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Published online by Cambridge University Press: 22 June 2018
Contemporary British counter-terrorist legislation is dominated by ‘counter-law’ in Richard Ericson's terms: by using law against law, it systematically undermines the rule of law. This paper supports this proposition by developing a detailed ‘archetypal’ account of the rule of law considered as a critical ideal, drawing on Fuller's ‘morality of law’. The rule of law is identified with four tendencies in law – towards greater universality, knowability, followability and justifiability – and ‘counter-law’ with tendencies to block or reverse all of these. Counter-law tendencies in contemporary counter-terrorist legislation are discussed in detail, with particular reference to the proliferation of inchoate, preparatory and situational offences. This critique is also related to contemporary debates on law and counter-law; it is argued that critiques which relativise or historicise the liberal model of the rule of law fall short by failing to engage with it on its own terms, thereby undervaluing its utility as a normative resource. The paper concludes by discussing the range, significance and gravity of the departures from the rule of law that have been identified, considering some counter-arguments and drawing conclusions for policy-makers and legal scholars.
For inspiration, encouragement and advice – some of which I heeded – my thanks go to Rob Knox, Matthew Kramer, Nicola Lacey, Stuart Macdonald, Jorge Nuñez, Nigel Simmonds and two anonymous reviewers.
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34 Ibid, p 145.
35 Ibid, p 11.
36 Cf Dyzenhaus: ‘[o]ne assumes its truth to bring the legal order closer to the ideals which underpin it’: D Dyzenhaus ‘The state of emergency in legal theory’ in Ramraj et al, above n 4, p 84.
37 Simmonds, above n 23, p 195.
38 Ibid, p 142.
39 Compare Farmer: ‘The principle of individual autonomy also demands respect for a sphere within which individuals can develop their own life choices’: Farmer Making, above n 8, p 113.
40 ‘The commitment to what we might call the modality of law, however imperfectly realized in practice, both shapes and constrains the way that certain ends can be brought about and, arguably, also entails a commitment to a certain form of human agency’: Farmer Making, above n 8, p 24.
41 Lacey In Search, above n 8, p 198.
42 Lacey ‘Philosophy, political morality and history’, above n 8, at 1086 and 1078.
43 Lacey In Search, above n 8, p 164.
44 Fuller, above n 21, p 96 and passim.
45 Ashworth and Zedner, above n 5, pp 96–102.
46 K Roach ‘The criminal law and terrorism’ in Ramraj et al, above n 4, p 137.
47 Crown Prosecution Service ‘Successful prosecutions since the end of 2006’ (2017), available at www.cps.gov.uk/counter-terrorism-division-crown-prosecution-service-cps-successful-prosecutions-end-2006, last accessed 20 May 2018.
48 Referred to as ‘substantive-inchoate’ offences in Roberts, above n 4.
49 Multiply-inchoate offences of this type are discussed in Macdonald ‘Understanding anti-terrorism policy’, above n 4, and Macdonald ‘Cyberterrorism’, above n 7.
50 Both the former common law offence of incitement and the ‘encouragement or assistance’ offences created by the Serious Crime Act 2007 (ss 44–46) require that the defendant either intended an offence to be committed as a result of her action or believed that this would be the result.
51 Established in R v Faraz [2012] EWCA Crim 2820.
52 Ashworth and Zedner refer to these offences as ‘preparatory or pre-inchoate’: Ashworth and Zedner, above n 5, pp 98–99. Ramsay's discussion of ‘preinchoate offences’ in ‘Pashukanis’, above n 11, includes both these and the situational offences addressed below. Walker groups together inchoate, preparatory and situational offences as ‘precursor offences’: Walker, C Terrorism and the Law (Oxford: Oxford University Press, 2011)Google Scholar.
53 Ashworth and Zedner, above n 5, p 112.
54 Ramsay ‘Pashukanis’, above n 11, at p 202.
55 Ibid.
56 Ramsay ‘Preparation offences’, above n 11, at p 212.
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58 Ibid.
59 Quoted in H Carter ‘Jihad recruiters jailed after anti-terror trial’ (The Guardian, 9 September 2011).
60 R v Farooqi and Others [2013] EWCA Crim 1649. But see the discussion of charging decisions under s 5 in R v Kahar and Others [2016] EWCA Crim 568.
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64 Firearms Act 1968, s 5.
65 Misuse of Drugs Act 1971, s 28(3).
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69 R v G, R v J [2009] UKHL 13.
70 Farmer Making, above n 8, p 191.
71 Prevention of Terrorism (Temporary Powers) Act 1974, s 9(1).
72 B Golder and G Williams ‘What is “terrorism”? Problems of legal definition’ [2004] UNSW LJ 22 cites this definition as exemplifying ‘the problems of defining terrorism in a general, deductive manner’ (emphasis in original). See also Rowe, J ‘The Terrorism Act 2000’ [2001] CLR 527Google Scholar; Walker, C ‘Briefing on the Terrorism Act 2000’ (2000) 12(2) Terrorism and Political Violence 1CrossRefGoogle Scholar; Walker, C Blackstone's Guide to the Anti-Terrorism Legislation (Oxford: Oxford University Press, 2009)Google Scholar.
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74 The terrorist motive is thus ‘an aggravation of blameworthiness which justifies a special criminalization regime’; Lacey, above n 8, p 153.
75 ‘The fact that a person kills with a political purpose may exacerbate the wrongness of their conduct or it may ameliorate or even justify attacking others, depending on the quality of the purpose and the quality of the act done in service of it’: Hodgson and Tadros, above n 4, at 507–508.
76 See E Kurtulus ‘Terrorism and fear: do terrorists really want to scare? Critical studies on terrorism’ online ahead of publication, DOI: 10.1080/17539153.2017.1329080. But compare B Saul Defining ‘Terrorism’ to Protect Human Rights (2006) FRIDE Working Paper 20, p 15: ‘it is inherent in the term “terrorism” that any definition must reflect that some person, or group of people, felt terror or were intended to feel terror. Otherwise, the term becomes disassociated from its linguistic origin and its ordinary or plain textual meaning’ (emphasis in original).
77 Walker ‘Briefing’, above n 72, at 9.
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79 Statutory definitions of riot, violent disorder and affray hinge on the use or threat of unlawful violence (Public Order Act 1986, ss 1–3).
80 Compare Alexander and Ferzan, above n 5, at 10: ‘A retributivist case for punishing inchoate crimes … ultimately must rest on the premise that intending a future culpable act is itself a culpable act’.
81 ‘the “acts of terrorism” which form the ostensible object of public concern … are acts which are already proscribed’: Lacey In Search, above n 8, pp 152–153.
82 V Dodd ‘Soldier jailed for making nailbomb avoids terror charge’ (The Guardian, 28 November 2014).
83 Crown Prosecution Service (2014) ‘Soldier who made nail bomb jailed for two years’ 28 November; online at http://www.cps.gov.uk/news/latest_news/soldier_who_made_nail_bomb_jailed_for_two_years/, last accessed 11 July 2017.
84 Ibid.
85 R v Tabbakh [2009] EWCA Crim 464.
86 Discussed in Macdonald, above n 4.
87 Greene, above n 4, at 790.
88 Greene, above n 4, at 791.
89 ‘as a matter of law an act ought to be identifiable as terrorist and therefore criminal at the time it is committed’: Greene, above n 4, at 783. See also Duff: ‘The definition of any crime should … specify something that could legitimately be classed as a public wrong for which the perpetrator should have to answer in a criminal court’: Duff ‘Perversions and subversions of criminal law’ in Duff et al Boundaries, above n 2, p 97.
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94 R v G, R v J [2009] UKHL 13.
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106 Stuntz, above n 13, at 579–580.
107 See discussion in Ramsay ‘Preparation offences’, above n 11, at 220.
108 See nn 83–87 above and accompanying text.
109 R v Farooqi and Others [2013] EWCA Crim 1649.
110 R v Karim [2011] EWCA Crim 2577.
111 See Waldron, above n 4, especially at 200–204.
112 Zedner, above n 4 (‘tenets’ at 119).
113 Duff, above n 89, p 110.
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115 ‘[D]angerousness and culpability are independent of one another, and each can be present in the absence of the other. We punish people because they are culpable, whereas we restrain people, when we do so, because they are dangerous’: Alexander and Ferzan, above n 5, at 11.
116 See Fenwick and Phillipson's comparison of counter-terrorism post-1974 and post-2000 (‘the counter-terrorist scheme post-2000 … is more extensive than in the worst years of Irish terrorist violence’): H Fenwick and G Phillipson ‘Legislative over-breadth, democratic failure and the judicial response: fundamental rights and the UK's anti-terrorist legal policy’ in Ramraj et al, above n 4, p 459.
117 ‘The distinction between law and police is therefore stark and fundamental … The ideal of the law state was defined against the reality of the police state’: Dubber ‘Preventive justice’, above n 13, p 63.
