Tuesday 23rd March, 5.00pm
Arts Lecture Theatre, New Arts Faculty Building


TERRORISM IN THE CRIMINAL COURTS

Seminar by

Professor Clive Walker,
Centre for Criminal Justice Studies, School of Law, University of Leeds

Bio
Professor Clive Walker is Professor of Criminal Justice Studies at the School of Law, University of Leeds. He was Director of the Centre for Criminal Justice Studies from 1987 to 2000 and then Head of the Law School between 2000 and 2005. He has written extensively on terrorism issues, with many published papers not only in the UK but also in several other jurisdictions, especially the USA, where he has been a visiting professor at George Washington and Stanford Universities. His latest book on terrorism is The Anti-Terrorism Legislation, (2nd ed., Oxford University Press, 2009). In 2003, he was a special adviser to the UK Parliamentary select committee which was scrutinising what became the Civil Contingencies Act 2004. A further book commentating upon that legislation, The Civil Contingencies Act 2004: Risk, Resilience and the Law in the United Kingdom, was published by Oxford University Press in 2006.

Abstract
The United Kingdom's complex anti-terrorism strategy comprises several strands, including prosecution and non-prosecution action within 'Pursuit'. These bifurcated legal paths are represented by criminal justice solutions on one side and executive responses beyond criminal justice on the other. In the UK, the latter have comprised detention without trial and control orders, but these have never cohered into the sharper and more comprehensive fissure represented by the US' 'war on terror'. My thesis is that criminal justice is the preferable legal response but that, even if this proposition is accepted, there will arise inevitable strains which put at issue the fundamental values of criminal justice. Criminal justice itself goes on trial when the subject matter is terrorism. Its effectiveness, its efficiency, and its demands of due process become suspect from the perspectives both of the state and of the community, though often from opposite desires.

Breaking this thesis down, there are four elements. The first is normative – to examine the ethical gains from a criminal justice approach. This ties closely with the second element - testing its implementation. The paper will claim that, unlike the US' 'war on terror' approach, criminal prosecution has in fact been prioritised in the UK in response to terrorism ever since the Diplock Report in Northern Ireland in 1972.

The third point is to examine the tensions which are created between the delivery of the policy goals, prosecution and non-prosecution action, and the processes by which individuals can test their treatment in consequence of them. The tensions generate clashes around due process rights both in the application of executive measures and also in the application of criminal justice. One discernible trend is some impetus towards convergence. On one side, uncomfortable new due process demands are imposed on the executive measures. The longer-term effect of this pressure to adhere to due process, waged both in the courts and in Parliament, has been a suppression of non-prosecution action and a reinvigoration of attention to criminal justice. On the other side, within prosecution practices, the opposite trend is occurring with compromises to traditional due process features so that criminal justice procedures can handle anticipatory risk and security requirements.
  The fourth element of the thesis considers future pressures on due process in criminal justice. These might arise negatively whenever there is a perceived failure of criminal prosecution. Could a national security court be a solution? Has it already been constructed under the folds of incremental pragmatism in the UK? Conversely, a factor which might boost criminal prosecution concerns the peculiar inadmissibility of intercept evidence but its transformation in status from intelligence to evidence is proving close to intractable.