Investigating Terrorism

Current Political, Legal and Psychological Issues

John Pearse

• Publisher: Wiley-Blackwell
• Year: 2015
• Print ISBN: 9781119994169, 9781119994152
• eBook ISBN: 9781118316276
• Edition: 1
• Topic: Psychology
• Subtopic: Forensic Psychology
• Index: Psychology

INVESTIGATING TERRORISM

'How can we be more effective in bringing terrorists to justice in ways that uphold our legal traditions? This book provides crucial clues drawn from highly experienced prosecution and defence lawyers, detectives, security experts and forensic psychologists. I highly recommend it for all who want to understand and respond to the serious threat from jihadist terrorism over the years to come.'
Professor Sir David Omand, former UK Security and Intelligence Coordinator, Permanent Secretary of the Home Office and Director GCHQ

'Edited and written by experts in their fields and with a plethora of experience, the authors know what they are talking about. This book is a must for those who need to know, those who are interested to know, and those who think they know it all already.'
Susan Young, Professor of Forensic Clinical Psychology, Broadmoor Hospital, West London Mental Health Trust

Investigating Terrorism takes a look behind the closed doors of terrorist cases, and at the entire judicial process of these cases from heated debates in both Houses of Parliament, through arrest, prosecution and imprisonment. In doing so, it confronts many of the crucial political, enforcement, legal and psychological issues currently influencing major decision-makers in this arena.

Specialist contributors discuss recently released research into the effectiveness of front-line counter-terrorism officers in their dealings with terrorist suspects, including the findings from a study commissioned by New Scotland Yard into the effectiveness of police interviews with terrorist suspects. Also included are strategic reviews of many of the major legislative changes and subsequent high-profile legal challenges that have repeatedly undermined government policy. Contributors provide a clear psychological understanding of aspects of terrorist behaviour, including insights into what drives individuals to become suicide bombers.

Contributions come from leading barristers, senior police officers and psychologists. Contributors Lord Carlile, the former HMG's Independent Reviewer of Terrorist Legislation, and Peter Clarke, the recently retired head of the Anti-Terrorist Branch for the UK, combine academic credentials and understanding with substantial policy or practitioner experience. This combination of perspectives ensures a holistic and richly informed view of the subject and issues.

Part I

Political, Legal and Policing Context

Chapter 1
The Impact and Consequences of Terrorist Legislation in the United Kingdom Since 2001
A Review

Lord Carlile of Berriew, QC, and Carys Owen

This chapter is designed to provide a historical and current political context for established and developing counter-terrorism law in the United Kingdom. It focuses principally on events since the attack on the World Trade Center in New York on 11 September 2001. Since that time every step in counter-terrorism law has been the subject of intense debate in the UK Parliament, a feature exemplified, as we shall examine, by the debates in both the House of Commons and the House of Lords on the Justice and Security Act 2013. This was legislation dealing with two important but limited areas of national security law and policy: first, the objective and empirical scrutiny of national security activity by a committee made up of parliamentarians and, secondly, the protection or disclosure of national security information in civil proceedings brought against the state by claimants alleging unlawful activity by the state in the name of national security.

The legislation illustrates an increasing tension. On the one hand, the state has to be able to take appropriate action founded on the best available methods to disrupt, prevent, detect and discourage terrorist activity. State actors may find the intervention of the law and the courts to be an inhibiting irritant in this difficult task, especially as the extent of action by the security agencies and the expectation of accountability have expanded since the early 2000s. On the other hand, the protection of the rule of law is seen as the essential protection against arbitrary action by the state even when there is a veneer of statutory or common law justification. The overarching question is the extent to which the action of the state to keep its citizens safe has been subject to ‘juridification’ (see also Walker, 2011).

Other very recent factual examples can be given. The detention of David Miranda at London Heathrow Airport on 18 August 2013 gave rise to a deeply contentious discussion about the freedom of the media to disclose questioned intelligence activity which may directly or indirectly disclose national security information (see R (Miranda) v. Secretary of State for the Home Department and others, 2013, and Blair, 2013). This is exactly the kind of dispute likely to attract intense scrutiny of the provisions and effectiveness of the Justice and Security Act.

Another example is the parliamentary debate and ubiquitous media comment on action falling short of war against Syria, following the use of chemical weapons against the civilian population in August 2013. The focus on legality in the parliamentary debates of 29 August 2013 exceeded that in the parliamentary settings of France and the United States on the same issue. As the Chilcot Inquiry into the war in Iraq (set up in July 2009 but still to report at the time of writing) has shown in its proceedings, the role of the Attorney General has for the time being become of paramount importance (as well as politically exposed for the individual concerned), in his or her capacity as legal adviser to Her Majesty's Government, and therefore indirectly to Parliament.¹

As a result of the situation in Northern Ireland, the statute book in the UK thickened. There were seven material Acts of Parliament between 1974 and 2001, and 62 statutory instruments (secondary legislation that allow the provisions of an Act to come into force or be revised without the need to pass another Act). Between 2001 and the end of 2013 there were an additional nine terrorist-related Acts and an astonishing 67 statutory instruments. The post-2000 legislation, after the enactment of the Terrorism Act 2000, has been mainly a reaction to 9/11 and the onset of violent extremism linked to al-Qaeda. Though it has existed as a movement since 1988 and carried out terrorist attacks well before 2001, al-Qaeda became deeply ingrained in the British consciousness after 9/11. As with all legislation enacted in haste or fear, or both, counter-terrorism legislation has been inadequately debated and scrutinized in Parliament.

The frequent and profound political controversy and argument about the legislation has been supported by representatives of the legal professions. Accusations have been levelled at the British government that, in pursuing policies designed to simplify the detection of terrorism, they have sought to diminish the rule of law by breaching the rights of the individual, thereby increasing the risk that innocent people, especially associates of genuine terrorism suspects, will be unjustly affected. It is noteworthy that these accusations have now been levelled at each major political party in the UK (Gearty, 2013).

The political debates and clashes surrounding the proliferation of legislative action represent the UK's struggle to balance the aims of protecting the public from terrorism while protecting the individual's rights. There has been no declaration of ‘war on terror’, as in the United States, which depicted terrorism suspects as ‘enemy combatants’, thereby circumventing the norms of criminal justice. Here, the battle has been a very British one, informed by difficult lessons learned during the Northern Ireland conflict.

Lord Macdonald, QC, a past Director of Public Prosecutions and now a Liberal Democrat member of the House of Lords, pointedly opposed the rhetoric of the ‘war on terror’ by characterizing the issue in the following terms:

the fight against terrorism on the streets of Britain is not a war. It is the prevention of crime…a culture of legislative restraint in the area of terrorist crime is central to the existence of an efficient and human rights compatible process.

(Macdonald, 2007)

Challenges on both sides have pushed boundaries, provoked thought and divided opinion, generally depicted simplistically as a difference between those charged with the protection of the nation's security and those protecting the rights of the individual. Without the robust legal challenges mounted by and on behalf of some of these individuals, the rule of law would most certainly have been eroded significantly.

Whether the rule of law has prevailed is a matter of opinion. However, a conclusion which these authors draw is that almost all state agencies have recognized the importance of keeping within the rule of law, albeit with subjective elasticity sometimes being applied to that phrase.

The Changing Legal Landscape

Al-Qaeda is described by the British Security Service (MI5) on their website in the following terms:

an ideology that unites a variety of grievances…into a ‘single narrative’ of a global conspiracy against the Muslim world…Al Qaida's members adopt an extreme interpretation of Islamic teaching which they believe places an obligation on believers to fight and kill to achieve their aims. Most Muslims and the world's leading Islamic scholars reject this position.

(MI5, n.d.)

The emergence of al-Qaeda and terrorism linked with Islamic extremism created a new dimension to terrorism in the UK. No longer were terrorist attacks preceded by advance warning to minimize civilian casualties; in fact, suicide bombers were deployed in order to maximize the same. The threat from this type of attack has created a need for the executive to find means to intervene early enough to disrupt such plots. Terrorists seeking to harm British interests include foreign nationals and British citizens alike, and therefore greater coordination between intelligence and enforcement agencies has been required to deal with these threats. According to the former head of MI5, the main terrorism threat to the UK comes from (1) the tribal areas of Pakistan, where the senior al-Qaeda leadership is based; (2) Somalia; (3) Yemen; (4) home-grown terrorists; (5) Syria (Evans, 2007). The legislature has responded with a stream of controversial legal measures.

The foundations for the major piece of legislation the Terrorism Act 2000 (the 2000 Act) originate from a report into counter-terrorism legislation produced for the then government in 1996 by Lord Lloyd of Berwick with Sir John Kerr, although it is to be noted that the legislation in a number of respects did not follow all or with precision the recommendations made in the Lloyd report (Lloyd & Kerr, 1996).

The legal landscape may be examined from the perspective of: (1) changes to the criminal justice system to prosecute terrorism as crime; (2) the expansion of executive powers to deal with suspected terrorists who may not be prosecuted because of difficulties of evidence and disclosure; and (3) procedural constraints (intelligence sharing, disclosure, closed hearings and torture). Each has struggled to find the balancing point between protection of the public from terrorist attacks and protection of the individual's rights.

Criminal Justice System: Prosecuting Terrorism

Successive governments have asserted that prosecution is the preferred approach when dealing with suspected terrorists. Consistent with this policy, many offences charged against terrorists are provided for in counter-terrorism legislation, but many charges have been of non-specialty offences such as homicide, offences against the person and offences under the Explosive Substances Act 1883. A lesson from the experience of Northern Ireland is that the use of ‘normal’ criminal legislation is generally to be preferred to specialty legislation.

What follows is a short review of the terrorist specialty legislation as it affects the criminal jurisdiction.

The Terrorism Act 2000

An offence of terrorism as such does not exist. But several offences related to terrorism are created by this Act, including membership of, support for and the wearing of the uniform of a proscribed organization; fund-raising and offences related to money laundering. The Act also created offences of omission (where certain individuals fail to report their suspicions) relating to terrorist financing, training for terrorism, directing terrorism, possession of items for terrorist purposes and collecting information for terrorist-related purposes. The last two are the most commonly used.

The above offences are directed to protect the public, the government would say, without any irrationality or oppressiveness attached to them and as such are within the rule of law.

Stop and search powers

Sections 41 and 44 of the 2000 Act have created sufficient interest to warrant separate treatment. They provided the stop and search powers of people and vehicles within zones permitted by the Home Secretary on application by the police, and without the otherwise normal requirement of reasonable suspicion.

Section 44 ran foul of the truism that terrorism-related powers should be used only for terrorism-related purposes, otherwise their credibility is severely damaged, and the damage to community relations if they are used incorrectly can be considerable. Its purpose and deployment were poorly understood and examples of poor or unnecessary use of section 44 have abounded (Carlile, 2007). For example, the authors are aware of numerous uses against individuals who could not conceivably be seen to be potential terrorists, including a retired military chief and a middle-aged and highly regarded solicitor travelling in his large car who happens to be Asian.

Guidance on stop and search in relation to terrorism, created on behalf of the Association of Chief Police Officers (ACPO), failed to produce the necessary effect. In the year 2008, 250,000 individual section 44 searches were made in Great Britain; in 2009 this figure reduced significantly, but was still very high—148,798. Of the 43 territorial police forces in England and Wales, only a minority ever used section 44. Only a single territorial force in Scotland used it, in very limited and special circumstances. The Metropolitan Police and the British Transport Police accounted for 96.4 per cent of all section 44 stop and searches during that year; 16 per cent of those stopped in 2009 were Asian or Asian British (Home Office, 2012a).

In March 2010 the Home Office published the findings of an Occasional Paper it had commissioned into public perceptions of the impact of counter-terrorism legislation (Home Office, 2010). Its conclusions showed a mixed reaction from the public but it is clear that there are perceptions that

• the process was discriminatory;
• it was based on stereotypes and racial profiling and,
• importantly, the difficulties were not necessarily linked to the measure itself, but to the way it was i...

Table of contents

• Cover
• Praise for Investigating Terrorism: Current Political, Legal and Psychological Issues
• Title Page
• Copyright
• Dedication
• About the Editor
• About the Contributors
• Introduction
• Part I: Political, Legal and Policing Context
• Part II: The Criminal Justice Process
• Part III: Individual and Group Perspectives
• Index
• End User License Agreement