Justice and terrorism

New Criminal Law Review

Volumn 10, Issue 4, 2007, Pages 658-689

  Tadros, Victor ^a  

^a UNIVERSITY OF WARWICK   (United Kingdom)

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EID: 40749106158     PISSN: 19334192     EISSN: 19334206     Source Type: Journal    
DOI: 10.1525/nclr.2007.10.4.658     Document Type: Article

References (103)

1. See Sandra Marshall & Antony Duff, Criminalization and Sharing Wrongs, II Canadian J.L. & Jurisprudence 7, (1998);
2. Antony Duff, Punishment, Communication and Community (2001).
3. The project has recently been furthered. See Douglas N. Husak, Overcriminalization (2007).
4. Victor Tadros, Criminal Responsibility (2005).
5. See, e.g., Michael S. Moore, Placing Blame (1997).
6. See, e.g., H.L.A. Hart, Punishment and Responsibility (1968).
7. See Antony Duff, Criminal Attempts (1996).
8. The Trial on Trial: Toward a Normative Theory of the Criminal Trial (Antony Duff, Lindsay Farmer, Sandra Marshall, & Victor Tadros eds., 2007).
9. See also Victor Tadros, Rethinking the Presumption of Innocence, i Crim. L. & Phil. 193 (2007).
10. That is not to say that no philosophical work is done here either. For example, there is quite a bit of work done on the legitimacy of racial profiling in investigation. See, e.g., Matthias Risse & Richard Zeckhauser, Racial Profiling, 32 Phil. Pub. Aff. 131 (2004);
11. Annabelle Lever, Why Racial Profiling Is Hard to Justify, 33 Phil. Pub. Aff 94 (2005). And there is some philosophical work on the right to privacy and its implications for criminal investigations. See Privacy and the Criminal Law (Erik Claes, Antony Duff & Serge Gurwirth eds., 20o6).
12. On the relationship between policing and criminal offenses, see Markus Dirk Dubber, The Possession Paradigm: The Special Part and the Police Power Model of the Criminal Process, in Defining Crimes: Essays on the Special Part of the Criminal Law 91 (R.A. Duff & Stuart F. Green eds., 2005).
13. See Andrew von Hirsch, Censure and Sanctions (1993);
14. Duff, supra note 1;
15. John Tasioulas, Punishment and Repentance, 81 Phil. 279 (2006).
16. For doubts about a unified theory, see Tasioulas, supra note 10.
17. For recent examples of analysis of the politics of crime in the UK and the U.S. respectively, see Ian Loader, Fall of the "Platonic Guardians": Liberalism, Criminology and Political Responses to Crime in England and Wales, 46 Brit. J. Criminology 561 (2006);
18. Jonathan Simon, Governing Through Crime (2007).
19. It would be wrong to say that there is no work at all with this agenda. See Andrew Ashworth & Lucia Zedner, Defending the Criminal Law: Reflections on the Changing Character of Crime, Procedure, and Sanctions, Crim. L. & Phil. (forthcoming) (assessing and critiquing some important trends);
20. see also Lucia Zedner, The Concept of Security: An Agenda for Comparative Analysis, 23 Legal Stud. 153 (2003) [hereinafter The Concept of Security];
21. Lucia Zedner, Securing Liberty in the Face of Terror: Reflections from Criminal Justice, 32 J.L. & Soc'y 507 (2005) (providing a theoretical critique of security in general and security in relation to terrorism).
22. The term security is, as noted in Zedner, The Concept of Security, supra note 13, slippery, but I intend to take as my focus simply the objective risk of being offended against. There is also an important issue about the role that the state has in making citizens feel secure, see Zedner supra note 13, and democratic processes may have a role in addressing that as well, see Ian Loader & Neil Walker, Civilizing Security (2007).
23. See, e.g., Cass Sunstein, The Laws of Fear (2005);
24. David Dyzenhaus The Constitution of Law: Legality in a Time of Emergency (2006).
25. See Loader & Walker, supra note 14 (connecting these two discourses).
26. attempted some analysis of Foucault's contrast between juridical power and biopower. See Victor Tadros, Between Governance and Discipline: The Law and Michel Foucault, 18 Oxford J. Legal Stud. 75 (1998).
27. Michel Foucault, Society Must be Defended 246 (Mauro Bertani & Alessandro Fontana eds., David Macey trans., 2003).
28. In that light, Nozicles Anarchy, State and Utopia seems not only normatively unattractive but also unrealistic about what can be achieved with respect to the modern state. See Robert Nozick, Anarchy, State and Utopia, (1974).
29. Prevention of Terrorism Act, 2005.
30. See, e.g., Anti-Terrorism, Crime and Security Act, 2001, Pt. 10.
31. This length, after heated parliamentary debate, currently stands at twenty-eight days.
32. To take a prominent example, Dworkin argues against detention without trial in Guantanamo Bay on the grounds that it is incompatible with equal citizenship to do this given the normal operation of criminal justice. R.M. Dworkin, Is Democracy Possible Here? (2006).
33. But the normal operation of criminal justice in the U.S. can hardly be called justice at all in the light of the very extensive range of offenses available for prosecution and conviction. See, e.g., Markus Dirk Dubber, Victims in the War on Crime: The Use and Abuse of Victims' Rights (2002);
34. Dubber, supra note 9;
35. Husak, supra note 2.
36. A (FC) and Others (FC) v. Secretary of State for the Home Department, [2004] UKHL 56.
37. European Convention on Human Rights, art. 15.
38. See Lord Hoffmann's dissent. A (FC) and Others (FC) v. Secretary of State for the Home Department, [2004] UKHL 56, paras. 86-97.
39. See particularly the judgment of Lord Bingham. Id. paras. 43-44.
40. It should be noted that the Human Rights Act 1998 does not provide the courts with the power to strike down legislation, but only to declare it incompatible with the ECHR. See Human Rights Act, 1998, §4. This meant that in principle Parliament could have dug its heels in and part IV of the Crime and Security Act 2001 would have remained in force.
41. See, e.g., Adam Tomkins, Readings of A v. Secretary of State for the Home Department, 2005 Pub. L. 259;
42. Special Issue on A v. Secretary of State for the Home Department, 68 Mod. L. Rev. 654, (2005);
43. Dyzenhaus, supra note 15, at 174-90. One central concern is that even in this case the House of Lords was overly deferential to Parliament on that issue.
44. Prevention of Terrorism Act, 2005, §4(3)(d).
45. Id. §3(1).
46. Id. §2.
47. See also Lucia Zedner, Preventive Justice or Pre-Punishment? The Case of Control Orders, 60 Current Legal Probs. (2007).
48. Although where there is interference with human rights, including the right to liberty, judicial review may include review on grounds of proportionality. See Secretary of State for the Home Department ex parte Daly, [2001] UKHL 26.
49. For concerns about restrictions on liberty imposed by the executive against particular individuals or classes of individual, See Sunstein, supra note 15.
50. Secretary of State for the Home Department v. E, [2007] EWHC 233 (Admin).
51. See also Secretary of State for the Home Department v. JJ and Others, [2006] EWCA Civ 1141 (an earlier case in which six control orders were declared incompatible with article 5).
52. See Secretary of State for the Home Department v. MB, [2006] EWCA (Civ) 1140.
53. A v. Secretary of State for the Home Department, [2004] UKHL 56.
54. But see Lord Hoffman's dissent in that case for a question mark about that aspect of the case.
55. Prevention of Terrorism Act, 2005, §4(3).
56. Id. §4(8).
57. See the Schedule to the Prevention of Terrorism Act, 2005.
58. See Zedner, supra note 33.
59. In the context of terrorism, see Clive Walker, The Legal Definition of "Terrorim" in United Kingdom Law and Beyond, 2007 Pub. L. 331;
60. see generally Dubber, supra note 9.
61. Terrorism Act, 2006, §1. The offense was partly motivated by the Council of Europe Convention on the Prevention of Terrorism (ETS No.196).
62. See Adrian Hunt, The Council of Europe Convention on the Prevention of Terrorism, 12 Ent. Pub. L. 603, (2006).
63. For further analysis of the lack of clarity about the scope of this offense, see Adrian Hunt, Prohibitions on Direct and Indirect Encouragement of Terrorism, Crim. L. Rev. 441, (2007).
64. Terrorism Act, 2000, §57.
65. Id. §58.
66. Id. §15.
67. Id. §18.
68. Id. §11.
69. Id. §12.
70. Id. §13.
71. Attorney General's Reference No-4 of 2002, [2004] UKHL 43.
72. See also Tadros, supra note 8.
73. Terrorism Act, 2000, §19.
74. Id. §38B, as amended by Anti-terrorism, Crime and Security Act, 2001, §117(2).
75. [2006] EWCA CriM 2051M.
76. It is worth noting that, in 2002, research by the Sentencing Advisory Panel showed that the average sentence for rape was seven years and four months in prison. Alan Clarke, Jo Moran-Ellis & Judith Sleney, Attitudes to Date Rape and Relationship Rape: A Qualitative Study (2002).
77. [2007] EWCA 243.
78. For critique, see Walker, supra note 43.
79. See, e.g., Tony Coady, The Morality of Terrorism, 60 Phil. 47 (1985);
80. Tony Coady, Terrorism, Morality, and Supreme Emergency, 114 Ethics 772 (2004);
81. Samuel Scheffler, Is Terrorism Morally Distinctive?, 14 J. POL Phil. 1 (2006).
82. See, e.g., Zedner, supra note 13;
83. Dworkin, supra note 23.
84. See Tadros, supra note 3, ch. 4.
85. See John Gardner, Justifications and Reasons, in Harm and Culpability 103 (A.P. Simester & A.T.H. Smith eds., 1996).
86. See Terrorism Act, 2000, §118.
87. See 3 The Trial on Trial, supra note 7.
88. For further argument in the context of the presumption of innocence, see Victor Tadros & Stephen Tierney, The Presumption of Innocence and the Human Rights Act, 67 Mod. L. Rev. 402 (2004);
89. Tadros, supra note 8.
90. Terrorism Act, 2000, §42.
91. See the work cited in supra note 9.
92. It is sometimes claimed that there might be justifications for "pre-punishment," for those intending to commit criminal offenses. See Zedner, supra note 13;
93. Zedner, supra note 29.
94. There are, of course, some justifiable inchoate offenses, such as attempts, for which actual punishment is deserved. For the best account, see Duff, supra note 6. Beyond that, I see no role for the idea of "pre-punishment." We should retain a clear distinction between the state's obligations of retributive justice and security. The idea of pre-punishment, I think, muddies the waters with no benefit.
95. On some worrying trends regarding the latter, see Clive Walker, The Treatment of Foreign Terror Suspects, 70 Mod. L. Rev. 427 (2007).
96. Loader & Walker, supra note 14, also argue that security is a public good, but primarily on the ground that the common enterprise of developing a public policy on security is constitutive of security itself.
97. Private security firms are now common as security providers, although they are often subject to government regulation. There may be normative concerns about private security, but they do not flow from the arguments here.
98. John Rawls, A Theory Of Justice 28 (1999).
99. See Privacy and the Criminal Law, supra note 9.
100. Thomas Nagel, Equality and Partiality 142 (1991).
101. See also Rawls, supra note 73, at 216-17.
102. See Secretary of State for the Home Department v. MB [2006] EWCA Civ 1140.
103. See also Secretary of State for the Home Department v. E, [2007] EWHC 233 (Admin).