancing exercise by relying on risk management strategies through the creation of counterterrorism frameworks. A recurrent theme in counterterrorism law and policy is that they provide law enforcement officers with an array of special police powers aimed at assisting in the prevention, detection and prosecution of those engaged in terrorism and/or terrorism preparatory activities.

The justification in favour of creating special police powers is due to the serious nature of the threat posed by terrorism to human life and the difficulty for law enforcement officers using more traditional police powers to detect, deter and prosecute terrorism suspects. Counterterrorism frameworks frequently represent ‘a fusion of national security and criminal justice policies in an attempt to move towards pre-emptive strategies of “prevention and control” of terrorism threats.’³

The counterterrorism ‘strategies of prevention and control have resulted in a shift towards’ a reliance on ‘anticipatory risk’ practices in policing policy ‘which aims to allow law enforcement officers to identify, interrupt and prosecute those suspected of terrorism offences before their commission.’⁴ One such policing policy is the use of a profiling method or approach that is aimed at assisting law enforcement officers identify those likely to be engaged in terrorism or its preparatory activities.

1.2Terrorism and profiling a definitional problem

At this stage, it is necessary to define profiling in a general sense and further to consider the definition of terrorism for the purposes of this book.

Profiling may be considered as being a process that allows the profiler to identify a sequence of commonalities from different sets of data so as to predict likely offender characteristics.⁵ There is a lack of consensus in the literature as to the precise definition of profiling which sways between a narrow and a broad definitional approach. For the purposes of this book, a broad definition of profiling is adopted so as to ensure that a significant array of profiling methods and approaches can be included for analysis. As a result, profiling is defined as being any technique or process that seeks to allow law enforcement officers to identify probable offender characteristics.⁶

The term profiling has become interchangeable with the terms ‘offender profiling, criminal profiling, criminal personality profiling and psychological profiling’ as a label for profiling techniques.⁷ Many methods use the same structure such as the analysis of crime scene evidence, victim reports and/or previous criminal records to identify common offender characteristics. The core differences lie in the abilities and the characteristics of the profiler and the use of the information by profilers to make predictions on likely offender characteristics.⁸ For example, some profiling methods may rely on forensic evidence to make predictions of likely characteristics, whilst other methods may use previous offending records to engage in statistical reasoning to identify commonalities to make predictions as to likely offender characteristics. Doughlas et al identify that there are commonly three phases of profiling in criminal justice including: ‘firstly, criminal investigation, secondly apprehension and thirdly prosecution.’⁹

Consequently, the use of any data by a profiler so as to make predictions about ‘likely offender characteristics can be considered some form of profiling’ that may occur during criminal investigation, apprehension or prosecution of offenders.¹⁰

The definition of terrorism is similarly problematic as there is no consensus in law or academia about its scope.¹¹ The absence of consensus may be attributable to the broad range of views and differences of opinion about the use of violence to further objectives.¹² Despite this lack of an agreed consensus, it is possible to develop a definition of terrorism in two ways. Firstly, there have been various attempts at the international and domestic levels to criminalise acts of violence. Secondly, it is also possible to draw upon academic literature to support a definition of terrorism for the purposes of analysis in this book.

Internationally, the United Nations General Assembly has condemned various uses of violence as acts of terrorism in the following terms:

criminal acts intended or calculated to provoke a state of terror in a general public, a group of persons or particular persons for political purposes are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them.¹³

Additionally, terrorism is described in the ‘International Convention for the Suppression of the Financing of Terrorism’ as being

[a]ny other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.¹⁴

At the domestic level in countries, such as the United Kingdom (UK), there is a statutory definition of terrorism that allows us to capture a formal definition of terrorism. Section 1 of Terrorism Act 2000(TA) provides a broad definition of terrorism as being:

1. 1In this Act ‘terrorism’ means the use or threat of action where—
   1. athe action falls within subsection (2),
   2. bthe use or threat is designed to influence the government [or an international governmental organisation] or to intimidate the public or a section of the public, and
   3. bthe use or threat is made for the purpose of advancing a political, religious [racial] or ideological cause.
2. 2Action falls within this subsection if it—
   1. ainvolves serious violence against a person,
   2. binvolves serious damage to property,
   3. cendangers a person’s life, other than that of the person committing the action,
   4. dcreates a serious risk to the health or safety of the public or a section of the public, or
   5. eis designed seriously to interfere with or seriously to disrupt an electronic system.
3. 3The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.¹⁵.

The definition of terrorism has also provoked considerable debate in the literature where a survey by Schmid and Jongman across over 100 definitions of terrorism led them to conclude that terrorism should be defined as being:

…an anxiety-inspiring method of repeated violent action, employed by a (semi-) clandestine individual, group or state actors, for idiosyncratic, criminal or political reasons, whereby – in contrast to assassination – the direct targets of violence are not the main targets.¹⁶

Although the international, domestic and academic discussion on the definition of terrorism shows considerable variation in approach, for the purposes of analysis throughout this book, it is necessary to identify a working definition of the term. There are at least two aspects that can be identified as being common denominators across the differing definitions. Firstly, the ‘use of violence or threat of violence’ and secondly the motives and objectives of the organisers/perpetrators of terrorism. As a result, terrorism for the purposes of analysis in this book shall be defined as being any ‘use or threat of violence with the purpose of advancing a political, religious, racial or [any] cause.’¹⁷ It is contended that this definition reflects most of the legal and academic definitions that law enforcement officers will employ when performing their duties.

1.3Central analytical aim

The primary aim of this book is to assess the usefulness of terrorist profiling as a counterterrorism tool. This aim is pursued by asking: to what extent (if at all), and in what ways (if any) terrorist profil...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Table of Cases
• Table of Statutes
• Figures and Tables
• Acknowledgements
• Preface
• 1 Introduction
• 2 The compatibility of terrorist profiling with fundamental rights
• 3 Criminal profiling and its applicability to terrorist profiling
• 4 Formal terrorist profiling: The construction and application of terrorist profiles
• 5 Behavioural profiling: The construction and application of behavioural profiles in the context of terrorism
• 6 An examination of manifestations of informal terrorist profiling
• 7 Conclusion
• Bibliography
• Index