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11 - Terrorism Prosecution in the United Kingdom

Lessons in the Manipulation of Criminalization and Due Process

Published online by Cambridge University Press:  05 June 2014

Clive Walker
Affiliation:
School of Law, University of Leeds
Fionnuala Ni Aoláin
Affiliation:
University of Minnesota School of Law
Oren Gross
Affiliation:
University of Minnesota School of Law
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Summary

CONSISTENT WITH HIS “WAR ON TERROR” PARADIGM, President George W. Bush asserted that “it is not enough to serve our enemies with legal papers.” Resonant with this view, although also reflecting its own rich legal history of counterterrorism, the United Kingdom's primary legal focus in the immediate aftermath of 9/11 was weighted more toward executive interventions than court-based criminal prosecution. The immediate emanation of “executive intervention” was the detention without trial of foreign terror suspects, a measure characteristic of executive intervention in that it was on the basis of the evaluation of future risk by a government minister rather than exhaustive proof of a past crime before a court. However, this vying between executive action and criminal prosecution never pitched as decisively in favor of executive action as in the United States and is now fading in United Kingdom domestic law. The first part of this chapter will examine the foundations for the reinvigoration of the criminal justice paradigm. This aspect advances this book's inquiry into exceptional courts, as it posits the alternative approach that regular models of criminal justice can and should predominate in counterterrorism. Next, this chapter will explore the salient implications to date for British criminal justice, particularly questioning the extent to which the delivery of criminal justice has remained “regular” or whether elements of exceptionality have insinuated themselves within the process. The final part of this chapter will reflect on the future implications, followed by wider reflections.

Type
Chapter
Information
Guantánamo and Beyond
Exceptional Courts and Military Commissions in Comparative Perspective
, pp. 245 - 266
Publisher: Cambridge University Press
Print publication year: 2013

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References

Walker, Clive, Keeping Control of Terrorists without Losing Control of Constitutionalism, 59 Stan. L. Rev. 1395 (2007).
Jackson, John, Vicious and Virtuous Cycles in Prosecuting Terrorism: The Diplock Court Experience, in this volume.
Chamberlain, Martin, Update on Procedural Fairness in Closed Proceedings, 28 Civ. Just. Q. 448 (2009)
Harten, Gus Van, Weaknesses of Adjudication in the Face of Secret Evidence, 13 Int'l J. Evidence & Proof 1, 15–17 (2009).
Gross, Oren, Chaos and Rules: Should Responses to Violent Crisis Always Be Constitutional?, 112 Yale L. J. 1011 (2003)
Posner, Eric A. and Vermeule, Adrian, Emergencies and Democratic Failure, 92 Va. L. Rev. 1091 (2006).
Robertson, Geoffrey, Fair Trial for Terrorists?, in Human Rights in the “ War on Terror169 (Wilson, Richard A. ed., 2005).Google Scholar

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