Contagion, Counter-Terrorism and Criminology: Justice in the Shadow of Terror [1st ed. 2019] 978-3-030-12321-5, 978-3-030-12322-2

Table of contents :
Front Matter ....Pages i-xv
Introduction: Counter-Terrorism and the ‘Contagion Thesis’ (Claire Hamilton)....Pages 1-13
Counter-Terrorism in the UK (Claire Hamilton)....Pages 15-47
Counter-Terrorism in Poland (Claire Hamilton)....Pages 49-74
Counter-Terrorism in France (Claire Hamilton)....Pages 75-108
A Precautionary Consensus? (Claire Hamilton)....Pages 109-128
Contagion, Counter-Terrorism and Criminology: Strategies for Contestation? (Claire Hamilton)....Pages 129-145
Back Matter ....Pages 147-162

Citation preview

CRIME PREVENTION AND SECURITY MANAGEMENT

Contagion, Counter-Terrorism and Criminology Justice in the Shadow of Terror

Claire Hamilton

Crime Prevention and Security Management

Series Editor Martin Gill Perpetuity Research Tunbridge Wells, Kent, UK

It is widely recognized that we live in an increasingly unsafe society, but the study of security and crime prevention has lagged behind in its importance on the political agenda and has not matched the level of public concern. This exciting new series aims to address these issues looking at topics such as crime control, policing, security, theft, workplace violence and crime, fear of crime, civil disorder, white collar crime and anti-social behaviour. International in perspective, providing critically and theoretically-­informed work, and edited by a leading scholar in the field, this series will advance new understandings of crime prevention and security management. More information about this series at http://www.palgrave.com/gp/series/14928

Claire Hamilton

Contagion, Counter-­ Terrorism and Criminology Justice in the Shadow of Terror

Claire Hamilton Department of Law Maynooth University Kildare, Maynooth, Ireland

Crime Prevention and Security Management ISBN 978-3-030-12321-5    ISBN 978-3-030-12322-2 (eBook) https://doi.org/10.1007/978-3-030-12322-2 © The Editor(s) (if applicable) and The Author(s) 2019 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover illustration: GettyImages-596696149 This Palgrave Pivot imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

To my Parents

Series Editor’s Preface

Contagion, Counter-Terrorism and Criminology traces the development of counter-terrorism legislation and finds it wanting in many important aspects. The book’s central tenet is an examination of the process of ‘contagion’; specifically where legal developments in counter-terrorism have had a contagious negative impact on areas Claire Hamilton refers to as ‘ordinary’ criminal justice. It also explores ‘the synergistic relationship between counter-terrorism measures and control measures aimed at “ordinary” crimes’. That said, contagion can also operate both ways— those responses developed in the ordinary criminal realm can migrate, sometimes inappropriately, to the counter-terrorism field. The book compares and contrasts three countries: the UK, France and Poland. Each has different experiences of terrorist activity, and different political cultures and legal traditions. By reviewing each country individually, Hamilton argues that legal processes presented as remedies for tackling terrorism have had a much broader impact than solely tackling terrorism, and contagion has taken many forms. You will read, for example, about broader drafting leaving open the potential for different types of abuses to occur, not least by diluting safeguards and posing a threat to human rights. Hamilton treats each country as a case study. In the UK you will read about expanded surveillance powers being justified as being in the interest of ‘national security’. There is an analysis of the criminalisation of vii

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‘super inchoate’ offences aimed at reducing the risk of terrorism before it happens, but which also run the different risk of ‘overreach’ and, in practice, ‘misuse police powers … to little effect’. France has frequently experienced home-grown terrorist groups and transnational terrorism. Hamilton argues that, while to some observers it may have given the impression of avoiding an invasive legislative approach, ‘objectionable’ intelligence gathering and the allocation of powers to less-accountable bodies has taken place. Poland—in contrast to the UK and France—has never experienced serious terrorist threats but has legislated because of the attacks in other European states. She argues that this was used as a justification ‘to pass their repression off as “counter-terrorism”’. As Hamilton develops the analysis, she argues that the three countries have adopted a worrying set of similarities: supporting ‘all-risks’ policing, mass surveillance, broadly drafted legislation, a growing range of precursor offences and increasingly resorting to administrative, over judicial, authority. She laments that these developments have occurred largely outside of the gaze of criminologists, and encourages their involvement to help avoid the drift towards securitisation. This important book will be an essential read for all those interested in the role of the law in tackling crime generally, counter-terrorism specifically, and in the protection of human rights. May 2019

Martin Gill

Acknowledgements

Research is a collaborative effort and I owe a great debt to my postgraduate researcher, Dr Giulia Berlusconi, who worked tirelessly on the project for 15 months. Thanks must also go to the interviewees in France and Poland who so generously gave of their time and provided us with invaluable insights into the rapidly evolving situation in their respective jurisdictions. I am tremendously grateful to the Irish Research Council who funded this project through their New Horizons scheme. Last, but far from least, profound thanks must go to my husband, Brendan, and my lovely family for their never-ending patience and support.

Contents

1 Introduction: Counter-Terrorism and the ‘Contagion Thesis’  1 2 Counter-Terrorism in the UK 15 3 Counter-Terrorism in Poland 49 Giulia Berlusconi and Claire Hamilton Counter-Terrorism in France 75 4 A Precautionary Consensus?109 5 6 Contagion, Counter-Terrorism and Criminology: Strategies for Contestation?129 I ndex147

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Table of Statutes European conventions Council of Europe Convention on the Prevention of Terrorism (2006) European Convention on Human Rights (ECHR)  Article   5 (1)(f)   8 European legislation Council framework decisions  2002/584/JHA  2008/919/JHA Directives  2017/541 Regulations  2580/2001 (EC) French legislation Acts/Lois  86–1020  96–647  2001–1062  2003–239  2004–204  2006–64  2012–1432  2014–1353  2015–912  2015–1475  2015–1501  2016–731  2016–987  2017–258  2017–1510 Criminal procedural code  Article   695–11   695–51   706–73-1   706–90 Press Law 1881

2: 12 2: 1, 6–7 2: 6 2: 20

3: 6, 7, 4: 12, 5: 9, 11 3: 7, 4: 12, 5: 9, 11 2: 12, 4: 12, 5: 10 2: 13–14

4: 2 4: 2 4: 4–5, 20 4: 5, 16, 20 4: 5–6, 12, 20–21, 25 4: 6 4: 7 4: 7–8, 12, 18, 5: 5, 10 4: 8, 13–15, 25 4: 8–9 4: 9, 23 4: 9–10, 21, 22, 23, 5: 4 4: 10 4: 10–11 4: 11, 23–24, 5: 3, 5–6 4: 3, 23 4: 12 4: 12 4: 20, 22 4: 23 4: 12 (continued )

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(continued) Polish legislation Counter-Terrorism Act 2016 Criminal Procedural Code  Article   115   168a3   255a   258 Law on Foreigners 2003 Police Act 2016 UK legislation Anti-Terrorism, Crime and Security Act 2001  Part 4  s. 44 Counter-Terrorism Act 2008  Part 3  Part 4 Counter-Terrorism and Security Act 2015  Part 1  Part 2  Part 5  s. 1 Criminal Evidence Order Northern Ireland (1988) Criminal Justice and Public Order Act 1994 Extradition Act 2003 Human Rights Act 1998 Investigatory Powers Act 2016  Part 4  s. 44 Prevention of Terrorism (Temporary Provisions) Acts Prevention of Terrorism Act 2005 Proceeds of Crime Act 2002 Protection of Freedoms Act 2011 Protection of Freedoms Act 2012  ss. 59–62 Terrorism Act 2000  s. 44 Terrorism Act 2006  Part 1  s. 1  s. 5  s. 8

3: 10, 13–17, 5: 4–5

3: 6 3: 10 3: 7 3: 15–16 3: 8–9 3: 8, 16–17, 18 ∗ 2: 5, 6, 16, 19, 25 2: 6, 7, 23 2: 6–7 2: 8, 27, 5: 12 2: 8 2: 8 2: 4–5, 9–10, 12, 20, 25, 28, 5: 8, 10 2: 9 2: 9 2: 9 2: 20 2: 2 2: 2 2: 12, 13 2: 6–7 2: 17–19, 5: 4 2: 19 2: 19–20 2: 2 2: 6–7 2: 25 2: 8 2: 20 1: 6 2: 8, 11, 16, 5: 8, 11 1: 6, 2: 19–20, 5: 3 2: 7–8, 12, 26, 5: 12 2: 7–8 2: 21 2: 8, 22 2: 8 (continued )

  Table of Statutes  (continued) Terrorist Prevention and Investigation Measures Act 2011  s. 2  s. 5  s. 6  Schedule 1 Bills Communications Data Bill 2016 Counter-Extremism and Safeguarding Bill 2016 Counter-Terrorism and Border Security Bill 2018 UN Security Council Resolutions  1373  2178

2: 9 2: 9 2: 9 2: 9 2: 9 2: 18 2: 10 2: 5, 10, 22, 27, 5: 12

3: 5 4: 7, 12

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1 Introduction: Counter-Terrorism and the ‘Contagion Thesis’

Abstract  This chapter outlines the motivation for the research, which arose from concerns about the impact of counter-terrorism on the direction of travel of the criminal justice system more broadly, and in particular a perceived lacuna in the criminological literature concerning the influence of counter-terrorism on European crime control policy. It also operationalises the ‘contagion’ concept as it is examined in the book and provides a justification for the three case studies selected, namely, the UK, France and Poland. The chapter concludes with an outline of the plan of the book. Keywords  Contagion • Counter-terrorism • Criminal justice • Comparison

Europe’s Expanding Security State Ethnographic research aside, it’s not often that criminologists (at least those in the privileged Global North/West) get to experience the receiving end of the policies they are critiquing. As the title of the book suggests, © The Author(s) 2019 C. Hamilton, Contagion, Counter-Terrorism and Criminology, Crime Prevention and Security Management, https://doi.org/10.1007/978-3-030-12322-2_1

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however, the counter-terrorism net is being cast increasingly widely, covering the ‘friends of my enemy’ and, through enhanced security ­measures, everyone (Lennon and Walker, 2016). And so, while conducting the research for this book in Poland, I found myself the source of some commotion as the train we were travelling on stopped suddenly mid-­route. The issue, I soon discovered, was that my bag had in fact been placed in an interconnecting carriage on account of it being too large for the overhead lockers, prompting an officious conductor to call the police to investigate. Luckily a passport contained in the front pocket had prevented the baggage from being destroyed and, having been quizzed by the Polish police as to my identity, I was allowed to return red-faced to the rest of the passengers. What is interesting about this incident—aside from the fact that I should probably travel lighter!—is the hyper-­ sensitivity of the authorities to terrorist threats in a country with little history of terrorist attacks, and barely any jihadist terrorism. In the course of the research for our Polish trip we found no news reports of any recent terrorist incidents—bar a frustrated (non-jihadist) attack on the Polish Parliament in 2012—and, in its 2016 Terrorism Situation and Trend Report, Europol reported only 4 arrests of jihadist terrorists in Poland, compared to 377 in France or 40 in Italy. Despite these low threat levels Poland had introduced at the end of 2015 and beginning of 2016 a welter of legislation enhancing police and surveillance powers in an ostensible effort to combat terrorism. The effect, as one respected member of the Polish judiciary told Amnesty International (2017: 19), is ‘more than just taking a sledgehammer to crack a nut. It appears to be an intentional, deliberate act, arming the executive with powerful tools to fight, for instance, those who hold differing views.’ Yet Poland is not alone. The opening paragraphs of the same report, with its bird’s eye view of counter-terrorist legislation in Europe since 2015, are stark in their message: Individual EU states and regional bodies have responded to the attacks by proposing, adopting and implementing wave after wave of counter-­ terrorism measures that have eroded the rule of law, enhanced executive powers, peeled away judicial controls, restricted freedom of expression and exposed everyone to government surveillance. Brick by brick, the edifice of

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rights protection that was so carefully constructed after the Second World War is being dismantled. (Amnesty International, 2017: 6)

Overreach is also the by-word (and indeed title) of the 2017 Human Rights Watch World Report (2017). For them, the recent spate of sweeping counter-terrorism measures worldwide continues to ‘invite overreach’, with too many countries dispensing with judicial review and other critical checks against abuse. Given the febrile state of European politics and the rise of far-right nationalist parties, counter-terrorist legislation, often at the behest of international organisations such as the UN Security Council or European Union, has provided abundant opportunities for authoritarian states to pass their repression off as ‘counter-terrorism’ (Gearty, 2017: 428). The abuse of this legislation to prosecute migrants in jurisdictions such as Hungary, where sentences of ten years have been handed down for acts of ‘terror’, is a case in point.1 The publication of a study on contagion and the impact of counter-­ terrorism legislation on the justice system more broadly therefore appears particularly timely. There is little doubt that the spate of terrorist attacks in France, Germany, Belgium and the UK in recent years, and the legislation which has followed, has rendered the topic of contagion particularly salient for criminologists. The motivation for the research, however, stemmed from longer-held concerns about the impact of counter-­ terrorism on the direction of travel of the criminal justice system more broadly, particularly a perceived lacuna in the criminological literature concerning the influence of counter-terrorism on European crime control policy (Hamilton, 2018). While legislative and executive responses to terrorism in the US were often held up as archetypical examples of the extremes of ‘punitive populism’ (Bottoms, 1995), lesser appreciated perhaps was the impact of permanent, and expansive, counter-terrorism law and policy on the penal trajectory of the European Union (EU) (though see Murphy, 2012; Galli, 2015). In their book on Europe and punitiveness, for example, Dumortier et al. (2012: 110) observed that post-9/11 counter-terrorism measures had acted as a ‘turbo’ to the penalisation engine in Europe, resulting in a significant escalation of the punitive climate in Europe. Baker (2010: 206) similarly, in an in-depth review, had identified various drives towards securitisation within the European

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Union as placing Europe somewhere ‘on the brink’ of American-style punitiveness (see also Hosein, 2005 on privacy rights in Europe). Such conclusions point to the need for a detailed empirical (and theoretically informed) exploration of the impact of counter-terrorism measures on the penal trajectories of EU countries. It is against this context that the research presented in this book aims to present an analysis of the impact of counter-terrorism measures on the criminal justice systems of three selected EU countries with varying histories and experience of terrorism, namely, the UK, France and Poland. The aim is to, first of all, map and evaluate the extent to which a process of ‘contagion’ has occurred from the counter-terrorism to the ‘ordinary’ criminal justice spheres. In particular, the book explores the synergistic relationship between counter-terrorism measures and control measures aimed at ‘ordinary’ crimes. It probes the hegemonic power of terrorism and the securitisation agenda more generally and, in the final chapters, discusses the implications for criminology as a discipline—does it, for example, have a role in the social contestation of contagion? Secondly, the research asks questions about the extent to which we can talk about a consensus or cohesion among the three Member States in terms of their approach to counter-terrorism. If so, is this driven by European Union-­ level initiatives or the Member States themselves? To what degree are these contagion effects mediated by Member State penal culture and history/experience of terrorism?

The ‘Contagion Thesis’ Many different labels have been applied to describe the ‘contagion’ phenomenon, among them normalisation (Kilcommins and Vaughan, 2004), creep (Appleby and Williams, 2010), contamination (Fenwick and Phillipson, 2011) and transplantation (Donohue, 2012). ‘Contagion’, however, appeared to us the most appropriate term given the seriousness with which it conveyed the threat to the ordinary criminal justice system. A medical metaphor with its obvious connotations for public health also appeared to us to communicate more effectively the risks associated with the spread of policies not only in time (in terms of temporary legislation becoming permanent) but also cross-sectorally.

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The legal literature on ‘contagion’, ‘transplantation’ or the transfer of counter-terrorist laws to other areas, has burgeoned since 9/11 (Donohue, 2008, 2009, 2012; Gross, 2003, 2006; McGarrity et al., 2010), drawing on an earlier body of work examining the impact of the Northern Irish conflict on criminal justice systems on either side of the border (Hillyard, 1983, 1993; Kilcommins and Vaughan, 2004; Vaughan and Kilcommins, 2008; Walsh, 1989). The categories outlined below are therefore informed by this literature, particularly the work of Laura Donohue (2012) who through her typology of ‘transplantation’ has probably done most to attempt to outline the contours of the phenomenon. The first category can be broadly described as the potential of terrorism to leverage broader, usually controversial reforms. It barely needs stating that the ‘politics of fear’ (Kostakopoulou, 2008: 321) ensuing in the period following the commission of a terrorist attack may also represent something of a ‘window of opportunity’ for governments with the heat of the emergency providing convenient political cover for previously controversial legislative measures. Den Boer (2006), for example, has questioned whether the 9/11 attacks were used by the European Union as a means of legitimising the rapid adoption of highly contentious measures and technologies of security governance (Hassan, 2010). Walker (2006: 1143) has made similar observations in respect of the UK’s response to the Twin Tower attacks, describing the legislation as ‘opportunistic changes that would not have been sustained outside a period of crisis’. Even outside of the reaction-politics engendered by a terrorist attack, criminologists have observed the use of serious crimes such as organised crime and terrorism as a ‘picklock’ for the introduction of controversial legislation that would otherwise be obstructed (Fijnaut and Paoli, 2004: 5; see also Cesoni, 2007). Significantly, these authors have also observed that since the 9/11 attacks terrorism has begun to replace organised crime in the extension and consolidation of the droit d’exception (exceptional law). A related, yet distinct, form of contagion can be identified as that deriving from counter-terrorism provisions specifically aimed at terrorism and its related offences, yet broadly drafted and therefore susceptible to abuse. While equally pertaining to what Donohue (2012: 71) terms ‘a lack of specificity in the initial statutory authorities’, this type of conta-

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gion does not seek to apply exceptional security provisions to areas unrelated to terrorism, but rather to target terrorism and terrorist-related behaviour through broadly drawn (‘blank cheque’) legislation (Donohue, 2012: 71). The contagion—to non-terrorist crimes—thus occurs in the implementation phase although it is a direct consequence of the drafting process (Donohue, 2008). One of the best-known examples of this type of contagion in Britain is perhaps the use of section 44 of the Terrorism Act 2000, which introduced powers to stop and search without the need for any prior suspicion in areas where it was considered ‘expedient’ for the prevention of acts of terrorism, and which has been used extensively against protestors, journalists and civilians (Fenwick and Phillipson, 2011). Indeed, by the time of its amendment under ss. 59–62 of the Protection of Freedoms Act 2012, following a challenge in the European Court of Human Rights, hundreds of thousands of searches had been carried out under this provision without any recorded convictions for terrorism (Hodgson, 2013). The final category concerns the role of counter-terrorism legislation in diluting core procedural safeguards (Zedner, 2007). The inclusion in such legislation of exceptional measures limiting procedural rights means that courts are often called upon to address constitutionality concerns and to approve constitutional limits on policing, especially when the provisions are broadly or vaguely worded. However, as observed by Stuntz (2002), such limits are also transubstantive, in that they are not limited to terrorist suspects but rather apply equally to all suspects. When a court approves derogations from procedural safeguards in the name of security, such derogations become equally applicable outside the counter-­terrorism domain, creating a new constitutional or legislative template, and thereby becoming ‘the new normalcy’ (Donohue, 2009; Kilcommins and Vaughan, 2004; Stuntz, 2002; Vaughan and Kilcommins, 2008). Important here also is the bureaucratic tendency to return to old law and order solutions to the extent that governments reconfigure the problem to match the solutions they have already prepared (Bigo, 2002; Cahn, 2010). By becoming the yardstick against which legislators and the public measure their ability to counteract other serious crime, powers previously described as ‘extraordinary’ or even ‘draconian’ become part of the

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everyday administration of justice (Cobane, 2003; Hillyard, 1987; Kilcommins and Vaughan, 2004). While the three categories outlined above form distinct groupings in terms of their effects on the criminal law and other areas, they are not, however, rigid. As will be discussed in later chapters, sometimes two or more forms of contagion may combine and overlap, thereby working together to further entrench counter-terrorist law in the mainstream system (Donohue, 2009: 378).

Who to Compare and Why? Comparative research, even in a small number of jurisdictions, is valuable as it permits theories to be tested across political, social and cultural boundaries and also varied historical contexts (George and Bennett, 2005). In the current study the countries were selected based on a ‘most-­ different’ (Pakes, 2015) design in order to test the validity of the ‘contagion’ thesis across a range of different settings. The most important differentiating factors in this regard were experience of terrorism and membership of the European Union so that the comparator countries include both older democracies/established Member States of the European Union with long histories of responding to terrorism (England and France) and newer democracies/members with little exposure to the phenomenon (Poland). Of course, even in Britain and France, both countries with over 60 years’ experience of terrorism, the nature of the terrorist threat differed considerably; while the UK was affected mainly by national separatist groups, in France the threat assumed a distinctly international nature, namely, terrorist attacks emanating mainly from the Middle East (Galli, 2015). The countries also differ considerably in their approach to emergency powers. While in the UK the conflict in Northern Ireland has produced a large body of post-war emergency legislation, Britain has mainly used its ordinary courts to deal with suspected Al-Qaeda terrorists. The French authorities, on the other hand, have consistently relied on special courts and exceptional counter-terrorism procedures within their judicial system, drawing on emergency rules introduced in 1986 and extended in 1996 (Foley, 2013). These different histories

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and traditions crucially inform their current position in relation to counter-­terrorism so that for some 9/11 was not such a marked break. Additionally, the three countries can be said to differ on many of the variables that may be expected to influence a country’s counter-terrorism policy such as: political culture, legal tradition (common law vs civil law) and GDP. Poland, in particular, held much interest for our work given its relative inexperience of terrorism and the low terrorist threat level in the country. Given our concern with the European Union’s role in driving securitisation within Europe, Poland appears to be much more of a ‘blank sheet’ in terms of counter-terrorism, and thus a jurisdiction where supranational influences may be greatest. Of particular note in this regard is its enthusiastic embrace of the European Arrest Warrant—the ‘jewel in the Crown’ (Douglas-Scott, 2004: 223) of European counter-terrorist measures— including its heavy use of the EAW to extradite individuals for relatively minor crimes (House of Commons, 2015). Given the links between security measures and punitiveness (discussed above), this raises interesting questions about the manner in which the counter-terrorism and security measures emanating from the EU were interacting with what Krajewski (2013) and others term an ‘old-style punitiveness’ inherited from the communist past. The research was undertaken through a desk-top analysis of EU and Member State counter-terrorism law and policy. For the most part this included legal analysis of the relevant counter-terrorist legislation, including review of related legal and criminological literature, official reports, books and reports by experts and non-governmental organisations (NGOs) (e.g. Amnesty International) and historical newspaper reports. Where relevant these findings are supplemented by interviews conducted with French and Polish academics and civil society representatives during visits to these two countries in 2017. Given that counter-terrorism is an area of study which is constantly in flux, these visits were considered necessary to inform ourselves on both the context and the impact of the legislative changes, particularly given the paucity of any English-language literature on the topic.

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Plan of the Book Chapters 2, 3 and 4 of the book begin empirical analysis of counter-­ terrorism measures in each of the countries between 2001 and 2017. The time period is limited to the post-9/11 period given strong suggestions in the literature that counter-terrorism measures adopted in the wake of the Twin Tower attacks expedited drifts towards securitisation on both sides of the Atlantic (Hassan, 2010). For each of these chapters, the discussion falls into two parts: the first traversing developments in counter-terrorism law and policy over the period, including the historical development of counter-terrorism law and policy in the three Member States prior to 2001, and the latter part assessing—in broad trajectory—the types of contagion according to the categories outlined above. Where available, in addition to the analysis of primary and secondary legal materials (academic and policy literature), quantitative data will be presented relating to the operational impact of counter-terrorism powers across the three countries. For example, in the French context, data will be presented on the use of emergency measures under the state of emergency declared in November 2015 (house searches, orders for house arrest, bans on demonstrations, etc.), including the number of prosecutions brought on foot of those measures. Chapter 5 pulls the previous three chapters together in a discussion about counter-terrorism policy trends in Europe. Particular attention is paid to the degree to which counter-terrorist law and policy has converged or diverged since 9/11, including the role of the European Union and UN Security Council in facilitating policy convergence and the role played by policy transfer. The concluding chapter moves from this analysis to argue that a contagion effect from the counter-terrorist to the ordinary criminal justice sphere occurs through a variety of subtle mechanisms which merit greater scrutiny by criminologists. With the seepage of extraordinary powers into other areas of the criminal law, the lines between crime and the more politicised terrain of the ‘emergency’ become blurred, thereby problematising analyses which tend to rely on this binary. The research findings require further criminological reflection on the connections, both normative and practical, being forged between

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‘exceptional’ and ‘ordinary’ legal regime and the need for better engagement with security and counter-terrorism. Challenges and opportunities are discussed, including a potential role for criminology in the social contestation of contagion and securitisation. It is argued that the unique province of criminology is its ability to connect policies aimed at twenty-­ first-­century ‘super-terrorism’ (Lazarus and Goold, 2007) with broader debates on transformation in the penal field and the various political transformations which have gone before them (Loader, 2007). This is particularly important given arguments that purely legal conceptions of human rights, as the traditional antidote to security, are failing in their task of containing security as illustrated by the steady drift towards securitisation since 9/11 (Krasmann, 2012). The final section contemplates a potential way forward through the application of analytical concepts from the field of governmental criminology to human rights, thereby forging critical connections between contemporary appeals to security and the penological conditions that are crucial to their legitimation.

Note 1. See, for example, the case of Ahmed H, who was found guilty of involvement in an ‘act of terror’ after he threw some stones at the Hungarian border after police fenced off the crossing with Serbia. He was sentenced to seven years in prison. See: https://www.amnesty.org/en/get-involved/ take-action/ahmed-h/.

References Amnesty International (2017) Dangerously disproportionate: The ever-expanding national security state in Europe. London: Amnesty International. Appleby, G. and Williams, J. (2010) The anti-terror creep: Law and order, the states and the high court in Australia. In: McGarrity, N. and Williams, L. N. (eds) Counter-Terrorism and Beyond: The Culture of Law and Justice after 9/11. London: Routledge. Baker, E. (2010) Governing through crime? The case of the European Union. European Journal of Criminology, 7(3): 187–213.

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Bigo, D. (2002) L’impact des mesures anti-terroristes sur l’équilibre entre liberté et sécurité et sur la cohésion sociale en France. In: Bribosia, E. and Weyembergh, A. (eds) La lutte contre le terrorisme et les droits fondamentaux. Nemesis, Bruylant, Coll. Droit et justice no. 34. Bottoms, A. (1995) The philosophy and politics of punishment and sentencing. In: C. Clark and R. Morgan (eds) The Politics of Sentencing Reform. Oxford: Clarendon Press. Cahn, O. (2010) The fight against terrorism and human rights: The French perspective. In: Wade, M. and Maljevic, A. (eds) A War on Terror? New York: Springer. Cesoni, M. L. (ed.) (2007) Nouvelles méthodes de lutte contre la criminalité. La normalisation de l’exception. Brussels: Bruylant. Cobane, C. (2003) Terrorism and democracy: The balance between freedom and order: The British experience. PhD Thesis, University of Cincinnati, USA. Den Boer, M. (2006) Fusing the fragments: Challenges for EU internal security governance on terrorism. In: Mahncke, D. and Monar, J. (eds) International Terrorism: A European Answer to a Global Threat. Brussels: Peter Lang. Donohue, L. K. (2008) The Cost of Counterterrorism: Power, Politics, and Liberty. Cambridge: Cambridge University Press. Donohue, L. K. (2009) The perilous dialogue. Georgetown Public Law and Legal Theory Research Paper No. 12–028, Georgetown University. Donohue, L. K. (2012) Transplantation. In: Ramraj, V. V., Hor, M., and Roach, K. (eds) Global Anti-Terrorism Law and Policy. Cambridge: Cambridge University Press. Douglas-Scott, S. (2004) The rule of law in the European Union: Putting the security into the area of freedom, security and justice. European Law Review, 29(2): 219–242. Dumortier, E., Gutwirth, S., Snacken, S. and De Hert, P. (2012) The Rise of the Penal State: What Can Human Rights do about it?. In: Snacken, S. and Dumortier, E. (eds.) Resisting Punitiveness in Europe? Abingdon, Oxon; New York: Routledge. Fenwick, H. and Phillipson, G. (2011) Covert derogations and judicial deference: Redefining liberty and due process rights in counterterrorism law and beyond. McGill Law Journal, 56(4): 863–918. Fijnaut, C. and Paoli, L. (eds) (2004) Organized Crime in Europe: Concepts, Patterns and Policies in the European Union and Beyond. Dordrecht: Springer. Foley, F. (ed.) (2013) Countering Terrorism in Britain and France. Cambridge: Cambridge University Press.

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Galli, F. (2015) The Law on Terrorism: The UK, France and Italy Compared. Bruxelles: Bruyant. Gearty, C. (2017) Is the human rights era drawing to a close? European Human Rights Law Review, 5: 425–431. George, A. and Bennett, A. (2005) Case Studies and Theory Development in the Social Sciences. Cambridge, Mass.: MIT Press. Gross, O. (2003) Chaos and rules: Should responses to violent crises always be constitutional? Yale Law Journal, 112(5): 1011–1034. Gross, O. (2006) What ‘emergency’ regime? Constellations, 13(1): 74–88. Hassan, O. (2010) Constructing crises, (in)securitising terror: The punctuated evolution of EU counter-terror strategy. European Security, 19(3): 445–466. Hamilton, C. (2018) The European Union: Sword or Shield? Comparing counter-­terrorism law in the EU and USA after 9/11. Theoretical Criminology, 22(2): 206–225. Hillyard, P. (1983) Law and order. In: Darby, J. (ed.) Northern Ireland: The Background to the Conflict. Belfast: Appletree Press. Hillyard, P. (1987) The normalization of special powers: From Northern Ireland to Britain. In: Scraton, P. (ed.) Law, Order and the Authoritarian State. Milton Keynes: Open University Press. Hillyard, P. (1993) Suspect Community: People’s Experiences of the Prevention of Terrorism Act in Britain. London: Pluto Press. Hodgson, J. S. (2013) Legitimacy and state responses to terrorism: The UK and France. Legal Studies Research Paper No. 2013–30, Warwick School of Law. Hosein, G. (2005) Threatening the Open Society: Comparing Anti-Terror Policies in the US and Europe. London: Privacy International. House of Commons. (2015) The European Arrest Warrant (No. Briefing Paper No. 07016). London: House of Commons. Kilcommins, S. and Vaughan, B. (2004) A perpetual state of emergency: Subverting the rule of law in Ireland. Cambrian Law Review, 35: 55–80. Kostakopoulou, D. (2008) How to do things with security post 9/11. Oxford Journal of Legal Studies, 28(2): 317–342. Krajewski, K. (2013) Penal Development in Poland: New or Old Punitiveness? In: Daems, T., van Zyl Smit and Snacken, S. (eds.), European Penology?, Hart Publishing, Oxford. Krasmann, S. (2012) Law’s Knowledge: On the susceptibility and resistance of legal practices to security matters. Theoretical Criminology, 16(4): 379–394. Lazarus, L. and Goold, B. J. (2007) Security and human rights: The search for a language of reconciliation. In: Goold, B. J. and Lazarus, L. (eds) Security and Human Rights. Portland, OR: Hart Publishing.

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Lennon, G. and Walker, C. (eds) (2016) Routledge Handbook of Law and Terrorism. London: Routledge. Loader, I. (2007) The cultural lives of security and rights. In: Goold, B. J. and Lazarus, L. (eds) Security and Human Rights. Oxford: Hart Publishing. McGarrity, N., Lynch, A. and Williams, G. (eds) (2010) Counter-Terrorism and Beyond: The Culture of Law and Justice after 9/11. London: Routledge. Murphy, C. (2012) EU Counter-Terrorism Law, Oxford and Portland: Oregon. Pakes, F. (2015) Comparative Criminal Justice. London: Routledge. Stuntz, W.  J. (2002) Local policing after the terror. Yale Law Journal, 111: 2137–2194. Vaughan, B. and Kilcommins, S. (2008) Terrorism, Rights and the Rule of Law: Negotiating Justice in Ireland. London: Routledge. Walker, C. (2006) Clamping down on terrorism in the United Kingdom. Journal of International Criminal Justice, 4(5): 1137–1151. Walsh, D. P. J. (1989) The impact of the antisubversive laws on police powers and practices in Ireland: The silent erosion of individual freedom. Temple Law Review, 62: 1099–1130. Zedner, L. (2007) Preventive justice or pre-punishment? The case of control orders. Current Legal Problems, 60(1): 174–203.

2 Counter-Terrorism in the UK

Abstract  This chapter on UK counter-terrorism measures begins the book’s empirical analysis of post-9/11 counter-terrorism measures. It examines the historical development of counter-terrorism law and policy in the UK before engaging in a more detailed analysis of post9/11 legislation and the types of contagion to which it has given rise. Perhaps unsurprisingly, given the long experience of the UK with terrorism, and its history of normalisation of counter-terrorism powers, similar patterns can be observed in the post-9/11 period. Certainly in the years immediately following the attacks the government took the opportunity to expand various state powers for general crime control purposes and misused special police powers, to little effect. While this tendency appeared to wane as the 9/11 and 7/7 attacks lost their grip on the political imagination, dangerous precedents had already been set. Keywords  Contagion • Counter-terrorism • Criminal justice • UK

© The Author(s) 2019 C. Hamilton, Contagion, Counter-Terrorism and Criminology, Crime Prevention and Security Management, https://doi.org/10.1007/978-3-030-12322-2_2

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Introduction Beginning our empirical analysis of post-9/11 counter-terrorism measures is the EU Member State with the lengthiest record of domestic counter-terrorism law. As with the subsequent two chapters, we will examine the historical development of counter-terrorism law and policy in the UK prior to 2001 before engaging in a more detailed analysis of post-9/11 legislation and the types of contagion to which it has given rise. While the main focus is on developments at state level, in our examination of counter-terrorist legislation we have also discussed the impact of European Union-level initiatives on domestic law and policy. This reflects the, perhaps somewhat under-appreciated, role of the EU in the proliferation of enhanced security measures since 9/11 (Hamilton, 2018), and particularly their impact on matters ‘far beyond terrorism’ (Coolaset, 2010: 873).

Background The UK has ‘encountered more configurations and episodes of political violence than any other polity’ (Walker, 2004: 312). This experience has been derived from two primary sources: first, campaigns of political violence in British colonies such as Palestine, Kenya and Malaysia; and, secondly, Irish terrorism, particularly that perpetrated by paramilitary groups in Northern Ireland since the start of the ‘Troubles’ in 1969 (Syrett, 2015). Roach (2011) argues that the post-9/11 British response can only be understood in this historical context and identifies several characteristics that can be traced to the fight against Irish terrorism, such as proscription, speech regulation, administrative detention based on secret evidence, derogation from rights, and attempts to use immigration law as anti-terrorism law. While criminalisation rather than a military response has been the dominant strategy to Irish terrorism, ‘special’ criminal processes such as non-jury courts have arguably left an enduring stain on British criminal justice1 as well as entrenching emergency legislation in the statute book. The Prevention of Terrorism (Temporary

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Provisions) Acts, for example, remained in continuous use from the time of the Birmingham bombing in 1974 to the entry into force of permanent counter-terrorism legislation in 2001. Viewed from the instant perspective, there is thus plentiful evidence of normalisation, with anti-terrorist legislation taking on an air of permanence by the turn of the century, combined with the steady creep of emergency rules into the ordinary criminal justice system. One, frequently cited, example of the latter is the limits on the right of silence for terrorism suspects in respect of interrogation and cross-examination,2 introduced in Northern Ireland in 1988 and subsequently applied to all criminal suspects under the (UK-wide) Criminal Justice and Public Order Act 1994 (Zedner, 2009; see further Hillyard, 1994). In the late 1990s the need for permanent counter-terrorism legislation emerged as a consequence of the persistence of political violence in Northern Ireland, the threat of international terrorism, and the desire to withdraw the UK derogation from the European Convention of Human Rights (ECHR) (allowing up to five days preventive detention without judicial review). Following a review by Lord Lloyd (1996), the new legislation introduced inter alia: a new, sweeping definition of terrorism; a system of proscription of terrorist groups; powers of preventive arrest on suspicion; powers to conduct warrantless stops and searches; and a number of miscellaneous terrorism offences. One of the major innovations of the Act was the new definition of terrorism, as follows: (1) In this Act “terrorism” means the use or threat of action where (a) the action falls within subsection (2), (b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause. (2) Action falls within this subsection if it (a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person’s life, other than that of the person committing the action,

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(d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system. (3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1) (b) is satisfied. As one of the broadest definitions in the world, this definition grants unusually wide discretion to all those concerned with the application of the law, such as ministers, police and prosecutors.3 Despite the broad discretion that characterises the law, however, Roach (2011) observes that initial fears that the legislation would be used against animal rights, environmental and anti-globalisation protestors have largely not been realised, at least not in the UK.4 The many broad terrorism offences, on the other hand, have been frequently prosecuted in the courts, particularly possession-­based offences such as the section 58 offence of possession of articles that could give rise to a reasonable suspicion that they are connected with terrorism. In addition to a very broad actus reus, these offences were created using legal presumptions that place the burden on the accused to prove her/his innocence, thereby enabling conviction even in the absence of proof that the person had intent to commit a terrorist act (Hodgson and Tadros, 2009).

Counter-Terrorism After 9/11 Domestic Legislation As noted, echoes of Britain’s colonial past can be found in its post-9/11 response in that in the period immediately following the Twin Tower attacks the UK reverted to many of the methods it had historically employed against Irish terrorism, among them administrative detention based on secret evidence and formal derogations from rights (Roach, 2011). While this initial phase demonstrated a hostility to criminal justice

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and preference for executive interventions, most commentators now agree that the reaction to the 7/7 bombings in London in 2005, together with the growing realisation that most terrorists now are British citizens, somewhat paradoxically ushered in a second phase where prosecution became the primary strategy (Walker, 2013; Fenwick, 2013; Syrett, 2015). This was reflected in the statement of the then Home Office Minister Tony McNulty in 2008 that ‘prosecution is—first, second and third—the government’s preferred approach when dealing with suspected terrorists’.5 The apogee of this, more conciliatory approach to jihadist terrorism was the ‘correction in favour of liberty’ announced (following a Home Office review) by the Conservative-Liberal Democrat government in early 2011, which saw, among other initiatives, a reduction in the maximum period of detention to 14 days, restrictions on stop and search powers, and the replacement of control orders with a less restrictive TPIM (Terrorist Prevention and Investigation Measures) regime (HM Government, 2011). Scholarly opinion is more divided, however, on the departure, if any, from the criminal justice path marked by the introduction of the Counter-­ Terrorism and Security Act 2015 (CTSA). Syrett (2015) suggests that the measures included within the legislation, which appear to favour coercive non-trial based measures, represent something of a break with the ‘cautious rebalancing’ (Anderson, 2012: 4) of the previous years. He cites Liberty (2015: para. 2) in this regard who also lament what they view as a return to the ‘discredited trend of unnecessary and unjust blank cheque powers that have the potential to undermine long term security’. Fenwick (2013, 2015) agrees, suggesting a third phase of ‘normalisation’ of preventive measures has occurred through the introduction of an Enhanced Terrorism Prevention and Investigation Measures (ETPIMs) Bill in 20126 and the strengthening of the TPIM regime in 2015. As against this, Blackbourn and Walker (2016: 870) argue that the 2015 legislation simply represents a deepening of the government’s existing commitment to managing the risk of terrorism rather than a ‘wholly novel direction of travel’. While they convincingly point to evidence of a continued ­commitment to criminalisation (through, for example, the preference for criminal prosecutions over executive measures), as will be discussed further below, the consolidation and extension of the shadow system of jus-

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tice represented by the legislation undoubtedly merits close scrutiny (Zedner, 2007). Taking the above brief sketch as a point of departure, it is the aim of this section to traverse the major post-9/11 counter-terrorism statutes, ranging from the Anti-terrorism, Crime and Security Act 2001 to the Counter-Terrorism and Security Act 2015 discussed above. The situation in relation to anti-terrorism legislation in the UK remains fluid, with proposals for a Counter-Extremism Bill in 2016 seemingly floundering on the rock of free speech and the publication in 2018 of another controversial Counter-Terrorism and Border Security Bill, both of which will be briefly considered here. It thus appears that legislation continues to be heaped upon legislation, compounding the ‘untidiness’ in this area first observed by the then Independent Reviewer of Terrorism Legislation (IRTC), David Anderson QC, back in 2012 (Anderson, 2012: para. 11.3). Given the sizeable body of legislation, and in order to avoid the presentation of a tedious shopping list of measures, the section aims only at discussion of the main strands of each statute, leaving scope in the next section for a more in-depth analysis of impact on the ordinary justice system.

Anti-Terrorism, Crime and Security Act 2001 Despite the then recently enacted Terrorism Act 2000, the UK responded quickly to the events of 9/11 with the massive Anti-Terrorism, Crime and Security Act 2001 (ATCSA). Part 4 of the Act constituted a return to detention without trial or internment, but of a much more limited scope (Roach, 2011). The 2001 variant was implemented through immigration legislation and was aimed exclusively at foreign suspects, 17 of whom were detained under the Act during its period of its operation (Home Office, 2004). These provisions were particularly controversial because of their focus on foreign nationals and the derogation they necessitated from Article 5(1)(f ) of the European Convention on Human Rights; indeed, as we shall see below, they did not survive subsequent legal challenge in in A v. Secretary of State for the Home Department (The Belmarsh case)7 (Haubrich, 2010; Walker, 2012, 2013). The Act also contained

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wide-ranging provisions on: terrorism financing (including asset forfeiture); the disclosure of information held by public bodies to authorities involved in criminal investigations, including secret tax information; the creation of the offence of withholding information on terrorism; expansion of police powers; and the expansion of offences of racial hatred to encompass religious hatred.

Prevention of Terrorism Act 2005 The next major piece of counter-terrorism legislation is linked with the first in that it was largely motivated by the House of Lord’s declaration in A v. Secretary of State for the Home Department8 in 2004 that s. 44 of the ATCSA was incompatible with the Human Rights Act 1998. The Act replaced the provisions under Part 4 of the ATCSA 2001 with a system of control orders, that is, ‘an order against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism’ (s. 1). Control orders were extended to British citizens and included restrictions in respect of place of residence, movements, use of specific articles, substances, services or facilities, and associations or communications. The Act envisaged two types of orders: derogating and non-derogating control orders with different authorisation requirements and durations, although no derogating control orders were ever in fact issued (Syrett, 2015; Walker, 2012). Various court cases taken by the subjects of control orders since 2005 have found certain restrictions, such as 18-hour detention and forced relocation, to be in certain circumstances incompatible with Art. 5 of the European Convention on Human Rights,9 resulting in a number of orders being re-issued. Successful challenges have also been brought on the basis of Art. 6 of the European Convention on Human Rights (right to fair trial), so that ‘controlled’ individuals must now be given sufficient information on the allegations made against them (the so-called gisting requirement).10 In light of these decisions, and as part of the ­government’s much-trumpeted ‘correction in favour of liberty’ mentioned above, in 2011 control orders were replaced with Terrorist

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Prevention and Investigation Measures (TPIMs), a form of ‘light touch’ control order (Fenwick, 2013). This Act is discussed further below.

Terrorism Act 2006 In contrast to the earlier counter-terrorism statutes, the Terrorism Act 2006 and the Counter-Terrorism Act 2008 reflected the preference for criminalisation as opposed to executive measures, and thus the primacy of criminal prosecution in the British struggle against terrorism (Walker, 2013; Syrett, 2015). Part 1 of the Terrorism Act 2006 added further offences to those contained in the Terrorism Act 2000, and criminalised for the first time in section 5 ‘any conduct in preparation’ of the commission of acts of terrorism. Other new offences included: the publication of statements which directly or indirectly encourage or induce the commission, preparation or instigation of acts of terrorism, including the glorification of the preparation or commission of such acts (s. 1); the dissemination of terrorist publications (s. 2); the provision of training for terrorism (s. 6) and attendance at a place used for terrorist training (s. 8). Passed in the context of the 7/7 bombings in London, great controversy surrounded two proposals in particular: the offence of glorification of terrorism and the proposal to extend the police detention period to a maximum of 90 days. In the final result, parliament inserted a saver into the glorification or encouragement offence to the effect that the ‘public could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated by them in existing circumstances’. In similar manner, the detention period was also watered down to a maximum duration of 28  days, although under the Protection of Freedoms Act 2011 it has now reverted to 14 days (Walker, 2012).

Counter-Terrorism Act 2008 Perhaps most significantly this act provides for post-charge questioning of terrorist suspects and the drawing of adverse inferences from a refusal to say something that is later relied on in court (see further Walker, 2016).

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Part 4 of the Act also provides for notification orders for those convicted of certain terrorist offences who, in similar manner to sex offenders, must notify authorities of their location and travel. Part 3 of the Act provides for extended sentences for terrorist offences and establishes that the connection to terrorism should be treated as an aggravating factor, thus increasing the length of sentences for crimes related to terrorism (Martínez-Peñas and Fernández-Rodríguez, 2012).

Terrorist Prevention and Investigation Measures Act 2011 As noted, this Act replaced control orders under the Prevention of Terrorism Act 2005 with Terrorist Prevention and Investigation Measures (TPIMs). These measures, albeit less sweeping than control orders, are extensive and include restrictions in respect of place of residence, movement, electronic communication and association (Schedule 1). As with control orders, TPIMs require permission from a court (s. 6) and are issued by the Home Secretary (s. 2). They can be imposed for a maximum period of two years (s. 5) (Syrett, 2015; Zedner, 2014).

Counter-Terrorism and Security Act 2015 In 2014 in response to the activities of ISIS in Syria and Iraq and the concomitant raising of the threat level from ‘substantial’ to ‘severe’, the UK introduced a new counter-terrorism bill, which would become the Counter-Terrorism and Security Act 2015. Part 1 introduced measures for temporary restrictions on travel of both incoming and outgoing suspected foreign terrorist fighters (FTFs). These included powers of search, inspection and retention of travel documents for those intending to leave Britain and temporary exclusion orders (TEOs) to regulate the re-entry of British nationals to the country. Part 2 of the Act bolsters the TPIM regime by reintroducing some of the most draconian restrictions such as forced relocation up to 200 miles (322 kilometres) from home. Part 3 provides powers to require internet service providers to collect and retain data that would enable identification of the use of a particular IP address (s. 21). Part 5 contains highly controversial preventive measures requiring

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a long list of state authorities, such as educational and health care bodies, to have due regard to the duty to prevent people from being drawn into terrorism (Blackbourn and Walker, 2016; Syrett, 2015). In practice, this places a responsibility on bodies such as schools to participate in work to prevent people from being drawn into terrorism and to  challenge extremist ideas. In May 2016, the UK government announced a Counter-Extremism and Safeguarding Bill (for England and Wales) that would introduce a new civil order regime to restrict ‘extremist activity’. The Bill contained numerous new powers, including the ability to ban ‘extremist’ organisations, to gag individuals and empower local councils to close premises used to ‘promote hatred’. The Bill, however, contains no definition of the concept of ‘extremism’. Several civil society organisations and prominent individuals have spoken out against the Bill, expressing concern that the proposals would feed fear and undermine free speech (International Commission of Jurists, 2016). The Bill now appears to be permanently shelved, however, after attempts to define extremism proved legally insurmountable (Guardian, 2017a). The government’s current legislative plans are contained in a Counter-­ Terrorism and Border Security Bill that was introduced into the House of Commons on 6 June 2018. In keeping with the previous trend of criminalising activities remote from the act of terrorism, the bill creates new offences that criminalise information-seeking and the expression of opinion, leading to strong criticisms from both the Joint Committee on Human Rights and the IRTC (Hill, 2018). It also allows local authorities, as well as police, to refer individuals to deradicalisation panels; extends the time period for the retention of biometric data; and expands powers in relation to suspicionless detentions, interrogations and searches of people at air and sea ports.

European Legislation Given the perhaps somewhat neglected role of the EU counter-terrorism space on criminal justice policy (Hamilton, 2018), it is intended in this

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and the following two chapters to briefly consider also the impact of some of the EU’s key counter-terrorism policies on the penal trajectories of the three case study countries. As Roach (2015: 15–16) observes, the differential impact of harmonisation measures at Member State level raises fascinating questions about ‘competing interests in convergence and divergence and whether complete European harmonization of counter-­terrorism law is possible or desirable’. For reasons of space, only the main counter-terrorism measures will be considered here. As argued elsewhere (Hamilton, 2018), these can be identified as the 2002 and 2008 EU Guideline Decisions on the definition of terrorism and the criminalisation of certain acts preparatory to terrorism and the Framework Decision on the European Arrest Warrant. Given its status as one of the best examples of ‘counter-law’ or ‘law against law’ operating under the umbrella of national security, the impact of blacklisting procedures will also be considered (Bures, 2011; Murphy, 2012).

Criminalisation of Terrorist Activity On 13 June 2002 the EU adopted a Framework Decision on Counter-­ Terrorism (FDCT)11 which sought to harmonise Member States’ penal laws on the definition and sentencing of terrorism. Such harmonisation took the form of a new definition of terrorism and new offences of directing, creating, supporting or participating in a terrorist group. This list was extended in a new Framework Decision (FD) in 2008 to include offences of public provocation to commit a terrorist offence, recruitment and training for terrorism (including via the internet). The impact of the first Guideline Decision has been lesser in the UK than in other Member States, with the UK preferring the broader description of terrorism in the Terrorism Act 2000 to the new EU definition12 (Roach, 2015). The impact of the 2008 FD was similarly limited, as following the adoption of the 2005 Council of Europe Convention on the Prevention of Terrorism, the UK had already enacted measures (in the Terrorism Act 2006) to criminalise the three new offences of public provocation, recruitment and training (European Commission, 2014). This is likely also to be the case with Directive 2017/541 on combatting terrorism,13 as the

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bulk of the provisions on FTFs, and so on have already been implemented by the UK through the Counter-Terrorism and Security Act (Blackbourn and Walker, 2016).

European Arrest Warrant The European Arrest Warrant (EAW) was also adopted on 13 June 2002 as one of the flagship measures of the EU response to 9/11.14 The Framework Decision removed substantial barriers to judicial cooperation (i.e. the political offence exception and the non-extradition of nationals), and replaced the extradition process with a simplified process whereby suspects and convicts would be surrendered after a brief judicial procedure. One of the main concerns with the Guideline Decision is the net-­ widening or ‘function creep’ (Argomaniz et al., 2015: 201) evident from the legislation’s inception: while it was presented to Member States and to the public as a key counter-terrorist measure, it included within its scope a long list of (32) offences, many of which, such as road traffic offences, can be regarded as relatively minor in nature. The UK implemented the Framework Decision with the Extradition Act 2003, which came into force on 1 January 2004. The introduction of the fast-track extradition procedure in Britain was seen as relatively uncontroversial compared with the host of other enactments passed in the last few years (Padfield, 2007). Indeed, it has even been heralded a critical part of the counter-terrorist infrastructure in Britain, with the then Home Secretary, Theresa May, describing it in 2014 as ‘vital’ to ‘deal with European fighters coming back from Syria’ (Telegraph, 2014). Yet, this is not to deny that its implementation in the UK has not been without its problems, primarily concerning the proportionality of invoking an extradition procedure for what may be regarded as relatively trivial offences. While the EAW procedure is systematically used for minor offences throughout Europe (European Parliament, 2014), the UK stands out as a Member State that receives considerably more warrants than it issues, and indeed as a state that has experienced a large increase in requests since the inception of the scheme in 2004.15 The issue of proportionality in the UK has primarily been associated with the large volume of requests from

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Poland (House of Commons, 2017). Some examples of problematic requests in this vein include extraditions to Poland in connection with exceeding a credit card limit, piglet rustling, and theft of a wheelbarrow, some wardrobe doors, a small teddy bear and a pudding (ibid.). In response, the government introduced in 2014 a new proportionality test to the Extradition Act16 which requires specific consideration by judges of matters such as the seriousness of the offence, likely penalty, and alternatives to extradition, among other things  prior to issuing a warrant. Similar legislation has also been enacted in Poland in an effort to reduce the number of EAWs issued.17 The legislation, passed in July 2015, amended the Criminal Procedural Code so that an EAW can only be issued if it is in the interests of justice to do so. The number of requests for surrender issued by Poland to the UK appears to remain high, however, with the latest data showing that it issued 2127 requests out of a total of 16,837 requests received in 2017 (second only to Germany at 2847 requests; see National Crime Agency, 2018).

‘Blacklisting’ Orders In addition to its own role as a legislator, it should not be forgotten that the EU has played a role in the implementation of UN Security Council (UNSC) resolutions. One of the most significant examples of this from a criminological perspective was EC Regulation 2580/2001 which implemented the UN’s controversial ‘targeted measures’ or ‘blacklisting’ scheme (UNSC Resolution 1373 (2001)) and also instituted the EU’s own autonomous restrictive measures regime (Cameron, 2003; Hoffmann, 2008). Initially, the EU adopted a highly secretive and legally complex approach to the blacklisting process which, alarmingly, appeared to preclude judicial review (Amnesty International, 2005). This approach, which essentially mandated the freezing of an individual’s assets based on executive listing of known terrorists, was subsequently amended in response to a series of judgments from the European Court of Justice,18 requiring procedural amendments to ensure access to both effective judicial review and the provision of reasons for a suspect’s initial listing (Guild, 2008; Lang, 2011).

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As averred above, the UK is no stranger to the process of proscription or blacklisting of terrorist organisations and had already provided a framework for the making of freezing orders in the Terrorism Act 2000 (Sproat, 2010; Stevens, 2012). Given this background, it is particularly notable how its national courts exercised tighter jurisdictional control than the community courts over EU measures taken to implement UN Security Council resolutions in order to protect fundamental rights (Galli,  2014). In Ahmed et  al. v. HM Treasury19 the Supreme Court described the sweeping financial powers contained in two asset-freezing orders as ‘paralysing’, ‘draconian’ and leaving those involved as ‘effectively prisoners of the state’. It held that in making such orders without parliamentary scrutiny the government had exceeded its powers. Following the decision, the two executive orders enabling fast-track implementation of UNSC Resolutions were replaced with the Terrorist Asset-Freezing etc. Act 2010. In terms of implementation, the latest detailed report from the IRTC on the issue (Anderson, 2015) suggests that these measures continue to be used sparingly, with sanctions in place against only three persons who are at liberty in the UK.  The report did, however, observe a significant increase in turnover with eight new individuals, many with links to Syria/Iraq, having been designated in the period under review, no doubt reflecting the heightened threat assessment following Islamic State advances in late 2014.

Forms of Contagion in the UK As discussed in Chap. 1 the categories of contagion employed here are informed by the existing literature on the phenomenon, particularly Donohue’s (2012) typology of ‘transplantation’. While the three categories outlined below form distinct groupings in terms of their effects on the criminal law and other areas, they should not be seen as rigid. As will be discussed further, sometimes two or more forms of contagion may combine and overlap, thereby working together to further entrench counter-terrorist law in the mainstream system (Donohue, 2009: 378).

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Use of Terrorism as a ‘Picklock’ This category of contagion represents the potential of terrorism to leverage reforms unconnected to terrorism. Criminologists have previously observed the use of serious crimes such as organised crime as a ‘picklock’ for the introduction of controversial legislation that would otherwise be obstructed and a similar process is now underway concerning terrorism (Fijnaut and Paoli, 2004: 5; see also Cesoni, 2007). In the UK domestic context, opportunistic use of the terror threat can be observed in both the immediate legislative response to the Twin Tower attacks and in more recent legislation expanding surveillance powers in the interests of ‘national security’. Taking first the mammoth, 14-part Anti-Terrorism, Crime and Security Act 2001, it is worth noting that this legislation was rushed through Parliament just before Christmas, despite the unusually coercive nature of the powers introduced, and despite, as we will see, its implications beyond the national security sphere (Tomkins, 2002). The Act revived two previously discredited counter-terrorism strategies deployed by Britain in the past, namely, administrative detention or internment and the offence of refusing to supply authorities with information relevant to the investigation of terrorism. Both had been rejected by Lord Lloyd in his review of terrorism laws in 1996 (Lloyd, 1996) and had been subsequently omitted from the Terrorism Act 2000 (Roach, 2011). While much academic ink has been (justifiably) spilled on the draconian nature of these provisions, they are at least confined to use against suspected terrorists or those with connections to terrorist suspects. Of rather more interest from the instant perspective are those provisions smuggled in to the Act with an apparent lack of connection to terrorism and which, as Fenwick (2002: 758) astutely observes, ‘could hardly have been passed had they not been viewed as special powers warranted by the exigencies of the situation’. Chief among these provisions, and by far the most troubling, is the requirement on public authorities to disclose information to each other for the purposes of any criminal investigation, including investigations at a very preliminary stage and investigations outside the UK.  These powers, most likely to be used by the police and Security

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Services, permit access to a vast range of personal information such as a person’s tax affairs. They were first proposed by the government in its Criminal Justice and Police Bill earlier in 2001 but had to be dropped in the face of stringent criticism in the House of Lords (Tomkins, 2002). On this occasion, attempts in the upper chamber to restrict the disclosure of information to terrorism investigations were defeated on the grounds that terrorists might also commit other crimes (Fenwick, 2002). Concerningly, extensive use appears to have been made of these broader powers with the Newton Committee (2003) observing that only 4% of the almost 20,000 requests made to British revenue authorities for confidential tax information between January 2002 and September 2003 concerned terrorism offences. Tomkins (2002) notes two additional expansions to police powers introduced by the Act. The first concerns amendments to the Criminal Justice (Public Order) Act 1994 that provided the police with highly controversial powers to stop and search in anticipation of violence. Section 94 of the Act extends these powers beyond violent offences to any criminal offence, and also dilutes the requirement of reasonable suspicion to one of ‘expediency’. The second concerns general powers in Part 10 to search persons in police stations for the purpose of establishing identity, as well as powers to take fingerprints and photographs. These powers apply to all criminal suspects in custody, not only terrorist suspects. Before leaving the 2001 Act, it is also worth mentioning the failed proposal by the government within the Bill to extend existing hate laws to include religious, as well as racial, hatred. Perhaps akin to some of the other provisions discussed above, Lord Waddington described this as a proposal which had ‘been hanging around in the Home Office for a long time’20 waiting for a suitable opportunity to arise. In the end what he describes as a ‘sop’ to the Muslim community had to await enactment in 2006.21 A more recent example of legislation legitimated by fears of terrorism is the Investigatory Powers Act 2016, often referred to as the Snooper’s Charter. Part 4 of the Act provides for the bulk retention of ­communications data for a period of 12 months, essentially replicating measures contained in the ill-fated 2012 Communications Data Bill, which was ultimately blocked by the Liberal Democrats. Against the background of the recent

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terrorist attacks in Europe, the 2016 Act was hailed by the government as bringing the UK’s surveillance framework into the twenty-­first century and as necessary to allow security and intelligence agencies to combat terrorism. Home Secretary, Amber Rudd, argued that the powers were essential to keep the UK safe from terrorists: ‘This government is clear that, at a time of heightened security threat, it is essential our law enforcement, security and intelligence services have the powers they need to keep people safe. The internet presents new opportunities for terrorists and we must ensure we have the capabilities to confront this challenge’ (Home Office, 2016). Despite widespread criticism from internet rights and privacy groups, this time around the bill enjoyed an easier passage through Parliament. As Spurrier (2017) argues, the government ‘exploited fear and distraction’ to quietly introduce legislation at which it had long set its cap. While the rhetoric around the Act relied heavily on national security, its provisions may be invoked for a wide range of reasons ranging from protecting public health to the collection of taxes and charges. The powers may also be used by a plethora of public authorities such as HMRC, the Department for Work and Pensions (and a range of other government departments), NHS Trusts, the Gambling Commission, the Food Standards Agency and several ambulance services (Liberty, 2016). The wisdom of giving mass surveillance powers to such a broad range of public bodies may be called into serious question given evidence of abuse by local authorities of similar powers under the Regulation of Investigatory Powers Act, including the use of surveillance powers to follow people suspected of dog-fouling, fly-tipping and other anti-social behaviour (Guardian, 2016). In April 2018 the UK High Court ruled that Part 4 of the Investigatory Powers Act violates EU law on the grounds that (1) powers are not limited to the purpose of combatting ‘serious crime’ and (2) access to retained data is not subject to prior review by a court or an independent administrative body (Guardian, 2018). Judges have given ministers and officials six months to redraft the Act.

‘Blank Cheque’ Legislation This form of contagion differs from the first in that it is ostensibly focussed on terrorism and terrorist-related behaviour rather than non-­

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terrorist groups. When definitions of terrorism and terrorist-related activity are widely drawn, however, boundaries become blurred and the danger arises that these new measures may find an application against the legitimate activities of protestors, journalists or ordinary citizens (Gross, 2001; Zedner, 2009). Indeed, a prime example of the broad reach and potential wider significance of counter-terrorism powers was the use of ATSCA in October 2008 to freeze the UK assets of an Icelandic bank (Landesbanki) so as to recoup British savings lost in failed Icelandic banks (McKeever, 2010). As noted in the previous chapter, one of the best-known examples of this type of contagion in Britain is the use of section 44 of the Terrorism Act 2000, which introduced powers of stop and search without the need for any prior suspicion in areas where it was considered ‘expedient’ for the prevention of acts of terrorism. In practice, it was applied primarily in London where a continuous rolling authorisation under section 44 remained in place from 2001 to 2010. While this power was ultimately found to be unlawful by the European Court of Human Rights in 2010,22 over its decade in existence it was used to stop hundreds of thousands of people, including journalists and peaceful protesters, none of whom were ever convicted of a terrorism offence (Fenwick and Phillipson, 2011; Hodgson, 2013). Quite aside from this extraordinarily low ‘hit rate’, the manner in which the power was exercised gave rise to real concerns about discriminatory application. In addition to finding a breach under Article 8 of the Convention (right to private life), the ECtHR held that the potential for discriminatory use was ‘a very real consideration’.23 This was borne out by statistics which showed that South Asians and Blacks were much more likely to be searched under the section (Human Rights Watch, 2010). In 2012 the Protection of Freedoms Act raised the threshold for the use of these powers so that searches may now only be conducted where the police reasonably suspect an act of terrorism will take place and consider that the authorisation is necessary to prevent any such act from occurring.24 Following the Parsons Green attack on 15 September 2017 the use of this power was authorised for the first time since 2011 with 128 stop and searches carried out, of which 4 resulted in an arrest (Home Office, 2018).

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In light of this history, Liberty (2015: para. 2) has expressed concern over the provisions contained in the Counter-Terrorism and Security Act 2015, which they view as continuing ‘the discredited trend of unnecessary and unjust blank cheque powers that have the potential to undermine long term security’. They draw parallels in particular between the old section 44 and section 1 of the 2015 Act providing that when a police officer has reasonable cause to suspect that a person is attempting to leave the UK for the purposes of involvement in terrorism-related activity, powers to require production of, search for, inspection and retention of that person’s travel documents may be applied (Blackbourn and Walker, 2016). The danger of discriminatory application of the power was considered by the Joint Committee on Human Rights (2015) who noted the safeguards in the police Code of Practice to the effect that ‘reasonable suspicion cannot be formed on the basis of assumptions about the attitudes, beliefs or behaviour of persons who belong to particular groups or categories of people’. Whether this will prove a sufficient safeguard remains to be seen but to date it would appear that heavier use has been made of authority-­to-­carry schemes (essentially a ‘no-fly list’) also contained in the CTSA to prevent travel by suspected persons. A recent government report noted that the section 1 power was used 24 times between February and December 2015 whereas over approximately the same period 1132 people were prevented from travelling under the authorityto-carry scheme (HM Government, 2017; BBC, 2017). Like many European states since 9/11, the UK has sought to enact an increasing number of what may be described as ‘super inchoate’ offences (Mendlow, 2016). The type of behaviour which these offences have sought to criminalise has gone far beyond traditional criminal law principles around attempt or complicity as governments increasingly seek to neutralise the threat posed by terrorism before it can be realised. This carries the obvious risk of overreach, however, as broadly drafted legislative clauses extend to embrace a wide range of seemingly innocuous activities. A prime example in the UK legislation is the controversial notion of ­‘glorification’ (part of the section 1, Terrorism Act 2006 offence of ‘encouraging’ terrorism), which is extremely vague and includes ‘praise or celebration’. Despite criticisms from both the Joint Committee on Human Rights and the UN regarding its potential for interference with

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freedom of expression, the offence has been used in prosecutions of terrorist activity, particularly those involving the use of social media to promote ISIS (Hill, 2017). Extensive use has also been made of the preparation offence under section 5 of the Terrorism Act 2006, which criminalises ‘engaging in any conduct in preparation for giving effect to [a terroristic] intention’. Indeed, despite only reaching the statute book in 2009, it was identified by the former IRTC in 2016 as the most-charged provision under the terrorism acts since 9/11 (Anderson, 2016: 69), something not without practical significance given that it carries a discretionary maximum penalty of life imprisonment.25 The offence is also very easy to prove. The non-specific nature of actus reus of the offence—‘any conduct’—means that a staggeringly broad range of activity potentially falls within the section, such as the act of eating cereal suggested (perhaps tongue in cheek) by Simester (2012), if it takes place as part of a fitness programme in preparation for committing a terrorist act. Given the focus on the intentions of the perpetrator, and in the absence of any other criminal charge, the offence has been described as the trial of a person ‘principally for having criminal thoughts’ (Jones et al., 2006; Zedner, 2014). Further normalisation of what is effectively ‘thought crime’ appears to be envisaged by the government in the new Counter-Terrorism Bill 2018, which creates new offences that criminalise information-seeking and the expression of opinion, divorced from any act in pursuit of terrorism. These include ‘reckless invitations of support for proscribed organisations’, publication of images of clothing and, perhaps most worryingly, viewing online content ‘of a kind likely to be useful to a person committing or preparing an act of terrorism’. The latter offence has been criticised by Liberty (2018: 6) as risking ‘criminalising academic inquiry, journalistic investigation or passive curiosity without any intention to harm’. Strong criticism has also emanated from the current IRTC who warned that ‘thought without action must not be criminalised. While we can all agree that there should be nowhere for real terrorists to hide, we should also agree that legislating in the name of terrorism when the targeted activity is not actually terrorism would be quite wrong’ (Guardian, 2017b, emphasis added). The legislator should perhaps be guided here by the French experience, where similar provisions have been struck down twice by the French courts (see Chap. 4).

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The ‘New Normal’ Compared with the ad hoc and extra-legal character of many of the initial American responses to 9/11, the ‘legislative war on terrorism’ waged in Britain (Roach, 2011) may appear relatively benign. Yet, as astutely observed by Zedner (2014), one drawback of this (otherwise admirable) commitment to legalism is the risk that the criminal law itself becomes ‘terrorised’. Thus, we are presented with the paradoxical situation whereby ‘facilitating the successful prosecution of terrorist suspects results in the dilution and erosion of the very protections that bringing terrorist suspects within the criminal process was intended to secure’ (Zedner, 2014: 115). The following discussion examines this process under two headings, representing what are arguably two of the most pressing threats to criminal procedure posed by recent counter-terrorism measures.

Civil Law Measures Examining the post-9/11 legislation through this lens, one of the most striking instances of this type of procedural contagion is the development of new coercive measures outside of the criminal process or the ‘culture of criminal process avoidance’ as Fenwick (2015: 56) has described it. Such measures date from the sensational decision of the House of Lords in A v. Secretary of State for the Home Department discussed above, which forced repeal of Part IV of ATSCA and its replacement with a new system of ‘control orders’ in 2005. These orders, newly framed in an apparently non-discriminatory way in order to satisfy ECHR requirements, essentially comprised civil orders that imposed severe restrictions on liberty, but with the threat of criminal sanctions for breach. Among the many objectionable features of the orders were the fact that they imposed severe restrictions on liberty, indefinitely, and in the absence of criminal conviction or even an allegation of a criminal offence; on the basis of ‘reasonable suspicion’ rather than beyond reasonable doubt; following closed proceedings and in the absence of full disclosure (see further below); with an overly deferential system of judicial review. They therefore offend several basic tenets of criminal procedure and the rule of law such as the pre-

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sumption of innocence, the right to fair trial, to adversarial justice and to transparency (Bonner, 2006; Zedner, 2009). As briefly outlined above, a long line of litigation in the courts diluted some of the most egregious features of these orders, resulting in the eventual acceptance by the Cameron-Clegg government in 2011 that control orders should be replaced by less restrictive Terrorist Prevention and Investigation Measures. TPIMs have been dismissed by critics as a form of ‘control order lite’ (Liberty, n.d.) but differ from control orders in a number of significant regards such as: the replacement of the reasonable suspicion test with that of reasonable belief; the removal of restrictions such as forced relocation to other towns or cities; and a new maximum duration of two years (Galli, 2015). The inclusion of the term ‘investigation’ in the title of the legislation is also notable for what it is intended to convey about their use as an evidence-collection mechanism, and thus as a pathway to prosecutions.26 While this would appear to suggest a ‘fading sense of emergency’ (Roach, 2011: 287) and renewed faith in the criminal process, issue can continue to be taken with the very existence outside of the criminal justice system of such liberty-invading measures (Zedner, 2007). Indeed, for some commentators the very fact that the 2011 TPIMA, unlike its predecessor, does not need to be annually renewed represents a worrying normalisation of emergency measures (Galli, 2015; Roach, 2011). Even more concerning perhaps is the fact that this shadow system of justice would appear to have been consolidated and extended with the enactment of the Counter-Terrorism and Security Act 2015. The introduction of ‘temporary exclusion orders’ (TEOs) draws on the TPIM model in many ways, both in relation to the criminal law penalties in place for breach and in terms of the obligations to which an individual can be subjected on return (mirroring those listed in Schedule 1, TPIMA) (Fenwick, 2016). Moreover, the 2015 Act bolsters the legal framework underpinning TPIMs by reinstating one of the most controversial features of the old control order regime, namely, the requirement to impose relocation, albeit within a 200-mile radius of the individual’s residence.27 Despite the small numbers of individuals subjected to both control orders and the TPIM variant,28 the risk of normalisation should not be dismissed lightly. As several authors have argued, the protracted litigation on control orders and TPIMs may have resulted in a reduction in the repressive nature of such measures, but

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it has also, through the provision of judicial imprimatur, legitimated the very concept of such non-trial based executive measures themselves (Ewing and Tham, 2008; Fenwick, 2013, 2015). The risk associated with such judicial endorsement of this new legislative template is of course its application in other areas of criminal justice. In this regard, we may observe the Proceeds of Crime Act 2002 extending much of the same civil model of forfeiture as was applied to terrorism in the ATSCA 2001 to a much wider range of crimes (Roach, 2011). We may also note the introduction in 2007 of the Serious Crime Prevention Order (SCPO), another civil preventative measure closely modelling the control order, and which applies to crimes as wide-ranging as drugs trafficking, fraud, tax offences or simply participating in activities of a (vaguely defined) ‘organised crime’ group (Zedner, 2007). In the contemporary context, however, one may wonder whether the pre-existing ‘security culture’ (Lea, 2001; Loader, 2007) has rendered it problematic to conceptualise this type of contagion as unidirectional only, that is, as only spreading from the counter-terrorism to the ordinary criminal justice sphere. Even a passing examination of recent counter-terrorism legislation in the UK reveals considerable evidence of what Lea (2005, 2015) describes as ‘trickle-up’ as well as ‘trickle-down’ viz. a more aggressive approach to crime control measures also influencing a country’s approach to terrorism. Witness, for example, the extension of powers to compel evidence and produce documents from the field of serious organised crime to terrorism in the 2006 Act (Roach, 2011) and the application to terrorist suspects in the 2008 Act of notification requirements previously imposed on sex offenders. Even the hybrid civil/criminal model upon which the control order itself was based was forged not in the hot crucible of national security politics but in the rather more anodyne context of anti-social behaviour (Hamilton, 2007). As such, it represents a classic example of ‘contagion’ in an upwards rather than downwards direction.29

The Principle of Open Justice Despite the complexities of the crime-based approach to terrorism that we have just observed, and its many influences, it would be a mistake not

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to acknowledge the tendency of counter-terrorist legislation to test the traditional boundaries of criminal liability and police powers. Examples from the post-9/11 period include the extension of maximum periods of detention for questioning to 28 days (Terrorism Act 2006), the abandonment of traditional restrictions on post-charge questioning (Counter-­ Terrorism Act 2008), and the widening of the criminal net to arguably encompass ‘thought crimes’ or crimes of mere association (Terrorism Act 2006 and Counter-Terrorism and Border Security Bill 2018, see section above). Among these many examples of what Ericson (2007) terms, ‘counter-law’ or ‘laws against law’, one particularly worrying development concerns the whittling down of the principle of open justice through the use of secret evidence and closed proceedings. Closed Material Proceedings prohibit public attendance and operate through a special advocate procedure where, due to the sensitive nature of the evidence adduced in court, counsel are unable to take instructions from their clients once they have seen the evidence. Trialled in the Special Immigration Appeals Commission in 1997 as an exceptional measure to deal with national security concerns in an immigration context, it has since been applied to control/order TPIM hearings and spread very quickly to a large number of other areas such as asset-freezing cases and parole hearings (Fenwick and Phillipson, 2011). Indeed, its growth has been such that in the UK ‘there are no fewer than 22 different types of court hearing in which special advocates can be used’.30 Further whittling of the principle of open justice can also be seen in the recent decision in the Incedal31 case to hold a criminal trial concerning terrorist offences in secret. Decried by Liberty as ‘a dangerous departure from our democratic tradition’ (Casciani, 2014), Zedner (2016) worries about the precedent set by the case as well as the secrecy surrounding even the reasons behind such a seemingly arbitrary decision.

Conclusions Given the long experience of the UK with terrorism, and its history of normalisation and creep of counter-terrorism powers, it is perhaps unsurprising that we have observed similar patterns in the post-9/11 period.

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Certainly in the years immediately following the attacks the government took the opportunity to expand various state powers for general crime control purposes and misused special police powers against ordinary criminal suspects and protestors, to little effect. While this tendency appeared to wane as the 9/11 and 7/7 attacks lost their grip on the public and political imagination, dangerous precedents regarding the legitimacy of coercive non-trial-based measures and on the use of special procedures and closed proceedings had already been set. Such administrative measures are at a much more advanced stage of development in Britain than in other jurisdictions and, while used infrequently, merit close scrutiny in terms of the violence that they do to basic assumptions of the criminal justice system. This is particularly so given the consolidation and extension of these measures in the Counter-Terrorism and Security Act 2015. The prospects of contagion remain significant in the UK, with recent terrorist activity providing the backdrop and legitimating force for broadly drawn new criminal offences and mass retention of data. Perhaps this can be dismissed as inevitable in a system committed to the goal of prosecution of terrorism— as Walker (2013: 248) argues ‘a modified … criminal process may not be as morally pristine as an exceptional system’—yet it behoves criminologists to attend carefully to such developments, not least in light of the increasing reciprocity between ‘normal’ and ‘special’ criminal justice identified above.

Notes 1. Non-jury or ‘Diplock’ courts were discontinued in Northern Ireland in 2007, but can still be invoked in exceptional circumstances. 2. Criminal Evidence Order Northern Ireland (1988). 3. See comments of the UK Supreme Court in R v Gul [2013] UKSC 64. 4. The UK’s definition has been highly influential in many other countries in the post-9/11 period, particularly former colonies (see further Roach, 2011, 2015). 5. 472 Parliamentary Debates, House of Commons, 21 Feb 2008, Column 561. 6. Although not yet enacted, this Bill could be brought forward at any time as emergency legislation under ‘exceptional circumstances’ (see further, Fenwick, 2013).

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7. [2004] UKHL 56. 8. Ibid. 9. See Secretary of State for the Home Department v. JJ [2007] 3 WLR 51; Secretary of State for the Home Department v. AF [2007] 3 WLR 681; AP v. Secretary of State for the Home Department [2010] 3 WLR 51. 10. Secretary of State for the Home Department v. AF (No.3) [2009] 3 WLR 74. 11. Council Framework Decision of 13 June 2002 on Combating Terrorism. 2002/475/JHA. 12. Defined in Article 1(1) FDCT as acts committed with the intention of ‘seriously intimidating a population, or unduly compelling a Government or international organisation to perform or abstain from performing any act, or seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation’. 13. .Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA. 14. Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures between Member States. 2002/584/JHA. 15. According to historical National Crime Agency data, the total number of requests has jumped from 1865 in 2004 to 12,613 in 2015. 16. Section 157 of the Anti-Social Behaviour, Crime and Policing 2014 Act. This added a new section 21A to the Extradition Act 2003. 17. Ustawa o rzeczach znalezionych. Dziennik Ustaw [Official Journal of Laws], No. 0, Location 397, 2015. 18. Kadi v. Council and Commission (Kadi I, CFI), CFI Case T-315/01 (2005) ECR II-3649; Kadi and Al Barakaat International Foundation v. Council and Commission (Kadi I, ECJ), ECJ Joined Cases C-402/05P & 415/05P (2008) ECR I-6351; Kadi v. Commission (Kadi II, EGC), EGC Case T-85/09 (2010) ECR II-5177; Commission, Council and United Kingdom v. Kadi (Kadi II, ECJ), ECJ Joined Cases C-584/10, C-593/10 & C-595/10 (2013). 19. Ahmed et al v. HM Treasury [2010] UKSC 2, [2010] 2 WLR 378. 20. H.L. Deb., col. 189, November 27, 2001 (Lord Waddington). 21. Racial and Religious Hatred Act 2006.

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22. Gillan v UK (Application no. 4158/05), European Court of Human Rights. 23. Ibid., paragraph 85. 24. Now section 47A, Terrorism Act 2000. Emphasis added. 25. The offences of encouragement and dissemination carry maximum penalties of seven years’ imprisonment. 26. In its Report on the 2011 Act, the Joint Committee for Human Rights (2014) rightly took issue with the supposed investigative function of these measures, arguing that they still represent a strategy for temporarily ‘neutralising’ terror suspects. 27. An individual may only be required to live in a residence that is more than 200 miles from his or her residence if s/he agrees. 28. In total, 48 individuals were subject to control orders between 2005 and 2010 (Carlisle, 2011). As of 31 August 2017, there were six TPIM notices in force, five in respect of British citizens (Hill, 2018). 29. As Shami Chakrabarti and Casey (2005), the then director of Liberty, commented at the time, ‘It seems to me that we would not be living with the chilling spectre of the anti-terror “control order” (indefinite punishment based on secret intelligence) if we had been more critical of his older cousin, the Asbo.’ 30. Hansard (1 March 2010), supra note 42, col 739 (Andrew Dismore). 31. R v Incedal and Rarmoul-Bouhadjar (2014).

References Amnesty International (2005) Human Rights Dissolving at the Borders? Counter Terrorism and EU Criminal Law. Brussels: Amnesty International EU Office. Anderson, D. (2012) The Terrorism Acts in 2011. Report of the Independent Reviewer on the Operation of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006. London: HMSO. Anderson, D. (2015) Fourth Report on the Operation of the Terrorist Asset-Freezing, etc. Act 2010. London: HMSO. Anderson, D. (2016) The Terrorism Acts in 2015. Report of the Independent Reviewer on the Operation of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006. London: HMSO. Argomaniz, J., Bures, O. and Kaunert, C. (2015) A Decade of EU Counter-­ Terrorism and Intelligence: A Critical Assessment. Intelligence and National Security, 30(2–3): 191–206.

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BBC (2017) Reality check: how can police stop terror suspects travelling?. 28th May. Available at: https://www.bbc.com/news/election-2017-40046562. Blackbourn, J. and Walker, C. (2016) Interdiction and Indoctrination: The Counter-Terrorism and Security Act 2015. Modern Law Review, 79(5): 840–870. Bonner, D. (2006) Checking the executive? Detention without trial, control orders, due process and human rights. European Public Law, 12(1): 45–71. Bures, O. (2011) EU Counterterrorism Policy: A Paper Tiger? Aldershot: Ashgate. Cameron, I. (2003) European Union Anti-Terrorist Blacklisting. Human Rights Law Review 3(2): 225–256. Carlisle, L. (2011) Sixth Report on the Independent Reviewer pursuant to section 14(3) of the Prevention of Terrorism Act 2005. London: HMSO. Casciani, D. (2014) Fully secret terror trial blocked by Court of Appeal. BBC News, 12th June. Available at: https://www.bbc.com/news/uk-27806814. Cesoni, M. (ed.) (2007) Nouvelles méthodes de lutte contre la criminalité. La normalisation de l’exception. Brussels: Bruylant. Chakrabarti, S. and Casey, L. (2005) Mob Justice or Yob Control? The Guardian, 19 March. Coolaset, R. (2010) EU Counterterrorism Strategy: value added or chimera? International Affairs, 86(4): 857–873. Donohue, L. K. (2009) The perilous dialogue. Georgetown Public Law and Legal Theory Research Paper No. 12–028, Georgetown University. Donohue, L. K. (2012) Transplantation. In: Ramraj, V. V., Hor, M., Roach, K., et  al. (eds) Global Anti-Terrorism Law and Policy. Cambridge: Cambridge University Press, 67–87. Ericson, R. V. (2007) Crime in an Insecure World. London: Polity Press. European Commission (2014) Report from the Commission to the European Parliament and Council on the implementation of Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/ JHA on combating terrorism. COM(2014) 554. European Parliament (2014) Resolution of 27 February 2014 with recommendations to the Commission on the review of the European Arrest Warrant. A7-0039/2014. Ewing, K. D. and Tham, J.-C. (2008) The Continuing Futility of the Human Rights Act. Public Law 668–693. Fenwick, H. (2002) The Anti-Terrorism, Crime and Security Act 2001: A Proportionate Response to 11 September. Modern Law Review, 65(5): 724–762.

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Fenwick, H. (2013) Designing ETPIMs around ECHR Review or Normalisation of ‘Preventive’ Non-Trial-Based Executive Measures? Modern Law Review, 76(5): 876–908. Fenwick, H. (2015) Redefining the Role of TPIMs in Combatting ‘Home-­ Grown’ Terrorism Within the Widening Counter-Terror Framework. European Human Rights Law Review (1): 41–56. Fenwick, H. (2016) Responding to the ISIS threat: extending coercive non-­ trial-­ based measures in the Counter-Terrorism and Security Act 2015. International Review of Law, Computers & Technology, 30(3): 174–190. Fenwick, H. and Phillipson, G. (2011) Covert derogations and judicial deference: Redefining liberty and due process rights in counterterrorism law and beyond. McGill Law Journal, 56(4): 863–918. Fijnaut, C. and Paoli, L. (eds) (2004) Organized Crime in Europe: Concepts, Patterns and Policies in the European Union and Beyond. Dordrecht: Springer. Galli, F. (2014) The Freezing of Terrorists’ Assets: Preventive Purpose with a Punitive Effect. In: Galli, F. & Weyembergh, A. (eds), Do labels still matter? Blurring boundaries between administrative and criminal law. The influence of the EU. Etudes européennes, no. 3, Editions de l’Université de Bruxelles, Brussels. Galli, F. (2015) The Law on Terrorism: The UK, France and Italy Compared. Bruxelles: Bruyant. Guardian (2016) Revealed: British councils used Ripa to secretly spy on public. 25th December. Available at: https://www.theguardian.com/world/2016/ dec/25/british-councils-used-investigatory-powers-ripa-to-secretly-spyon-public. Guardian (2017a) Theresa May’s counter-terrorism bill close to ‘sinking without trace’. 29th January. Available at: https://www.theguardian.com/politics/2017/jan/29/theresa-may-counter-terrorism-bill-sinking-without-traceextremism-british-values. Guardian (2017b) UK terrorism law expert warns government over plans for new legislation. 24th October. Available at: https://www.theguardian.com/ politics/2017/oct/24/uk-terrorism-government-plans-new-legislationlaws-max-hill. Guardian (2018) UK mass digital surveillance regime ruled unlawful. 30th January. Available at: https://www.theguardian.com/uk-news/2018/jan/30/ uk-mass-digital-surveillance-regime-ruled-unlawful-appeal-ruling-snoopers-charter.

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Gross, O. (2001) Cutting Down Trees: Law-Making Under the Shadow of Great Calamities: Essays on Canada’s Anti-Terrorism Bill. In: R. J. Daniels (ed.), The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill. Toronto: Toronto University Press. Guild, E. (2008) The Uses and Abuses of Counter-Terrorism Policies in Europe: The Case of the “Terrorist Lists”. Journal of Common Market Studies, 46(1): 173–193. Hamilton, C. (2007) The Presumption of Innocence in Irish Criminal Law: Whittling the Golden Thread. Dublin: Irish Academic Press. Hamilton, C. (2018) ‘The European Union: Sword or Shield? Comparing counter-­terrorism law in the EU and USA after 9/11’, Theoretical Criminology, 22(2): 206–225. Haubrich, D. (2010) The Social Contract and the Three Types of Terrorism: Democratic Society in the United Kingdom after 9/11 and 7/7. In: Crenshaw, M. (Ed.), The Consequences of Counterterrorism. Russell Sage Foundation, New York. Hill, M. (2017) Responding to terrorists’ Use of Social Media: Legislation, Investigation and Prosecution, Swansea University 28th June. Available at: https://terrorismlegislationreviewer.independent.gov.uk/responding-to-terrorists-use-of-social-media-legislation-investigation-and-prosecution/. Hill, M. (2018) The Terrorism Acts in 2016. Report of the Independent Reviewer on the Operation of the Terrorism Acts 2000 and 2006. London: HMSO. Hillyard, P. (1994) Suspect Community: People’s Experiences of the Prevention of Terrorism Act in Britain. Pluto Press, London. HM Government (2011) Review of Counter-Terrorism and Security Powers. London: HMSO. HM Government (2017) Transparency Report 2017: Disruptive and Investigatory Powers. London: HMSO. Hodgson, J. (2013) Legitimacy and state responses to terrorism: The UK and France. Legal Studies Research Paper No. 2013–30, Warwick School of Law. Hodgson, J. and Tadros, V. (2009) How to Make a Terrorist Out of Nothing. Modern Law Review, 72(6): 984–998. Hoffmann, J. (2008) Terrorism Blacklisting: Putting European Human Rights Guarantees to the Test. Constellations, 15: 543–560. Home Office (2004) Counter-Terrorism Powers: Reconciling Security and Liberty in an Open Society. Cm 6147 (London: HMSO). Home Office (2016) Investigatory Powers Bill receives Royal Assent. 29th November. [press release] Available at: https://www.gov.uk/government/ news/investigatory-powers-bill-receives-royal-assent.

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Home Office (2018) Operation of Police powers under the Terrorism Act 2000 and subsequent legislation: quarterly update to December 2017. 8th March. Available at: https://assets.publishing.service.gov.uk/government/uploads/system/ uploads/attachment_data/file/686342/police-powers-terrorism-dec2017hosb0518.pdf. House of Commons (2017) Briefing Paper on the European Arrest Warrant. Number 07016, 18th April. Available at: https://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN07016#fullreport. Human Rights Watch (2010) Without Suspicion: Stop and Search under the Terrorism Act 2000. Available at: https://www.hrw.org/report/2010/07/04/ without-suspicion/stop-and-search-under-terrorism-act-2000. International Commission of Jurists (2016) ‘E-Bulletin: counter-terrorism and human rights’. European Human Rights Law Review 347. Joint Committee on Human Rights (2015) Fifth Report Legislative Scrutiny: Counter-Terrorism and Security Bill. Available at: https://publications.parliament.uk/pa/jt201415/jtselect/jtrights/86/8602.htm. Jones, A., Bowers, R. and Lodge, H. D. (2006) Blackstone’s Guide to the Terrorism Act 2006. Oxford: OUP. Lang, J. (2011) EU counter-terrorism: security, justice, democracy and opportunity for all? 14th August. [blog] Available at: https://www.e-ir. info/2011/08/14/eu-counter-terrorism-security-justice-democracy-andopportunity-for-all/. Lea, J. (2001) Crime Control and Civil Liberties. [web entry]. [Unpublished paper]. Lea, J. (2005) Terrorism, crime and the collapse of civil liberties. Lecture to Criminology Society at Middlesex University, April. Lea, J. (2015) From the criminalisation of war to the militarisation of crime control. In: Walklate S and McGarry R (eds) Criminology and War: Transgressing the Borders. Abingdon: Routledge. Liberty (n.d.) TPIMs. [web entry] Available at: https://www.libertyhumanrights.org.uk/human-rights/countering-terrorism/tpims. Liberty (2015) Liberty’s Briefing on the Counter-Terrorism Security Bill in the House of Lords. London: Liberty. Available at: https://www.libertyhumanrights.org.uk/sites/default/files/Liberty’s%20Briefing%20on%20the%20 Counter-Terrorism%20%20Security%20Bill%20(Second%20reading%20 HOL)%20(Jan%202015).pdf. Liberty (2016) Liberty’s briefing on the Investigatory Powers Bill for Report Stage in the House of Commons. London: Liberty. Available at: https://www.libertyhumanrights.org.uk/sites/default/files/campaigns/resources/Liberty%27s%20

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Briefing%20on%20the%20Investigatory%20Powers%20Bill%20for%20 Report%20Stage%20in%20the%20House%20of%20Commons.pdf. Liberty (2018) Liberty’s Second Reading Briefing on the Counter-Terrorism and Border Security Bill 2018. London: Liberty. Available at: https://www.libertyhumanrights.org.uk/sites/default/files/campaigns/resources/ Liberty%27s%20Briefing%20on%20the%20Investigatory%20Powers%20 Bill%20for%20Report%20Stage%20in%20the%20House%20of%20 Commons.pdf. Lloyd, Lord (1996) Inquiry into Legislation against Terrorism. London: HMSO. Loader, I. (2007) The cultural lives of security and rights. In: Goold BJ and Lazarus L (eds) Security and Human Rights. Portland, OR: Hart Publishing. McKeever, D. (2010) The Human Rights Act and anti-terrorism in the UK: one great leap forward by Parliament, but are the courts able to slow the steady retreat that has followed? Public Law, January, 110–139. Martínez-Peñas, L. and Fernández-Rodríguez, M. (2012) Evolution of British Law on Terrorism: From Ulster to Global Terrorism (1970–2010). In: Masferrer, A. (ed.), Post 9/11 and the State of Permanent Legal Emergency: Security and Human Rights in Countering Terrorism. Springer, Dordrecht. Mendlow, G. S. (2016) Thought Crime. Oxford. 26th October. Murphy, C. C. (2012) EU Counter-Terrorism Law: Pre-emption and the Rule of Law. Oxford: Hart. Newton Committee (2003) Anti-terrorism, Crime and Security Act 2001 Review: Report. London: HMSO. National Crime Agency (2018) Wanted from the UK (Part 1): Calendar year data 2017. Available at: https://nationalcrimeagency.gov.uk/who-we-are/publicati ons?search=european+arrest+warrant&category%5B%5D=1&limit= 20&tag=&tag= Padfield, N. (2007) The Implementation of the European Arrest Warrant in England and Wales. European Constitutional Law Review, 3: 253–268. Roach, K. (2011) The United Kingdom Responds A Legislative War on Terrorism. In: Roach, K. (ed.), The 9/11 Effect: Comparative Counter-­ Terrorism. Cambridge: Cambridge University Press. Roach, K. (2015) Comparative Counter-Terrorism Law Comes of Age. In: Roach, K. (ed.) Comparative Counter-Terrorism Law. Cambridge: Cambridge University Press. Simester, A. P. (2012) Prophylactic Crimes. In: G. R. Sullivan & I. Dennis (eds) Seeking Security: Pre-empting the commission of criminal harms. Oxford: Hart Publishing.

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Sproat, P.  A. (2010) Counter-terrorist finance in the UK. Journal of Money Laundering Control, 13(4): 315–335. Spurrier, M. (2017) The People vs. The Snoopers’ Charter. [press release]. 10th January. Available at: https://www.libertyhumanrights.org.uk/news/pressreleases-and-statements/people-vs-snoopers%E2%80%99-charter-libertylaunches-crowdfunded-legal. Stevens, J. (2012) UN Targeted Terrorist Sanctions and the Rule of Law: The UKs Response. Journal of Terrorism Research, 3(2), np. https://doi.org/ 10.15664/jtr.253. Syrett, K. (2015) The United Kingdom. In: Roach, K. (ed.), Comparative Counter-Terrorism Law. Cambridge: Cambridge University Press. Telegraph (2014) Theresa May: Fight Europe by all means, but not over this Arrest Warrant. 14th May. Available at: https://www.telegraph.co.uk/news/ politics/conservative/11216589/Theresa-May-Fight-Europe-by-all-meansbut-not-over-this-Arrest-Warrant.html. Tomkins, A. (2002) Legislating against Terror: The Anti-Terrorism, Crime and Security Act 2001. Public Law, Summer, 205–220. Walker, C. (2004) Terrorism and Criminal Justice: past, present and future. Criminal Law Review, 311–327. Walker, C. (2012) Counter-Terrorism and Human Rights in the UK. In: Breen-­ Smyth, M. (ed.) The Ashgate Research Companion to Political Violence. Ashgate Publishing, Farnham. Walker, C. (2013) Terrorism Prosecution in the United Kingdom. In: Ni Aolain, F. and Gross, O. (eds.) Guantanamo and Beyond. Cambridge: Cambridge University Press. Walker, C. (2016) Post-charge questioning in UK terrorism cases: straining the adversarial process. The International Journal of Human Rights, 20(5): 649–665. Zedner, L. (2007) Preventive justice or pre-punishment? The case of control orders. Current Legal Problems, 60(1): 174–203. Zedner, L. (2009) Security and Counter-terrorism. In: Zedner, L. Security. London: Routledge. Zedner, L. (2014) Terrorizing Criminal Law. Criminal Law and Philosophy, 8(1): 99–121. Zedner, L. (2016) Criminal Justice in the Service of Security. In: Bosworth, M., Hoyle, C. and Zedner, L. (eds) Changing Contours of Criminal Justice. Oxford: OUP.

3 Counter-Terrorism in Poland Giulia Berlusconi and Claire Hamilton

Abstract  The low level of terrorist activity in Poland has not stopped it legislating in the wake of the recent terror attacks in Europe. This chapter begins with an outline of the historical development of counter-terrorism law and policy in Poland prior to 9/11, before providing a synopsis of post-9/11 domestic and European Union legislation. The final section examines the types of contagion according to the categories set out in Chap. 1. Recent years have seen a series of dramatic reforms of the Polish criminal justice system on the basis of the terrorist threat creating conditions for violations of the rights to liberty, privacy, and so on. In this more recent legislation, the chapter finds strong evidence in support of the ‘contagion’ thesis, particularly in a political context where core democratic guarantees appear under threat. Keywords  Contagion • Counter-terrorism • Criminal justice • Poland

© The Author(s) 2019 C. Hamilton, Contagion, Counter-Terrorism and Criminology, Crime Prevention and Security Management, https://doi.org/10.1007/978-3-030-12322-2_3

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Introduction In sharp contradistinction to France and the UK, Poland has never experienced serious terrorist threats. Prior to the end of Communist rule in 1989, Polish resistance movements advocated for non-violent methods of action, and did not resort to terrorist activities against the communist government (Gogolewska, 2005). While, more recently, a few incidents have reached international news (such as the case of Brunon Kwiecień’s arrest for a planned attack on the Polish parliament) (BBC, 2012), the terrorist threat has remained relatively low in the country, even after Poland’s participation in the global ‘war on terror’ and the deployment of Polish troops in Afghanistan and Iraq (Adamczak, 2007; Zieba, 2015).1 As will be discussed further below, however, this low level of terrorist activity has not stopped Poland legislating in the wake of the recent terror attacks in Europe, ostensibly with a view to delivering efficiencies in countering terror. As with the previous chapter, we begin with an outline of the historical development of counter-terrorism law and policy in Poland prior to 9/11, before providing a synopsis of post-9/11 domestic and European Union legislation. The final section examines the types of contagion according to the categories set out in Chap. 1.

Background Poland’s relative lack of experience in the fight against terrorism, together with a process of sovietisation of the criminal justice system in the decades before the fall of communism, help us understand the legislative framework and penal climate in which government agencies involved in counter-terrorism activities operate today. The unfamiliarity with the phenomenon has meant the Polish government has been particularly open to US/European influence in this area and has traditionally shied away from identifying country-specific solutions (Gogolewska, 2005). New counter-terrorism measures, however, had to be implemented by a criminal justice system which still retained vestiges of the communist era.

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The Polish criminal justice system is still influenced by the punitiveness inherited from the communist past to the extent that, according to Krajewski (2013), today’s repression-based, exclusionary crime control policies in Poland seem to be more a continuation of the old-style punitiveness rather than a ‘punitive turn’ or a new punitiveness as experienced by Western European countries in the last 20 years (Pratt, 2007; Snacken, 2010). The dominance of the Soviet Union had a substantial impact not only on the political, cultural and economic life of Polish people but also on penal culture and the administration of justice. During the Stalinist era, the communist ruling elite used the criminal justice system to deal with opponents. This was made possible by reforms of the pre-war criminal justice system which introduced special courts and expanded the use of military ones, for example, by empowering them to judge civilians charged with any of the loosely defined offences against the state (Frankowski and Wasek, 1993). By November 1945, procedural rules for these crimes had been simplified, and for many of them emergency proceedings applied.2 According to Frankowski and Wasek (1993: 145), these ‘legislative changes […] infused many typical Soviet concepts into the Polish criminal justice system’. This was particularly evident in the key role of prosecutors in investigations and pre-trial proceedings, and in their de facto dependence on their political masters. Thus, the Polish procuracy has never obtained real independence from external influences decades after the fall of communism, and was until 2010 still subordinate to the Ministry of Justice, facts which may not be without relevance in understanding its heavy use of the European Arrest Warrant (Krajewski, 2012). The communist regime also had an influence on criminal sanctions, which reached unprecedented levels in the early 1950s. Again, although post-communist reforms led to changes in sentencing policies and in major prison reform, and the imprisonment rate fell sharply in the early 1990s, the prison population still remains high in comparison with other European countries (Frankowski and Wasek, 1993; Krajewski, 2004). In the post-Stalinist period, many of these features of the Polish criminal justice system remain undisturbed by the enactment of a new crimi-

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nal code in 1969. The new code, however, explicitly stated the duty to prosecute foreign terrorist offenders within the Polish legal system as a result of international agreements (Daranowski, 2015; Frankowski and Wasek, 1993). This is the first time we see the influence of other countries and international organisations on Polish counter-terrorism legislation. Indeed, in the same period Poland ratified five UN conventions on terrorism, although their implementation was delayed (Daranowski, 2015).3 The adoption of UN conventions on terrorism continued in the postcommunist period after 1989.4 Membership of the Council of Europe in 1991 and in NATO in 1999, respectively, further contributed to the development of national counter-terrorism legislation to fulfil international obligations (Daranowski, 2015; Gogolewska, 2005).5 In the post-communist period, penal law reform efforts aimed to introduce in Poland a system based on the rule of law and the separation of powers (Frankowski and Wasek, 1993). Many provisions in the 1969 criminal code, as well as in other laws dealing with criminal justice matters, were modified or even repealed. New safeguards for defendants in criminal cases were introduced or enhanced (e.g. right to legal assistance, provisions on pre-trial detention), aligning Poland with international human rights standards. The Polish government introduced broad guarantees of due process and civil liberties, which led to a reduction in the punitive character of criminal law (Frankowski and Wasek, 1993; Krajewski, 2004). However, the growth of crime (particularly organised crime) in the 1990s induced high levels of fear of crime in the population, and public attitudes became more punitive. In the late 1990s this, in turn, became an obstacle to the approval of liberal criminal law reforms (Krajewski, 2004), with elements of this more punitive approach perhaps also discernible in the enactment of harsh immigration qua counter-terrorism laws, even in the period prior to 2015 (see below).

Counter-Terrorism After 9/11 As we shall see below, it is important to distinguish between the 2001– 2015 period in Polish counter-terrorism law and policy and legislative changes which have ensued since 2016. The election of the far-right Law

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and Justice party (PiS) in November 2015 has seen Polish criminal justice move in a decidedly illiberal direction, with counter-terrorism being used to justify a series of dramatic reforms to the Criminal Procedural Code, and body of counter-terrorism legislation. The combined effect of these provisions, according to Amnesty International (2017: 18) is to create ‘conditions for violations of the rights to liberty, privacy, fair trial, expression, peaceful assembly and non-discrimination’. This section will first discuss legislative changes between 2001 and 2015, which were mainly influenced by the EU. It will then provide an overview of the domestic counter-terrorism legislation including the 2016 reforms.

European Legislation The implementation of UN and, since 2004, EU regulations have contributed significantly to the development of counter-terrorism law and policy in the Polish legal system (Daranowski, 2015; Gogolewska, 2005). The bilateral relationship with the US was strengthened by Poland’s political and military support of the ‘war on terror’ to the extent that the country has been described as the American ‘Trojan horse’ in Europe (Adamczak, 2007; Dunn, 2002; Koblan, 2014). Reports of the presence of secret detention sites for the benefit of the CIA’s interrogation programme from 2002 to 2005 brought the relations between the two countries to the attention of world public opinion. The Polish government has ultimately acknowledged the presence of such detention sites on their territory, subsequent to a finding by the European Court of Human Rights that Poland was complicit in the US’s rendition, secret detention and torture of alleged terrorism suspects.6 However, the domestic investigation against high level officials involved in the controversy  has been pending since 2008 and appears to be ongoing (Amnesty International, 2016a; Carey, 2013a, 2013b; Gruszczak, 2009). Whilst the US influence was particularly evident in Poland’s foreign policy and military response to 9/11, the EU influence manifested itself in changes in the legal system, enhanced intelligence sharing and increased cooperation on security issues (Gogolewska, 2005). The Polish govern-

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ment started the process of harmonisation of national legislation with EU regulations years before accession in 2004, and was later one of the most active newcomers concerning counter-terrorism (Daranowski, 2015; Karolewski, 2015). For instance, Poland anticipated the EU regulations on money laundering with a 2000 Act that qualified terrorist acts as a money laundering activity and criminalised them.7 The adequacy of the provisions of the Act was later reassessed when Poland implemented UN Resolution 1373 (Daranowski, 2015; United Nations Security Council, 2001, 2002, 2003, 2004, 2006)8 leading to amendments in 2002 to the national legislation on money laundering and the inclusion of measures that aim to prevent terrorism financing.9 Further changes were introduced in 2009, when a terrorism financing offence was added to the Polish criminal code (Daranowski, 2015; Filipkowski, 2011; Michalska-Warias, 2011).10 The revision of the 2000 Act also represented the first attempt to define terrorism in the Polish law, although the 2002 Act merely stated that a terrorist act included offences against peace and humanity, war crimes, and crimes against general safety (Daranowski, 2015; Zieba, 2015). According to Daranowski (2015) the first real attempt to define terrorism in the Polish legislation occurred in 2004, this time as a result of the 2002 European Council framework decision on combating terrorism.11 The Polish criminal code (Article 115 § 20) was thus amended to include a legal definition of terrorism as follows12: An act subject to punishment of deprivation of liberty, with the upper limit of at least five years, committed in order to: 1. Seriously intimidate many persons, or; 2. Compel the public authority of the Republic of Poland, or of another state, or of an international organisation to undertake or abandon specific actions, or; 3. Cause serious disturbance to the constitutional system or the economy of the Republic of Poland, or of another state, or of an international organisation; And a threat to commit such an act.

It must be noted that, whilst the Council Framework Decision includes a list of specific offences that can be defined as terrorism, the Polish crimi-

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nal code does not include any exhaustive list of terrorist offences. Instead it adumbrates a broad concept of a terrorist offence committed via any criminal offence with an upper limit of at least five years (Libront, 2014; Michalska-Warias, 2011). According to Oleksiewicz (2014), this choice eliminated the need to regularly update the definition to include, for instance, new terrorists’ modi operandi. However, as several commentators have pointed out (Daranowski, 2015; Libront, 2014; MichalskaWarias, 2011; Oleksiewicz, 2014; Zieba, 2015), as a consequence of this decision the Polish criminal code does not penalise terrorism directly. Furthermore, the definition of terrorism is vague, difficult to interpret and much broader than the EU definition in that a particular aim and an upper limit of at least five years’ imprisonment are the only two criteria required to prove a terrorist offence. Another EU regulation that had a considerable impact on the workings of the Polish criminal justice system is the 2002 Council Framework Decision concerning the European arrest warrant (EAW).13 In 2004, Poland modified its criminal procedure to implement the EU regulations on the EAW and surrender procedures, and, as noted in the previous chapter, has made liberal use of the EAW procedures against Polish citizens living in the UK and other European countries in the ensuing period (Daranowski, 2015; European Commission, 2017; House of Commons, 2015). The influence of the EU is also evident in the criminalisation of new acts. For example, a 2011 Act added Art. 255a to the Polish criminal code which envisages up to five years’ imprisonment for a person involved in the public presentation and dissemination of content that could facilitate the perpetration of a terrorist offence (Libront, 2014). This provision was the result of the approval of a 2008 Council framework decision amending the previous 2002 framework decision on combating terrorism.14

Domestic Legislation Besides policy and legislation changes dictated by the UN and EU, Poland also put forward domestic solutions to terrorist threats. These include changes to the law on the state of emergency, martial law and law

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on the state of natural disaster, which now include terrorist acts as one of the circumstances that justify the declaration of an emergency by the President of the Republic of Poland. The Polish government also created new collective bodies to improve coordination and information sharing among government institutions and services (Daranowski, 2015; Gogolewska, 2005). A reorganisation of law enforcement agencies in the country had started in the 1990s, when the Police Act replaced the Citizens’ Militia with the national police, and introduced anti-terrorist units.15 While the police are usually in charge of investigations, other armed forces such as the Military Gendarmerie often participate in counter-terrorism activities (Daranowski, 2015; Jaloszynski, 2010; Tomaszewski, 2014). In 2002 intelligence services were also reorganised and two government agencies—the Internal Security Agency (Agencja Bezpieczeństwa Wewnętrznego, ABW) and the Foreign Intelligence Agency (Agencja Wywiadu, AW)—were set up under the authority of the Prime Minister with the task of ‘preventing and eliminating terrorism’ (Gruszczak, 2009; Rihackova, 2006; Zieba, 2015).16 The 2003 Law on Foreigners is another example of national legislation used to introduce counter-terrorism provisions, this time through amendments to immigration law. The Act, later amended in 2010, lists ‘national security’ and the ‘protection of security and public order’ as reasons to refuse to grant fixed-term resident permits to non-Polish citizens who are suspected of being involved in terrorist-related activities.17 The law also provides that information on suspects who are denied access to the country is entered in a national information system as well as in the EU Schengen Information System (SIS). Such information can be stored for a maximum of five years if a threat to national security was the main reason to refuse access to the country (Daranowski, 2015). The most controversial provision of the Law on Foreigners concerns the fact that the reasons for inclusion in the two information systems can remain undisclosed to the applicant who is therefore denied entry to the country but cannot access the evidence collected against him or her (Daranowski, 2015; Helsinki Foundation for Human Rights, 2010; UN Human Rights Committee, 2010). With the exception of such immigration provisions, which are possibly in contravention of international human rights standards, until 2015 Poland seemed to have developed an incoherent, yet fair, body of coun-

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ter-terrorism legislation (Daranowski, 2015; Gogolewska, 2005). Unlike some other countries, Poland does not have specialised courts for terrorism prosecution, and all procedural regulations established for other criminal cases continue to apply to terrorism offences. Such was the state of the law until recently that Daranowski (2015: 456) was able to conclude that ‘[t]he adopted regulations and their application do not indicate any disregard of human rights’. Unfortunately, however, the position has changed dramatically in the last few years, with Poland’s ruling party, the right-wing Law and Justice Party (PiS), embarking on a series of reforms with some very significant developments for counter-terrorism legislation (Human Rights Watch, 2017). The first major change introduced in 2016 was the amendment to the Police Act, which was approved by the Parliament on 4 February.18 The Act introduced significant changes to the procedural rules on matters such as access to telecommunication data by security services and the police. According to the new legislation, courts can extend surveillance for a maximum of 12 months if new circumstances to prevent or detect a crime, or identify a perpetrator or obtain evidence, have emerged, without a requirement to consider proportionality (Commissioner for Human Rights, 2016a). Electronic metadata can be accessed by the police and other law enforcement agencies without the knowledge and consent of the suspect and with courts only exercising an optional, follow-up control over such data, described by the Commission for Human Rights and other stakeholders as ‘illusory’ in nature (Amnesty International, 2016d; Council of Europe, 2016; Commissioner for Human Rights, 2016a). Confidentiality of information covered by professional privilege is also jeopardised as secret surveillance of lawyers’ communication is no longer prohibited (Amnesty International, 2017; Kulesza, 2016). These changes to the rules governing evidence gathering assume particular significance in light of the amendment to the Criminal Procedural Code introduced in March 2016.19 The new Art. 168a provides that illegally obtained evidence (e.g. evidence obtained through illegal surveillance) can be considered admissible in criminal proceedings unless it was obtained under a very limited number of circumstances (e.g. homicide, deprivation of liberty) (Amnesty International, 2016a). The centrepiece of PiS’s reforms in this area, however, was the CounterTerrorism Act enacted in June 2016.20 The Act consolidated sweeping

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powers in the hands of the Internal Security Agency (ABW), with no independent oversight mechanism, and, according to Amnesty International (2017: 34), ‘includes some of the most draconian surveillance powers in the EU’ (see also Amnesty International, 2016a, 2016b, 2016c). Powers given to the ABW under the Act include powers to access personal data recorded by government/private agencies (such as bank statements and tax reports) and to block specific websites without prior judicial authorisation to prevent a terrorist attack. The Act also increased surveillance powers, particularly the use of covert surveillance measures (e.g. wire-tapping, monitoring of electronic communications, telecommunication networks and devices). While surveillance activities targeting Polish citizens require prior judicial authorisation, those targeting nonnationals can be carried out without any judicial oversight for the first three months (after which a court order is needed). These powers may be deployed in any situation where there is a ‘fear’ that a foreigner may be involved in terrorist activities, rather than a ‘reasonable suspicion’ (Amnesty International, 2016a, 2017). Similar to France (see Chap. 4), the Polish government in the 2016 Act reviewed the safeguards around the use of lethal force by law enforcement agents, and now provide for specific occasions in which ‘special use of force’ can be part of counter-terrorism-related activities. The CounterTerrorism Act also increased the number of days suspects can be detained by the police without charge—now 14 days—and made arrests possible based on reasonable suspicion that they intend to commit or committed a terrorist act. Suspicion that a terrorist act may occur is also the ground for limitations on freedom of assembly and the power to search individuals (Amnesty International, 2016a; Human Rights First, 2016). Finally, the Act introduced the concept of ‘terrorist incidents’ in the Polish criminal code, which are defined as ‘situations suspected of having occurred as a result of a terrorism-related crime, or threats of such a crime occurring’ (Art. 2 § 7). As we will discuss in the next section, this broad definition has been the subject of much criticism, from the Polish Commissioner for Human Rights (2016b, 2016c), the UN Human Rights Committee (2016) and Amnesty International (2016a).

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Forms of Contagion in Poland As is evident from the above discussion, in the period between 2001 and 2015, the ‘contagion’ phenomenon was less in evidence in Poland than in other countries, including the UK and France, probably because of the relatively low level of legislative activity in this area (in turn reflecting the low threat levels). In contrast, the period between 2015 and 2017 provides ample evidence in support of the ‘contagion’ thesis, not least as a result of the trifecta of recent legislation outlined above (namely, the Police Act, Criminal Procedure Act and Counter-Terrorism Act). The analysis below examines these developments in line with the categories of contagion outlined in Chap. 1.

Use of Terrorism as a ‘Picklock’ The period following the commission of a terrorist attack may represent a ‘window of opportunity’ for governments with the heat of the emergency providing convenient political cover for controversial legislative measures (Cesoni, 2007; Kostakopoulou, 2008). Relevant to the discussion here is Poland’s implementation of the EAW, presented by the EU in the aftermath of 9/11 as a critical counter-terrorism measure (Mackarel, 2007; Murphy, 2012) but applied by Poland to all manner of minor offences, including theft of very low value items. According to the reports of the Council of the European Union (2008, 2010a, 2010b, 2011, 2013, 2014), Poland has consistently issued the highest number of requests to other countries. This has led to complaints by other Member States, particularly the UK, and the British House of Commons (2015, 2017) has specifically identified some countries such as Poland, who have used the EAW to request the extradition of individuals for relatively minor crimes as particularly problematic due to lack of prosecutorial discretion. In July 2015 a new Act came into force in Poland to reduce the number of warrants issued by Polish courts.21 Despite these legislative changes, the number of EAWs issued by Poland remains much higher than the EU average (European Commission, 2017), illustrating how a previously controversial and politically sensitive measure, legitimated in the aftermath of 9/11

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as a key weapon in the fight against terror, has consistently been applied, by Poland and other EU Member States, to a range of minor offences (see further Hamilton, 2018). As noted in Chap. 1, moreover, the more recent spate of terrorist attacks in Europe has provided abundant opportunities for authoritarian states to pass their repression off as ‘counter-terrorism’. This is unfortunately true of Poland where the election of the right-wing, Eurosceptic Law and Justice Party (PiS) in November 2015 has witnessed a flurry of reforms on counter-terrorism, against the backdrop of other decidedly undemocratic measures, including direct attacks on the independence of the judiciary and other state institutions.22 Between January 2016 and February 2017, the Sejm (Polish Parliament) approved a series of counter-terrorism measures that profoundly weakened fundamental rights such as privacy and due process. In March 2016, for example, important amendments to the Criminal Procedure Code were introduced, notably, on counter-terrorism grounds, which rendered it permissible to use illegally obtained evidence at all criminal trials (Human Rights Watch, 2017). As observed by Kusak (2016) these changes open up a broad possibility to use evidence gathered by intelligence services in criminal proceedings and should be understood in the context of reforms to the Police Act (discussed below) which significantly expanded the surveillance powers of the security services and the police. Thus, for example, surveillance of a Polish citizen without a court order would be admissible in court, in violation of fair trial rights, equality of arms and the right to privacy. The attacks in Paris and Brussels in 2015 and 2016 were also used by Polish authorities to justify the introduction of a key act on counter-terrorism in June 2016 (Deutsche Welle, 2016; The Warsaw Voice, 2016). In the legal and political justification of the provisions that accompanied the main text, the Act was presented as the result of an increased terrorist threat after the Paris and Brussels terrorist attacks, Poland’s participation in the international anti-terrorism coalition as well as Poland being mentioned as a potential target in terrorists’ documents. The need to improve efficiencies in the Polish counter-terrorism apparatus and the (then) impending World Youth Day in Krakow in July 2016 were also mentioned as reasons why new counter-terrorism legislation was needed. Interestingly, the government sought to emphasise that some of the mea-

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sures introduced by the Act such as the prolongation of pre-trial detention, were already in place in other European countries, including the UK and France.23 The urgency of the security situation was even relied on by the President of Poland when requested by the Polish Commissioner for Human Rights to submit the Act for review before the Constitutional Tribunal. Rejecting his request, the Chancellery of the President reported that ‘due to unquestionable threats of international terrorism, the improvement of Poland’s security […] has become necessary, and for this reason the President of Poland signed the act’ (Commissioner for Human Rights, 2016c). The Commissioner subsequently challenged the law before the Constitutional Tribunal in July 2016 (Polskie Radio, 2016).24 Despite these official pronouncements, the attempt to invoke the jihadi terrorist threat as a justification for the legislation was overwhelmingly dismissed by interviewees we spoke to as a pretext or ‘Trojan Horse’.25 As averred above, the Act consolidates sweeping powers in the hands of the Internal Security Agency (ABW), with no independent oversight mechanism. The Act, described by Amnesty International (2017: 34) as containing ‘some of the most draconian surveillance powers in the EU’, allows the ABW to maintain a list of persons suspected of being involved in terrorism-related activities for the purposes of accessing data held by government agencies and provides for very wide surveillance powers in relation to non-Polish citizens  (Panoptykon Foundation, 2016). There is no provision contained within the Act for notifying people of their placement on the list nor is there any process outlined in order to get one’s name removed from it. There was a striking level of consensus amongst the experts we spoke to in Poland that these provisions would likely be used for political purposes.26

‘Blank Cheque’ Legislation The Counter-Terrorism Act of June 2016 is a paradigmatic example of counter-terrorism provisions which, despite targeting terrorism and terrorism-related behaviour, are very broadly drafted and therefore susceptible to abuse (Donohue, 2008, 2012). As mentioned above, the Act extended the definition of terrorism to include ‘terrorist incidents’,

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described by the government as including occasions in which: a Polish citizen ‘comes into contact’ with a person ‘feared’ to be involved in terrorism-related activities; travels to or from regions where an armed conflict involving organisations deemed to be engaged in terrorism-related activities is ongoing; or simply loses his or her ID documents while abroad.27 Amnesty International (2017: 25) has argued that these activities, ‘taken alone, could hardly be considered credible and sufficient evidence that a person was involved in terrorist activities’ Similarly, the Polish Commissioner for Human Rights (2016b, 2016c), in his application to the Constitutional Tribunal, highlighted the vague and imprecise nature of the provisions, particularly the fact that the definition includes the ‘threat of such crimes’. Given that these very loose definitions underpin the exercise of surveillance powers and powers of pre-trial detention under the Act it is arguable that the provisions do not comply with the principle of legal certainty. Indeed, this was the view taken by the UN Human Rights Committee (2016: 2), who described it as ‘broad and imprecise,’ and suggested a revision of the definition that does not give law enforcement agencies such excessive discretion. Before the Counter-Terrorism Act of June 2016, the legal definition of terrorism introduced by the amendment of the criminal code in 2004 had received similar criticisms including from the UN Human Rights Committee (2010), who urged Poland to define such terrorist offences narrowly and in terms of their purpose. As noted, using the upper limit of at least five years’ imprisonment as one of the criteria to identify a ­terrorist act, the Polish definition includes offences which are not listed in the EU definition of terrorism (Daranowski, 2015; Zieba, 2015). For instance, the Polish criminal code punishes the disclosure of information designated as ‘top secret’ or ‘secret’ with a term of imprisonment from three months to five years so that, if the aim of the disclosure is among those listed in Art. 115 § 20, the act could potentially be considered a terrorist offence. Daranowski (2015) notes that these provisions may apply, for instance, to a person who reveals a secret document about the use of illegal surveillance methods or torture by public authorities, even if his or her only aim is to ensure that such malpractice will be addressed effectively. The same 2004 Act that introduced a legal definition of terrorism also amended Art. 258 of the Polish criminal code to introduce a new type of

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aggravated participation in a criminal organisation, that is, the participation in an ‘organised terrorist group or association’. The amendment builds on the criminalisation of the participation in a criminal group, which was already part of the Polish criminal code. The new Art.  258 punishes anyone who participates in an organised criminal group or association, including those ‘of military character’ or which ‘aim to commit an offence of terrorist character’ (Daranowski, 2015; Zubrzycki, 2010). While the punishment is harsher for those involved in terrorist groups (from six months to eight years of imprisonment) than for those involved in organised criminal groups (from three months to five years of imprisonment), some authors noted that the difference between the two types of criminal association is not clarified, particularly with reference to their structure (Filipkowski, 2011; Michalska-Warias, 2011; Wiak, 2012).

The ‘New Normal’ The June 2016 law on counter-terrorism has been described by Amnesty International (2017: 18) as embedding ‘powers in permanent law that would typically be invoked during an exceptional state of emergency’. A number of new departures in terms of criminal procedure can be observed within this Act, such as the introduction of a 14 day detention period (one of the highest in the EU) and the removal of certain safeguards around permissible use of lethal force in the context of counter-terrorism (possibly in breach of international standards; see Amnesty International, FIDH, Human Rights Watch, Open Society European Policy Institute, Reporters without Borders, 2017). Perhaps most concerning, however, is the extent to which the Police Act of February 2016 and the Counter-Terrorism Act of June 2016 represent a consolidation of sweeping powers in the intelligence services, without the usual requirement of a priori judicial oversight. Under the Police Act, for example, electronic metadata, which can be as or more revealing of personal information than content, can be accessed directly by police without a court order. While a court order is required for secret surveillance for a period of three months, which can be extended to 18, the list of crimes that allow courts to authorise secret surveillance activities was

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considered by the Venice Commission to be overly broad, and the procedural safeguards for covert surveillance were described as ‘insufficient’ (Venice Commission, 2016: 31; see also International Commission of Jurists, 2016). It is noteworthy that confidentiality of information covered by professional privilege is also not guaranteed as secret surveillance of lawyer’s communications is not prohibited and may be introduced as evidence in court whenever deemed necessary in the ‘interests of justice’ (Kulesza, 2016). The June 2016 law similarly breaks new ground by granting security agents in the ABW virtually unimpeded access to citizens’ personal data such as bank statements, tax reports and vehicle information (Rydzak, 2016).28 Foreign nationals are particularly vulnerable under the Act. Under Article 9(1), they can be subjected to a range of covert surveillance measures, including wire-tapping, monitoring of electronic communications, and so on where there is a ‘fear’, not even a reasonable suspicion, that they may be involved in terrorism-related activities. The ABW is also given a mandate under the Act to block websites deemed a threat to national security for up to four months and even, in the event that a state of emergency is declared, the power to disable all telecommunications. This development has been described by Rydzak (2016: np) as ‘a first in the democratic world … blurring the boundary between the legitimate, democratic enforcement of state security and outright digital repression’. All of these actions may be taken without prior judicial approval, making for a very significant enhancement of administrative powers.29

Conclusions Given the recent changes in Polish counter-terrorism legislation, and the extent to which they impacted on the rights to liberty, privacy and fair trial (among others), Daranowski’s (2015: 456) conclusion that ‘[t]he adopted regulations and their application do not indicate any disregard of human rights’ no longer appears accurate. 2016 has been a crucial year for Poland as it experienced a series of reforms of its criminal justice system, including amendments to the Police Act and Criminal Procedural Code, and the Counter-Terrorism Act of June 2016. The surveillance

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powers of the police and of intelligence agencies have dramatically increased, often invoking terrorism as a justification, whilst suspects’ rights have been impacted by increased periods of detention in police custody, limited access to evidence and lowered standards for criminal liability. These changes provide strong evidence in support of the ‘contagion’ thesis, particularly in a political context where democratic guarantees such as the organisational and functional independence of the judiciary themselves appear under threat (Human Rights Watch, 2017). As some of our interviewees pointed out, ‘terrorism’ seems to have played a crucial role in the deep reform of the state pursued by the Law and Justice Party since 2015, highlighting the need for careful attention to vague counter-terrorism laws as gateways to abuse, as well as deeper reflection on contemporary uses and abuses of the terrorism problem.

Notes 1. Poland ranks 110th in the 2017 Global Terrorism Index published by the Institute for Economics and Peace (2017). The index is based on data from the Global Terrorism Database, which are collected by the National Consortium for the Study of Terrorism and Responses to Terrorism (START), and analyses the threat of international terrorism in 163 countries. In 2017, France ranked 23rd and the UK ranked 35th in the index. 2. Dekret o postępowaniu doraźnym [Decree on Emergency Proceedings]. Dziennik Ustaw, No. 53, Location 301, 16 November 1945. 3. Konwencja w sprawie przestępstw i niektórych innych czynów popełnionych na pokładzie statków powietrznych, sporządzona w Tokio dnia 14 września 1963 r. [Convention on Offences and Certain Other Acts Committed on Board of Aircraft, Tokyo, 14 September 1963]. Dziennik Ustaw, No. 15, Location 147, 1971; Konwencja o zwalczaniu bezprawnego zawładnięcia statkami powietrznymi, sporządzona w Hadze dnia 16 grudnia 1970 r. [Convention for the Suppression of Unlawful Seizure of Aircraft, The Hague, 16 December 1970]. Dziennik Ustaw, No. 25, Location 181, 1972; Konwencja o zwalczaniu bezprawnych czynów skierowanych przeciwko bezpieczeństwu lotnictwa cywilnego, sporządzona w Montrealu dnia 23 września 1971 r.

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[Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, Montreal, 23 September 1971]. Dziennik Ustaw, No. 8, Location 37, 1976; Konwencja o zapobieganiu przestępstwom i karaniu sprawców przestępstw przeciwko osobom korzystającym z ochrony międzynarodowej, w tym przeciwko dyplomatom, sporządzona w Nowym Jorku dnia 14 grudnia 1973 r. [Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomats Agents, New York, 14 December 1973]. Dziennik Ustaw, No. 37, Location 168, 1983; Oświadczenie Rządowe z dnia 3 marca 1989 r. w sprawie wejścia w życie konwencji o ochronie fizycznej materiałów jądrowych wraz z załącznikami I i II, otwartej do podpisu w Wiedniu i w Nowym Jorku w dniu 3 marca 1980 r. [Convention on the Physical Protection of Nuclear Material, Vienna, 3 March 1980]. Dziennik Ustaw, No. 17, Location 94, 1989. 4. Protokół W Sprawie Przeciwdziałania Bezprawnym Czynom Przeciwko Bezpieczeństwu Stałych Platform Umieszczonych Na Szelfie Kontynentalnym, Sporządzony W Rzymie Dnia 10 Marca 1988 R. [Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, Rome, 10 March 1988]. Dziennik Ustaw, No. 22, Location 211, 1992; Oświadczenie Rządowe z dnia 19 sierpnia 1994 r. w sprawie ratyfikacji przez Rzeczpospolitą Polską Konwencji w sprawie przeciwdziałania bezprawnym czynom przeciwko bezpieczeństwu żeglugi morskiej, sporządzonej w Rzymie dnia 10 marca 1988 r. [Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, Rome, 10 March 1988]. Dziennik Ustaw, No. 129, Location 636, 1994; Międzynarodowa Konwencja przeciwko braniu zakładników, sporządzona w Nowym Jorku dnia 8 grudnia 1979 r. [International Convention against the Taking of Hostages New  York, 17 December 1979]. Dziennik Ustaw, No. 106, Location 1123, 2000. 5. Europejska konwencja o zwalczaniu terroryzmu, sporządzona w Strasburgu dnia 27 stycznia 1977 r. [European Convention on the Suppression of Terrorism, 27 January 1977]. Dziennik Ustaw, No. 117, Location 557, 1996. 6. Al Nashiri v. Poland (application no. 28761/11) and Husayn (Abu Zubaydah) v. Poland (no. 7511/13). 7. Ustawa o przeciwdziałaniu wprowadzaniu do obrotu finansowego wartości majątkowych pochodzących z nielegalnych lub nieujawnionych źródeł. Dziennik Ustaw, No. 116, Location 1216, 2000.

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8. United Nations Security Council Resolution S/RES/1373, 28 September 2001. 9. Ustawa o zmianie ustawy o przeciwdziałaniu wprowadzaniu do obrotu finansowego wartości majątkowych pochodzących z nielegalnych lub nieujawnionych źródeł. Dziennik Ustaw, No. 180, Location 1500, 2002. 10. Ustawa o zmianie ustawy o przeciwdziałaniu wprowadzaniu do obrotu finansowego wartości majątkowych pochodzących z nielegalnych lub nieujawnionych źródeł oraz o przeciwdziałaniu finansowaniu terroryzmu oraz o zmianie niektórych innych ustaw. Dziennik Ustaw, No. 166, Location 1317, 2009. 11. Council Framework Decision of 13 June 2002 on Combating Terrorism (2002/475/JHA). 12. Ustawa o zmianie ustawy—Kodeks karny oraz niektórych innych ustaw. Dziennik Ustaw, No. 93, Location 889, 2004. 13. Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures between Member States (2002/584/JHA). 14. Council Framework Decision of 28 November 2008 amending Framework Decision 2002/475/JHA on combating terrorism (2008/919/JHA). 15. Ustawa o Policji. Dziennik Ustaw, No. 30, Location 179, 1990; Ustawa o zmianie ustaw: o Urzędzie Ministra Spraw Wewnętrznych, o Policji, o Urzędzie Ochrony Państwa, o Straży Granicznej Oraz Niektórych Innych Ustaw. Dziennik Ustaw, No. 104, Location 515, 1995. 16. Ustawa o Agencji Bezpieczeństwa Wewnętrznego oraz Agencji Wywiadu. Dziennik Ustaw, No. 74, Location 676, 2002. 17. Ustawa o cudzoziemcach. Dziennik Ustaw, No. 128, Location 1175, 2003; Ustawa o zmianie ustawy o cudzoziemcach oraz niektórych innych ustaw. Dziennik Ustaw, No. 239, Location 1593, 2010. 18. Ustawa o zmianie ustawy o Policji oraz niektórych innych ustaw. Dziennik Ustaw, No. 0, Location 147, 2016. 19. Ustawa o zmianie ustawy  – Kodeks postępowania karnego oraz niektórych innych ustaw. Dziennik Ustaw, No. 0, Location 437, 2016. 20. Ustawa o działaniach antyterrorystycznych. Dziennik Ustaw, No. 0, Location 904, 2016. 21. Ustawa o rzeczach znalezionych. Dziennik Ustaw, No. 0, Location 397, 2015. 22. This is described by the Law and Justice party as the ‘good change,’ which is characterised by a reorientation in foreign policy based on pes-

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simism as regards the future of European integration, the protection of national sovereignty, and the opposition between traditional Polish values and those typical of Western European liberal democracies (see further Balcer et al., 2016). 23. The justification of the provisions of the Counter-Terrorism Act, as well as the main text, can be accessed at: https://www.rpo.gov.pl/sites/default/ files/Projekt%20ustawy%20antyterrorystycznej%20-%20wersja%20 z%205%20maja%202016_0.pdf. 24. As result of recent reforms of the administration of justice and the following Constitutional Tribunal crisis, the Commissioner has withdrawn the motion against the Counter-terrorist Act of June 2016 (Commissioner for Human Rights, 2018; Human Rights Watch, 2017). 25. Interviews held on 16, 17, 18 and 19 January 2017. 26. Ibid. 27. Rozporządzenie Ministra Spraw Wewnętrznych i Administracji w sprawie katalogu incydentów o charakterze terrorystycznym. Dziennik Ustaw, No. 0, Location 1092, 2016. 28. These reforms should be considered alongside legislative changes to criminal procedure in March 2016 permitting evidence found illegally to be used in court. These changes open up the broad possibility that ­evidence gathered illegally by intelligence services will be used in criminal proceedings (Kusak, 2016; Amnesty International, 2017). 29. Ustawa o zmianie ustawy o Policji oraz niektórych innych ustaw. Dziennik Ustaw, No. 0, Location 147, 2016.

References Adamczak, J. (2007). Poland’s Engagement in the Global War on Terrorism: Strategic Level Political and Military Implications. Carlisle, PA: US Army War College. Amnesty International. (2016a). Poland (Submission to the United Nations Human Rights Committee, 118th Session, 17 Oct.–04 Nov. 2016 No. EUR 37/4849/2016). London: Amnesty International. Amnesty International. (2016b). Poland: Counter-terrorism bill would give security service unchecked power (Amnesty International Public Statement No. EUR 37/4263/2016). London: Amnesty International.

3  Counter-Terrorism in Poland 

69

Amnesty International. (2016c). Poland: Dismantling rule of law? (Amnesty International submission for the UN Universal Periodic Review – 27th session of the UPR Working Group, April/May 2017 No. EUR 37/5069/2016). London: Amnesty International. Amnesty International. (2016d). Poland: New surveillance law a major blow to human rights (Amnesty International Public Statement No. EUR 37/3357/2016). London: Amnesty International. Amnesty International. (2017). Dangerously Disproportionate: The ever-expanding national security state in Europe. London: Amnesty International. Amnesty International, FIDH, Human Rights Watch, Open Society European Policy Institute, Reporters without Borders (2017) Open Letter to the College of Commissioners regarding the situation in Poland, 16 February. Retrieved from: https://www.amnesty.org/download/Documents/EUR3756842017 ENGLISH.PDF. Balcer, A., Buras, P., Gromadzki, G., & Smolar, E. (2016). Change in Poland, but what change? Assumptions of Law and Justice party foreign policy. Warsaw: Stefan Batory Foundation. BBC. (2012, November 20). Polish man “planned to blow up parliament.” Retrieved from http://www.bbc.com/news/world-europe-20405741. Carey, H.  F. (2013a). European Supranational Monitoring of Intelligence Agency Collaboration in Counterterrorism in the Balkans and Eastern Europe. In G. Andreopoulos (Ed.), Policing Across Borders: Law Enforcement Networks and the Challenges of Crime Control (pp.  69–88). New  York, NY: Springer. Carey, H.  F. (2013b). The Domestic Politics of Protecting Human Rights in Counter-Terrorism: Poland’s, Lithuania’s, and Romania’s Secret Detention Centers and Other East European Collaboration in Extraordinary Rendition. East European Politics & Societies, 27(3), 429–465. Cesoni, M. L. (Ed.). (2007). Nouvelles méthodes de lutte contre la criminalité. La normalisation de l’exception. Brussels: Bruylant. Commissioner for Human Rights. (2016a). Wniosek do Trybunał Konstytucyjny w sprawie ustawa o zmianie ustawy o Policji oraz niektórych innych ustaw. Warsaw: Rzecznik Praw Obywatelskich. Commissioner for Human Rights. (2016b). Wniosek do Trybunał Konstytucyjny w sprawie ustawy antyterrorystycznej. Warsaw: Rzecznik Praw Obywatelskich. Commissioner for Human Rights. (2016c, July 11). The Commissioner for Human Rights Challenges the Anti-Terrorism Act before the Constitutional Tribunal. Retrieved from https://www.rpo.gov.pl/en/content/commissionerhuman-rights-challenges-anti-terrorism-act-constitutional-tribunal.

70 

C. Hamilton

Commissioner for Human Rights. (2018, May 2). Adam Bodnar withdrew form the Constitutional Tribunal motion regarding the Act of 10 June 2017 on Counter-Terrorism Measures. Retrieved from https://www.rpo.gov.pl/en/ content/adam-bodnar-withdrew-form-constitutional-tribunal-motion-regarding-act-10-june-2017-counter. Council of Europe: Commissioner for Human Rights, Report by Nils Muižnieks Commissioner for Human Rights of the Council of Europe Following His Visit to Poland From 9 to 12 February 2016, 15 June 2016, CommDH(2016)23. Council of the European Union. (2008). Replies to questionnaire on quantitative information on the practical operation of the European arrest warrant  – Year 2007 (No. 10330/2/08 REV 2). Brussels: Council of the European Union. Council of the European Union. (2010a). Replies to questionnaire on quantitative information on the practical operation of the European arrest warrant  – Year 2008 (No. 9734/6/09 REV 6). Brussels: Council of the European Union. Council of the European Union. (2010b). Replies to questionnaire on quantitative information on the practical operation of the European arrest warrant – Year 2009 (No. 7551/7/10 REV 7). Brussels: Council of the European Union. Council of the European Union. (2011). Replies to questionnaire on quantitative information on the practical operation of the European arrest warrant  – Year 2010 (No. 9120/2/11 REV 2). Brussels: Council of the European Union. Council of the European Union. (2013). Replies to questionnaire on quantitative information on the practical operation of the European arrest warrant  – Year 2011 (No. 9200/7/12 REV 7). Brussels: Council of the European Union. Council of the European Union. (2014). Replies to questionnaire on quantitative information on the practical operation of the European arrest warrant  – Year 2012 (No. 11500/14). Brussels: Council of the European Union. Daranowski, P. (2015). Poland. In K.  Roach (Ed.), Comparative Counter-­ Terrorism Law (pp.  425–456). Cambridge: Cambridge University Press. Retrieved from http://lib.myilibrary.com/Open.aspx?id=811314. Deutsche Welle. (2016, March 24). Poland joins Hungary in planning stringent anti-terrorism laws in wake of Brussels attacks. Retrieved from http://www. dw.com/en/poland-joins-hungary-in-planning-stringent-anti-terrorismlaws-in-wake-of-brussels-attacks/a-19141781. Donohue, L. K. (2008). The Cost of Counterterrorism: Power, Politics, and Liberty. Cambridge: Cambridge University Press.

3  Counter-Terrorism in Poland 

71

Donohue, L. K. (2012). Transplantation. In V. V. Ramraj, M. Hor, K. Roach, & G.  Williams (Eds.), Global Anti-Terrorism Law and Policy (pp.  67–87). Cambridge: Cambridge University Press. Dunn, D.  H. (2002). Poland: America’s new model ally. Defence Studies, 2(2), 63–86. European Commission. (2017). Replies to questionnaire on quantitative information on the practical operation of the European arrest warrant  – Year 2015 (Commission staff working document No. SWD(2017) 320 final). Brussels: European Commission. Filipkowski, W. (2011). Anti-Terrorist Financing Regulations in Poland – Past and Present Issues. Białostockie Studia Prawnicze, 10, 81–94. Frankowski, S., & Wasek, A. (1993). Evolution of the Polish Criminal Justice System After World War Two  – An Overview. European Journal of Crime, Criminal Law and Criminal Justice, 1(2), 143–166. Gogolewska, A. (2005, April). Polish War on Terror: External Roots, Internal Dynamics and Ambitions to Become a Global Player. Presented at the Security sector governance and the war on terror, Moscow. Gruszczak, A. (2009). The Polish Intelligence Services. In T. Jäger & A. Daun (Eds.), Geheimdienste in Europa (pp.  126–151). Wiesbaden: VS Verlag für Sozialwissenschaften. https://doi.org/10.1007/978-3-531-91491-6_6. Hamilton, C. (2018). The European Union: Swords or shield? Comparing counterterrorism law in the EU and the USA after 9/11. Theoretical Criminology, 22(2), 206–225. Helsinki Foundation for Human Rights. (2010). Comments of Helsinki Foundation for Human Rights on the replies provided by the Government of Poland to the list of issues (CCPR/C/POL/Q/6) raised by the Human Rights Committee to be taken up with the consideration of the sixth period report on Poland (CCPR/C/POL/6) regarding the implementation of the International Covenant on Civil and Political Rights (Submission to the 100th Session of the Human Rights Committee). Warsaw: Helsinki Foundation for Human Rights. House of Commons. (2015). The European Arrest Warrant (No. Briefing Paper No. 07016). London: House of Commons. House of Commons. (2017). The European Arrest Warrant (No. Briefing Paper No. 07016). London: House of Commons. Human Rights First. (2016). Poland’s Anti-Terror Law. New York, NY: Human Rights First. Human Rights Watch. (2017). Eroding Checks and Balances: Rule of Law and Human Rights Under Attack in Poland. New  York: Human Rights Watch.

72 

C. Hamilton

Retrieved from https://www.hrw.org/report/2017/10/24/eroding-checksand-balances/rule-law-and-human-rights-under-attack-poland. Institute for Economics and Peace. (2017). Global Terrorism Index 2017: Measuring and understanding the impact of terrorism. Sydney: Institute for Economics and Peace. International Commission of Jurists. (2016). Bulletin: counter-terrorism and human rights. European Human Rights Law Review, E.H.R.L.R. 487. Jaloszynski, K. (2010). Bureau of Antiterrorist Operations – the Polish Police Counter Terrorist Unit as Compared to European Units. Internal Security, 1(2), 53–63. Karolewski, I. P. (2015). The transformation of EU governance, identity making and the counterterrorism policies of the EU. In I. P. Karolewski & M. Sus (Eds.), The Transformative Power of Europe (pp. 111–138). Wrocław: Nomos. Koblan, A. (2014). Political Aspects of CEE-Countries Participation in American Anti-Terrorism Campaign (2001–2011). Czech-Polish Historical and Pedagogical Journal, 6(1), 98–111. Kostakopoulou, D. (2008). How to do Things with Security Post 9/11. Oxford Journal of Legal Studies, 28(2), 317–342. Krajewski, K. (2004). Crime and Criminal Justice in Poland. European Journal of Criminology, 1(3), 377–407. Krajewski, K. (2012). Prosecution and Prosecutors in Poland: In quest of independence. Crime and Justice, 41, 75–116. Krajewski, K. (2013). Penal Development in Poland: New or Old Punitiveness? In T. Daems, van Zyl Smit, & S. Snacken (Eds.), European Penology? (pp. 377–407). Oxford: Hart Publishing. Kulesza, J. (2016, April 25). As Poles shift right, democracy runs scarce. OpenDemocracy. Available at: https://www.opendemocracy.net/digitaliberties/joanna-kulesza/as-poles-shift-right-democracy-runs-scarce. Kusak, M. (2016). Mutual admissibility of evidence in criminal matters in the EU: A study of telephone tapping and house search. IRCP Research Series. Volume 53. Available at: https://prawo.amu.edu.pl/__data/assets/pdf_file/0011/326909/ IRCP-53-M-Kusak-Mutual-admissibility-E-version.pdf. Lazerges, C. (2003). La dérive de la procédure pénale. Revue de Science Criminelle, 644. Libront, K. (2014). Definition of Terrorist Act in International Law and Polish Criminal Law. Problems and Policy Implications. In M.  Milosevic & K. Rekawek (Eds.) (pp. 14–26). Amsterdam: IOS Press.

3  Counter-Terrorism in Poland 

73

Mackarel, M. (2007). ‘Surrendering’ the Fugitive—The European Arrest Warrant and the United Kingdom. The Journal of Criminal Law, 71(4), 362–381. Michalska-Warias, A. (2011). Fighting terrorism in Polish criminal law  – the influence of EU legislation. Białostockie Studia Prawnicze, 10, 157–170. Murphy, C. C. (2012). EU Counter-Terrorism Law: Pre-emption and the Rule of Law. Oxford: Hart Publishing. Oleksiewicz, I. (2014). The crime of terrorism in the Polish law. Zeszyty Naukowe WSIZiA, 1(16), 176–188. Panoptykon Foundation. (2016, April 28). New Polish Anti-terrorism Law: every foreigner is a potential threat. Retrieved from https://en.panoptykon. org/articles/new-polish-anti-terrorism-law-every-foreigner-potential-threat. Polskie Radio. (2016, July 12). Ombudsman lodges complaint against new anti-­ terror law to Poland’s top court. Retrieved from http://www.dw.com/en/ poland-joins-hungary-in-planning-stringent-anti-terrorism-laws-in-wake-ofbrussels-attacks/a-19141781. Pratt, J. (2007). Penal Populism. London: Routledge. Rihackova, V. (2006). Counterterrorism policies in Central Europe. Prague: EUROPEUM Institute for European Policy. Rydzak, J. (2016). ‘Now Poland’s Government is Coming after the Internet’, Foreign Policy, 10th June. Available at: https://foreignpolicy.com/2016/06/10/ now-polands-government-is-coming-after-the-internet/. Snacken, S. (2010). Resisting punitiveness in Europe? Theoretical Criminology, 14(3), 273–292. The Warsaw Voice. (2016, June 13). Poland’s lower house adopts anti-terrorism bill. Retrieved from http://www.warsawvoice.pl/WVpage/pages/article. php/35708/news. Tomaszewski, P. (2014). Participation of the Military Gendarmerie in the Fight against Terrorism. Historia i Polityka, 12(19), 77–81. UN Human Rights Committee. (2010). Consideration of reports submitted by States parties under article 40 of the Covenant. Concluding observations of the Human Rights Committee on Poland (No. CCPR/C/POL/CO/6). Geneva: United Nations Human Rights Committee. UN Human Rights Committee. (2016). Concluding observations on the seventh periodic report of Poland (No. CCPR/C/POL/CO/7). Geneva: United Nations Human Rights Committee.

74 

C. Hamilton

United Nations Security Council. (2001). Report to the Committee established pursuant to resolution 1373 (2001) concerning counter-terrorism (No. S/2001/1275). New York, NY: United Nations. United Nations Security Council. (2002). Information additional to the report on the implementation by Poland of Security Council resolution 1373 (2001) submitted to the Counter-Terrorism Committee on 21 December 2001 (No. S/2002/677). New York, NY: United Nations. United Nations Security Council. (2003). Second supplementary report of Poland on the implementation of resolution 1373 (2001) submitted to the Counter-­ Terrorism Committee (No. S/2003/271). New York, NY: United Nations. United Nations Security Council. (2004). Fourth report on the implementation by Poland of Security Council resolution 1373 (2001) submitted to the Counter-­ Terrorism Committee (No. S/2004/919). New York, NY: United Nations. United Nations Security Council. (2006). Report of the republic of Poland to the Counter-Terrorism Committee (No. S/2006/284). New York, NY: United Nations. Venice Commission. (2016). Poland. Opinion on the Act of 15 January 2016 amending the Police Act and certain other acts (No. CDL-AD(2016)012). Strasbourg: European Commission for Democracy through Law, Council of Europe. Wiak, K. (2012). Offence of a Terrorist Nature in Polish Penal Law. In K. Wiak (Ed.), Terrorism and Criminal Law (pp. 125–186). Lublin: Wydawnictwo KUL. Zieba, A. (2015). Counterterrorism Systems of Spain and Poland: Comparative Studies. Przeglad Politologiczny, 3, 65–78. Zubrzycki, W. (2010). Poland in the System of the International Cooperation in the Scope of Physical Elimination of Terrorism in the European Union. Internal Security, 1(2), 65–74.

4 Counter-Terrorism in France

Abstract  The chapter charts France’s extensive experience of counter-­ terrorism, including radical Islamic terrorism, prior to the Twin Tower attacks, before proceeding to an overview of post-9/11 domestic and European Union legislation. In relation to contagion, the chapter finds exceptional powers, accrued as part of the fight against terror, have been historically applied to drugs, weapons and ‘organised crime’ offences. More recently, this trend has been continued with the ‘opportunistic’ application of state of emergency search powers to drugs and weapons offences to form the majority of prosecutions resulting from the state of emergency measures. Keywords  Contagion • Counter-terrorism • Criminal justice • France

Parts of this chapter draw on an article by C. Hamilton and G. Berlusconi (2018) ‘Counter-terrorism, contagion and Criminology: The Case of France’, Criminology & Criminal Justice, 18(5): 568–584. The authors are grateful to Sage for granting permission for reuse of this material.

© The Author(s) 2019 C. Hamilton, Contagion, Counter-Terrorism and Criminology, Crime Prevention and Security Management, https://doi.org/10.1007/978-3-030-12322-2_4

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Introduction Like its close neighbour, the UK, France has frequently been on the ‘bleeding edge’ of terrorism (Shapiro and Suzan, 2003), experiencing since World War II a broad range of terrorist threats, including anti-­ colonial violence, intrastate violence by home-grown terrorist groups and transnational terrorism (Cettina, 2003; Gregory, 2003; Shapiro, 2010). This does not imply, however, a similar political stance towards counter-­ terrorism powers and legislation. Unlike the UK, the French experience with terrorism may have fostered a more tolerant approach towards invasive domestic security practices and laws, or as Foley (2013) puts it, a ‘normative consensus’ on security issues, rendering a comparison of the two jurisdictions all the more interesting (Gregory, 2003; Schmitt, 2010). In order to elaborate this more fully, this chapter follows the structure adopted in the previous two chapters by briefly mapping the historical development of counter-terrorism law and policy in France prior to the Twin Tower attacks, before proceeding to an overview of post-9/11 domestic and European Union legislation. The final section examines the types of contagion according to the categories set out in Chap. 1.

Background France’s long history with terrorism means it is often regarded internationally as a jurisdiction from which useful lessons can be drawn and it remains uniquely positioned among European countries in terms of its experience of international jihadist terrorism. Indeed, between 1986 and 1996, 23 bomb attacks were perpetrated in France that were attributed to radical Islamic movements such as the Groupe Islamique Armé (GIA) (Bigo and Camus, 2006). After abandoning emergency legislation against terrorism at the end of the Algerian war of independence (1954–1962), French governments of the last 30 years have favoured a judicial response to terrorism, creating a legal framework characterised by specialised, non-­ emergency laws and procedures that were also intended to help protect fundamental rights (Cahn, 2010; Garapon, 2005; Shapiro and Suzan,

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2003). Before the 9/11 attacks, the main legislative initiatives were adopted in response to terrorist attacks in 1986 and 1996 and together they form the backbone of the French counter-terrorist system (Bonelli, 2008). Act 86-1020 of 9 September 1986 led to a centralised and specialised system based on the key role of investigating magistrates and strong coordination between intelligence agencies and the judiciary (Gregory, 2003; Shapiro, 2010).1 In practice, this meant the creation of a system of special non-jury terrorism courts in Paris, where a small group of prosecutors and investigating magistrates dealt only with terrorism cases and, as a consequence, acquired an in-depth understanding of terrorist groups and considerable experience with terrorist investigations (Borricand, 1997; O’Brien, 2005). The 1986 Act was complemented by Act 96-6472 which took the important step of criminalising conspiracy to commit terrorism (association de malfaiteurs or AMT) at a very early stage in the iter criminalis, namely, membership of a group ‘established for the purpose of preparation, characterized by one or more material facts’. The offence thereby facilitated pre-emptive investigations and allowed police to make arrests before terrorist attacks took place on a ‘minimum of objective, independent evidence’ (McColgan and Attanasio, 1999; see also, Human Rights Watch, 2008). As such, it is key to the French counter-­ terrorist tradition where the ‘barrier between prevention and punishment is not airtight’ (De Villepin, 2006: 53). Thus, the French approach to counter-terrorism, based on a regular adaptation of the law, has avoided at least until November 2015, the use of extra-judicial measures in favour of a ‘model of accommodation’ (Garapon, 2005: 2049). Yet, it has enabled the introduction of extensive surveillance measures in the ordinary criminal procedural law and has been criticised in the past for the vagueness of its legislation and the lack of control exercised over investigating magistrates (Bigo, 2002; Cahn, 2010). This approach has also contributed to the creation of a parallel criminal procedure, or criminal procedure bis, which departs from the ‘ordinary’ law and its guarantees, comprising instead a series of special procedural rules and diluted procedural safeguards for specific terrorist crimes, and which has hovered ominously over the ordinary criminal justice system since 1986 (Lazerges, 2003; Le Monde, 2016).

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Counter-Terrorism After 9/11 Domestic Legislation Given the significant counter-terrorist arsenal already in place in France, the events of 9/11 marked less of a watershed, both conceptually and organisationally, than in other jurisdictions (Bigo and Camus, 2006). This view was echoed strongly by our interviewees who rather considered the Paris and St Denis attacks in 2015 ‘the French 9/11’.3 Having said that, as will become apparent below, the Twin Tower attacks were met with a not insignificant legislative response in France, including the creation of new terrorist offences, the extension of coercive and covert investigation tools and the reduction of the oversight powers of the judiciary (Cahn, 2010; Hellmuth, 2015). Important here also in light of our focus on contagion is the fact that much of this legislation extended to other areas of the criminal justice system unrelated to terrorism, creating conceptual confusion between crimes such as organised crime and terrorism, and suggesting that counter-terrorism was used as a pretext to reach parliamentary consensus over broad security laws (Hellmuth, 2015; Hodgson, 2013; Human Rights Watch, 2008; Oehmichen, 2009). While continuity and a deepening of the existing strategy of prevention can be said to best characterise the French response in the post-9/11 period, one very significant development in more recent years is the increasing resort to administrative measures in the fight against terrorism (Weil, 2018). This is best illustrated by legislation passed in 20144 that introduced administrative police measures aimed at preventing travel by suspected foreign terrorist fighters (FTFs) to places such as Syria and Iraq, together with the major expansion of administrative investigations envisaged in the July 2015 surveillance legislation.5 This trend was consolidated and extended with the legislation which followed the declaration of the state of emergency in November 20156 and the introduction of administrative measures such as house searches, house arrests and bans on demonstrations. As will be discussed, following legislation enacted in October 2017,7 some of these measures have now been incorporated into the permanent criminal law. What follows below is a brief synopsis of the

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main domestic counter-terrorism acts introduced between 2001 and 2017. Given the need to simplify what has become an increasingly complex legislative patchwork, only the most significant counter-terrorism statutes are discussed, and within these legislative texts, only the main provisions. This is followed by a brief discussion of reforms introduced on foot of European Union legislation, although as we shall see, the impact of this legislation has been much less in France than in jurisdictions with a less developed counter-terrorism apparatus.

Law on Daily Security 20018 The bill on daily security was first presented in March 2001 but was amended several times following the events of September 2001. The Act included several proactive measures relating to terrorism financing, including criminalising the financing of terrorism and giving counter-­ terrorism authorities access to information on bank accounts and tax records (Hellmuth, 2015; O’Brien, 2005; Oehmichen, 2009). The Act increased police powers concerning the use of new communication technologies by requiring telecommunications providers to store phone, e-mail and internet transactional data for one year and to make it available to law enforcement services. It also extended police powers to search houses and secure evidence without the concerned person’s consent; to search moving or parked cars without a warrant; and to search people, their luggage, freight and vehicles at airports and harbours. Finally, it conferred private security agents with inspection and search powers with respect to hand luggage, if the proprietor consents (Oehmichen, 2009; Schmitt, 2010).

Law on Internal Security 20039 As with the 2001 Act, the 2003 law on internal security was not exclusively concerned with terrorism but crimes such as prostitution and the illegal occupation of property. In relation to terrorism, the Act in many ways completes the work begun in the law on daily security (Bigo and

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Camus, 2006). The provisions relating to house searches and control measures at airports/harbours, due to expire in 2003, were extended to 2005. It also extended the provisions on car searches discussed above to investigations other than terrorism (e.g. theft/receiving stolen goods) and provided for these to be conducted for preventive purposes in the absence of a warrant or probable cause (Hellmuth, 2015; Oehmichen, 2009). Building on the 2001 provisions, the Judicial Police were given even greater access to conduct online searches of private and public databases of financial institutions, telecommunications providers, and government services if the data were considered ‘useful to establish the truth’. Similarly, the provisions on DNA data storage introduced in 2001 were extended to about a hundred criminal offences (Hellmuth, 2015; Oehmichen, 2009). Finally, the Act created a new crime, punishable with up to seven years’ imprisonment, for a person ‘unable to account for resources corresponding to his/her lifestyle when habitually in close contact with a person who engages in [terrorism-related activities]’ (Oehmichen, 2009).

 aw to Adapt Justice to the Evolutions of Criminality 200410 L (Law Perben II) Law no. 2004-204 was enacted two days before the Madrid bombings and similar to the 2001 and 2003 Acts aims to address a variety of crimes, particularly organised crime. The Act lists a number of ‘organised’ crimes—including terrorism—to which new special procedural tools will apply, including extended detention periods and new or extended surveillance powers (e.g. secret observation via infiltration, interception of communications, bugging operations in private places and cars, freezing of assets) (Oehmichen, 2009). In relation to powers of detention, a total time in police custody of 96 hours is permitted, with access to a lawyer delayed until the suspect has spent 72  hours in custody. The Act also introduced the offence of directing or organising of a terrorist group, which is punishable by 20 years’ imprisonment and a fine of €500,000. Finally, the Act formalises the procedure that applies to accomplices who have ‘turned State’s evidence’ or who have helped the authorities prosecute the other perpetrators. This procedure and the extension of special

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investigative tools to a range of ‘organised’ crimes were particularly criticised by human rights and lawyers’ associations calling it a ‘legislation of exception that risks becoming common rule’ (La Liberation, 2004).

 aw on the Fight Against Terrorism and Containing Various L Provisions Concerning Security and Border Controls 200611 After the London bombings in July 2005, the French introduced legislation with a view to learning lessons from the British counter-terrorism strategy (Bigo and Camus, 2006). The act expanded video surveillance, strengthened the authorities’ access to telecommunications data and travel databases, introduced a fast-track procedure for freezing terrorist-­ related assets and significantly increased sentences for terrorism offences (Bigo and Camus, 2006; Cahn, 2010; Hellmuth, 2015; Schmitt, 2010). Police custody was extended from four to a maximum of six days, and access to a lawyer was further delayed to 96 hours or four days in custody.12

Law on Security and Action Against Terrorism 201213 In 2012 France suffered its first domestic terrorist attack in 16 years when Islamist gunman Mohamed Merah killed seven people in a series of attacks across the country. The 2012 law enacted in response introduced a number of measures, including the application of the principle of extra-­ territoriality so that individuals visiting either military or ideological training camps, or committing terrorist acts abroad, could be arrested and prosecuted upon their return. In July 2016, a government press statement claimed that 300 proceedings had already being taken on foot of this provision (French Government, 2016). The 2012 act also criminalised recruitment to participate in a terrorist association (association des malfaiteurs) or to commit acts of terrorism. This is now punishable with ten years of imprisonment and a €15,000 fine regardless of whether the act in question is followed by any concrete effect. Finally, the act stepped up sanctions against those found guilty of justification of or incitement to terrorism on the internet.

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 aw Strengthening Provisions in the Fight Against Terrorism L 201414 Law 2014-1353, introduced by way of a fast-track procedure, primarily introduced measures targeting suspected Foreign Terrorist Fighters (FTFs) in line with UN Security Council Resolution 2178. Counter-­ terrorism authorities can now confiscate passports and ID cards for a period of six months, renewable for up to two years, if there is a ‘serious reason to believe’ that French nationals are leaving France to engage in terrorist activities or join terrorist groups. They can also block websites inciting or glorifying terrorism without requiring judicial approval or ask internet providers to remove the content within 24  hours (Hellmuth, 2015). Other major innovations contained within the act include the creation of the offence of ‘individual terrorist enterprise’ which acts as an addition to the existing AMT offence by allowing intervention at the preparatory stage, even when a person is acting on his own and no criminal association between two or more persons is established. Very significant also was the addition of the offence of ‘apology of terrorism’ to the Penal Code15 (Lacaze, 2015). The latter offence is punishable with five years in prison and a fine of up to €75,000 or seven years in prison and a fine of up to €100,000 when the communication was made online. As we shall see below, it has been relied on heavily by the prosecutorial authorities in the period following the Paris attacks.

Law on Intelligence 201516 Introduced in the wake of the Paris attacks of January 2015, the Intelligence Act is the most extensive piece of legislation ever adopted in France to regulate secret state surveillance (Tréguer, 2017). The act provided a regulatory framework for the gathering of intelligence and lists prevention of terrorism as one of the fundamental interests to be defended and promoted by intelligence services. The intelligence is collected without judicial authorisation and on the authorisation of the prime minister, after the opinion of the Commission nationale de contrôle des techniques de renseignement (CNIL), an independent authority composed of ­parliamentarians,

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members of the Conseil d’Etat, magistrates and an IT expert. The act provides for real-time analysis of electronic metadata relating to persons ‘identified as a threat’ for the prevention of terrorism.

 ecree Implementing State of Emergency Law—14 November D 201517 Following the Paris attacks on 13 November 2015, the French government issued a decree activating an emergency law created during France’s war in Algeria in 1955 and declaring a state of emergency for 12 days. Under this law, houses can be searched day and night without judicial supervision, the movement of persons and vehicles in specific places and at certain times can be restricted, individuals can be placed under house arrest, meeting places can be closed and public demonstrations may be banned. This decree was renewed six times between November 2015 and November 2017.

 aw Extending the State of Emergency and Strengthening L the Effectiveness of Its Provisions—20 November 201518 As well as extending the state of emergency by three months, the act modifies a number of the provisions of the 1955 Act with the aim of modernising them and rendering them more effective. Thus, house arrest was extended to anyone giving the authorities good reason to believe that their behaviour represents a threat to public order and security and a number of additional conditions were added relating to reporting at police stations, confiscation of passport/ID, prohibitions on contacting certain persons and electronic surveillance. In relation to house searches, police were given the power to seize personal data from electronic devices during house searches without judicial pre-authorisation. For both searches and house arrest, the penalties for breach were significantly increased. Finally, the act gave the authorities power to dissolve associations or groups deemed to be engaged in acts that are damaging to public order.

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 aw Strengthening the Fight Against Organised Crime, L Terrorism and Their Financing, and Improving the Efficiency and Guarantees of Criminal Proceedings—June 201619 This omnibus piece of legislation contains a variety of provisions aimed at strengthening on a permanent basis the tools available to the authorities to combat terrorism, outside of the state of emergency law (Commission Nationale Consultative des Droits de l’Homme (CNCDH), 2016). The Act extends police powers by allowing the police to detain a person suspected of involvement in terrorism for up to four hours (retenue administrative) to check identification and by giving police officers more leeway to use deadly force. It also gives the Minister of the Interior the power to assign residency for a month to persons returning from a theatre of war where terrorist groups are active, even when there is no indication of criminal behaviour (International Commission of Jurists, 2016). The government also announced a new database for convicted terrorists, and introduced a framework for the collection of wire-tap and connection data. Under the new law, police and prosecutors now have access to electronic surveillance technology that was previously only available to the intelligence agencies and prosecutors now have powers similar to those of investigative judges, including the ability to tap phones and use hidden cameras (International Commission of Jurists, 2016). Finally, the act created the offence of regularly consulting websites that promote terrorism, punishable by two years’ imprisonment.

 aw Extending the State of Emergency and Introducing L Measures to Strengthen the Fight Against Terrorism—July 201620 The legislative response to the Nice attacks in July 2016 extended the state of emergency for six months but also introduced a range of other provisions. These included: extending closure of meeting places to include ‘places of worship in which provocation of hatred or violence, or incitement to acts of terrorism occurs’; reducing the justification needed by authorities to ban demonstrations; allowing searches of luggage and

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v­ ehicles without a judicial warrant; and providing for more flexibility when carrying out house searches. Given the increasing focus on radicalisation within French prisons the act controversially authorises video surveillance in prison cells.

Law on Public Security—February 201721 In the midst of both protests by the police and controversy over police brutality,22 this law harmonised the rules on the use of force which apply to the police and to the National Gendarmerie, thereby providing the police with more latitude on the use of weapons. Other measures in this vein included: a doubling of the penalties for insulting an officer and for refusing to cooperate; the introduction of protections relating to the disclosure of the identity of police and gendarmerie officers in criminal or administrative proceedings and the authorisation of surveillance in certain places by armed private security guards. The act also reintroduced (after a decision by the Constitutional Court in February 2017)23 provisions criminalising the act of regularly consulting websites that promote terrorism first introduced in the June 2016 Act. On the other side of the balance sheet, the legislation curbed the provisions on the use of night searches and house arrest during the state of emergency, specifying that the authorities must take into account the person’s family and professional life.

 aw Reinforcing Domestic Security and the Fight L Against Terrorism—October 201724 This law brought the two-year state of emergency to an end and also served to integrate some of the emergency measures into the ordinary law. Among other things, it provides for: ‘search and seizure’ operations; the establishment of ‘security zones’ where people are subject to identity checks and searches; the closing of places of worship (for a maximum of 6  months); and the placing of individuals under surveillance measures and house arrest (Amnesty International, 2017a). These ‘Individual

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Measures of Administrative Control and Surveillance’, known by the French acronym MICAS, can impose house arrest not exceeding 12 hours a day as well as various conditions such as reporting requirements and limitations on movement (Weil, 2018). As with the state of emergency, these powers are exercised on very broad grounds by administrative, not judicial, authorities, and only searches will have to be authorised by a judge.

European Legislation Given the substantial counter-terrorism dispositif25 outlined above it is perhaps unsurprising that France, like the UK, was less impacted by European legislation in this area. In relation to the 2002 Framework Decision, for example, France was found by the Commission in its evaluation reports to be fully compliant while also noting that it was one of only two states which did not have to enact specific legislation in this regard (European Commission, 2004, 2007). In similar manner, France transposed the 2008 Framework Decision by in part relying on pre-­ existing legislation, such as the Press Law of 1881 and the highly flexible association de malfaiteurs terroriste (AMT) crime (European Commission, 2014a, 2014b).26 Some legislative refinements were introduced in 2004 (modifying the offence of incitement to explicitly criminalise the dissemination of messages via the internet) and 2012 (criminalising recruitment for terrorism) but overall Labayle (2012) is correct in his observations that French counter-terrorism law both complies with and largely ignores the Framework Decisions in this area. Similar observations can also be made in relation to the latest Directive 2017/541 on combatting terrorism.27 Given that the Directive was in large part motivated by the provisions of the UN Security Council Resolution 2178/14 on foreign terrorist fighters, already implemented by France through Law 2014-1353, its impact is likely to be minimal. In relation to the European Arrest Warrant, Law no. 2004-204 transposed the Council Framework Decision on the EAW into the French Criminal Procedural Code.28 The 2006 EC report (European Commission, 2006) did not identify significant issues in the ­implementation of the

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EAW in France. Indeed, France, like Poland, has been a heavy user of the EAW system, issuing 10,000 EAWs in the period 2005–2013, the third highest figure in the EU after Poland and Germany (European Parliament, 2014). EU legislation has also seen some impact in the controversial area of asset-freezing. While France could previously freeze the accounts of natural or legal persons by ministerial decree29 that procedure was strengthened by the adoption of the relevant European Union legislation in 2001 (UN Security Council, 2001). The Treasury Department of the Ministry of the Economy, Finance and Industry freezes the financial assets and economic resources of those engaged in acts of terrorism as an administrative measure. Additionally, the 2001 Act provides for the confiscation of assets of convicted terrorists as a complementary penalty within criminal proceedings which are then allocated to a guarantee fund for terrorist victims (Oehmichen, 2009). International obligations also provided an impetus for introduction in 2006 of a fast-­track procedure allowing the Ministry to freeze assets for a period of up to six months, subject to renewal, and this was extended to individuals engaged in incitement to terrorism since 2012 (Bigo and Camus, 2006; Hellmuth, 2015; Erikkson, 2009). The assets are frozen temporarily and then transferred to the jurisdiction of the criminal courts. Criminal prosecutions follow if reasons justifying them are present (Erikkson, 2009). The use of asset-freezing measures has recently been stepped up in France with President Macron noting in a speech in April 2018 a fourfold increase (to 88) in the number of measures imposed in the previous eight months (Macron, 2018). France has also been active in advocating mutual recognition of assetfreezing decisions within Europe with a view to increasing the speed of interventions (French Government, 2015; Macron, 2018).

Forms of Contagion in France Use of Terrorism as a ‘Picklock’ In the French context perhaps the best example of the potential of terrorism to leverage broader reforms is the Intelligence Act of 24 July 2015.30

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Dubbed the ‘French Patriot Act’ (Chardel et al., 2016), the act provides for mass surveillance techniques for the purpose inter alia of preventing terrorism and was the first legislative response after the Charlie Hebdo attack of 7 January 2015. Given the sweeping nature of the provisions contained within the Act, the International Federation of Human Rights (FIDH) has claimed that the attack ‘legitimised a law that would have certainly been difficult to get approved’ (FIDH, 2016: 27). Certainly, the context of the attacks provided a convenient cover for the introduction of legislation that served to legalise—and extend—highly intrusive surveillance that was already being carried out illegally by intelligence services. Launched in 2008, France’s large-scale internet surveillance programme lacked a valid legal basis, prompting calls for a new legal framework and expanded powers to collect metadata (Chardel et  al., 2016; Tréguer, 2017). The subsequent Snowden revelations in 2013, however, made the introduction of legislation regulating surveillance ‘politically risky and unpredictable’ (Tréguer, 2017: 17) and it was only with the Paris attacks of January 2015 that the opportunity arose for the passage of the controversial legislation. The main provisions of the Act include the possibility for intelligence agencies to access data retained by internet and telephone service providers (including metadata for algorithmic analysis), and to conduct, for terrorism prevention purposes, real-time analysis of electronic metadata relating to a person ‘previously identified as a threat’.31 The Act controversially replaces the judicial authorisation previously needed for tapping of phones and emails with administrative oversight by the Prime Minister after seeking the (non-binding) views of a new body, the CNIL (FIDH, 2016; Hellmuth, 2015). This lack of independent oversight has been heavily criticised by Amnesty International (2015), among others,32 ‘as a major blow to human rights’ with many questioning the compliance of the legislation with the law of the European Union and the European Convention on Human Rights (Cahn, 2016). From the instant perspective, however, the main issue concerns the scope of the act which was presented as a counter-terrorism tool but actually goes far beyond this to incorporate seven other situations where intelligence powers can be invoked (FIDH, 2016). Besides the prevention of terrorism, surveillance measures can be authorised for a wide range of purposes including: the

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protection of economic or overarching foreign policy interests, the prevention of ‘collective violence constituting a serious threat to public order’ and ‘organised criminality’. All of these grounds have been criticised by the CNCDH (2015) for their lack of legal precision, amid fears that this would in practice lead to (among other things) systematic and widespread surveillance of social movements. Even leaving aside claims that the Act provides ‘carte blanche for mass data interception’ (Amnesty International, 2017b: 31), it is difficult to disagree with FIDH (2016: 28) that the expansion of the grounds for authorising intelligence collection ‘amounts to the generalisation of an exceptional—and highly objectionable—system of derogations that legalise large-scale surveillance’. An earlier example of this form of contagion dates back to the initial legislative response to the 9/11 attacks, which in France came largely in the form of amendments to a pre-existing bill on ‘daily security’.33 This bill was heavily amended after 11 September but not resubmitted to either the Conseil Constitutionnel (Constitutional Council) or Conseil d’Etat (Council of State) despite criticisms by human rights associations (Oehmichen, 2009). As observed by the CNCDH (2001) this lack of scrutiny was particularly unfortunate given that the amendments to the bill—which primarily aimed to prevent terrorism by targeting its financing—also contained provisions of more general application modifying sensitive provisions of the Code of Criminal Procedure. For instance, Art. 24 of the act extended the possibility to carry out house searches at night during preliminary investigations (excluding places of residence) in respect of not only terrorism but also offences relating to weapons and drug trafficking. Notably, this provision had been proposed initially in the law of 22 July 1996 (see introductory section above), before being censured by the Conseil Constitutionnel as a provision which excessively interfered with liberty rights.34 Of similarly general application is Art. 23 of the 2001 act granting (on the authorisation of the public prosecutor) powers to search moving or parked cars in the case of an investigation on terrorism, and also on offences related to arms and explosives as well as drugs, including mere possession (Oehmichen, 2009). The scope of these provisions has been criticised by the CNCDH (2001: 2), which argued that the use of such exceptional provisions in respect of offences such as the possession of narcotic drugs does not appear to be justified (‘irrespec-

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tive of their intrinsic seriousness, drug offenses are not necessarily related to the financing of terrorist activities’). In 2003, Law no. 2003-239 of 18 March 2003 on Internal Security further extended these powers to the offences of theft and receiving stolen goods, despite the objections of the CNCDH (2002) that this amounted to a ‘generalisation’ of police powers (Oehmichen, 2009). The net effect of this amendment was that vehicle searches were authorised for purely preventive purposes (Art. 78-2-4), without the need for probable cause or warrants (only judicial requisition orders), again contravening earlier jurisprudence of the Conseil Constitutionnel (Dagron, 2004). The potential for discriminatory application of these type of stop and search provisions of this nature is clear35 and it is unsurprising that human rights organisations and the Union Syndicale des Magistrats (French Magistrates’ Union) both predicted an exponential increase in the number of checks directed at those who looked like foreigners (Cettina, 2003). While little information exists on the manner in which these laws have been implemented, it is worth noting that the above concerns find some foundation in reports in The Economist (2002) that the new powers on vehicle searches had been used ‘mainly to police drug offences’. Further, given powers enshrined in the legislation permitting the use of incriminating evidence found during these searches in subsequent, unrelated criminal proceedings, it is fair to speculate that the impact of the provisions has gone far beyond the terrorist realm (CNCDH, 2001).

‘Blank Cheque’ Legislation The broad drafting of terrorism and terrorism-related offences has a long history in France, with one of the key weapons in the French ­counter-­terrorist arsenal being the ill-defined criminal conspiracy or association de malfaiteurs offence (De Villepin, 2006). As noted, this offence took the controversial step of autonomously criminalising participation in a criminal group in relation to terrorism but has been severely criticised for its affront to principles of legal certainty as well as the very low thresholds of evidence for establishing participation in such a network (Human Rights Watch, 2008; Cahn, 2010; Hodgson, 2013). Despite the

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very wide net cast by this offence, its ‘success’ in terms of securing convictions for terrorism offences has consolidated and extended a trend towards pre-­emption in subsequent French legislation (Bonelli, 2008; Human Rights Watch, 2008).36 Among the long list of ancillary criminal offences enacted since 2001 are those criminalising: an inability to justify one’s lifestyle while being in regular contact with persons engaged in acts of terrorism; recruitment to participate in an association de malfaiteurs or acts of terrorism; provoking acts of terrorism and the promotion of terrorist acts; engaging in an individual terrorist enterprise; dissemination of data which justifies or provokes acts of terrorism; and the regular consultation of websites which endorse acts of terrorism (Cahn, 2016). This highly ‘inventive policy of incrimination’ (Mayaud, 2013) clearly criminalises offences of opinion or acts preparatory to a preparatory act, thereby pushing out the boundaries of the criminal law and the criminal justice ‘net’ (Cahn, 2016). Indeed, this tendency towards over-legislation was recognised by the French Constitutional Council when it on two occasions in 2017 struck down provisions relating to the consultation of online materials that promote terrorism.37 The Court pointed out that a plethora of provisions were already in place to address online radicalisation, including surveillance, administrative measures and orders to remove terrorist content, and that the legislation did not therefore meet the threshold of necessity for restrictions to fundamental rights (Boutin, 2018). In terms of the law’s application, it would appear that it is the offence of ‘apology of terrorism’, introduced by act 2014-1353 of 13 November 2014,38 which has been relied most heavily by prosecutors. In the first year of its application, the 2014 Act had been used to prosecute 700 individuals which ‘in many cases did not constitute incitement to violence and thus f[e]ll within the scope of legitimate exercise of freedom of expression’ (Amnesty International, 2016: 33). In the fortnight following the attacks in Paris in January 2015 alone, there were 298 judicial procedures for ‘apology for terrorism’, including 96 cases involving minors, according to statistics provided by the Ministry for Justice (Amnesty International, 2017b: 40). Numbers rose again in the period following the November 2015 attacks with up to 570 cases brought under this provision by 10 December, one-third of whom were minors (Amnesty

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International, 2017b: 40). Indeed, it is striking that recent figures show that the offences of apology and provocation to terrorism now represent the overwhelming majority of cases linked to terrorism (85% in 2015 and 2016) (Interstats, 2017). Perhaps the most egregious example of broadly drafted legislation which has been applied outside of the counter-terrorism field is the legislation establishing the state of emergency itself. On the night of the attacks of 13 November 2015  in Paris, the then President, François Hollande, declared a state of emergency, originally provided for in a 1955 law adopted to deal with the situation in Algeria,39 thereby granting powers to law enforcement bodies to conduct warrantless house searches, order house arrests and ban demonstrations. The scope of these powers as they applied to house arrests was further extended by a later Act,40 which allowed special measures to be taken against any person ‘in respect of whom there are serious reasons for believing that his/her conduct constitutes a threat to public security and order’.41 As a consequence, it is no longer necessary to ascertain the existence of tangible activity and ‘an individual who happens to know a person suspected of terrorist activities can themselves be placed under house arrest’ (FIDH, 2016: 20). Despite the obvious connection with terrorism as the trigger for the current state of emergency powers (as included in derogation notifications to the UN and Council of Europe), the courts have endorsed an interpretation of the provisions of the 1955 Act that permits their use in other contexts. Following legal challenges taken to orders for house arrest placed on 26 environmental activists during the 2015 United Nations Conference on Climate Change in Paris, the Conseil d’Etat, France’s highest administrative body, upheld the government’s views that this did not constitute a disproportionate interference with the freedom to come and go.42 Other abusive applications of the emergency powers included bans issued against labour law protestors and measures taken within the framework of the state of emergency to control illegal immigration (Amnesty International, 2015, 2016, 2017b; CNCDH, 2016).43 Of further concern are reports detailing the application of these powers to the ordinary criminal sphere and particularly offences related to drugs. In line with previous legislation extending the use of counter-­ terrorist powers to drugs offences, FIDH (2016: 19) reports that most of

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the searches authorised by the Prefecture (local authority) under the state of emergency were carried out by members of the drugs squad, in an effort to ‘boost the number of searches conducted and opportunistically issue search orders for persons linked to ordinary crimes by claiming the existence of a direct link between drug trafficking and terrorism’. These claims, by members of the Union Syndicale des Magistrats (USM), are supported by the statistics from the Ministry of the Interior which reveal that out of the 576 legal proceedings opened on foot of the over 4000 searches carried out under the state of emergency only six have been initiated by the specialist national anti-terrorist unit (CNCDH, 2016). The majority of these measures have instead been used to institute proceedings in the ordinary courts relating to possession of weapons, drugs trafficking or apology of terrorism.

The ‘New Normal’ In the French context, what Cahn describes as the ‘hegemonic tendency’ (Cahn, 2010: 487) of counter-terrorist legislation is particularly evident and will be examined here in two main ways: first, the extension of the procedural rules created in the counter-terrorist context to organised crime and, secondly, the introduction into the ordinary criminal law of measures inspired by the state of emergency regime. As observed in the introductory section above, the existence since 1986 of a parallel criminal procedure or criminal procedure bis, comprising a series of special procedural rules and diluted procedural safeguards for terrorist crimes, has greatly increased the risk of normalisation (Lazerges, 2003). As in other jurisdictions, the extension of special measures is most likely to occur in relation to other serious crimes, p ­ articularly 44 organised crime, and it is therefore unsurprising to observe in the French criminal justice system an almost ‘reciprocal’ relation between the two areas, ‘with exceptions in one sphere, seamlessly applying to the other’ (Hodgson, 2013: 17). Following the introduction of wider police powers to search vehicles and residences in the 2001 and 2003 Acts45— which, as already noted, applied to both terrorist, weapons and drugs offences—the ultimate fusion between organised crime and terrorism

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occurred with Act 2004-204 of 9 March 2004 (Cahn, 2010; Hodgson, 2013).46 The act, whose stated aim was to adapt justice to the evolution of criminality, introduced the offence of organised crime not by defining it as such, but rather through the simple listing of 19 qualifying offences, terrorism being the 11th in the list (Oehmichen, 2009). Criminal acts ranging from murder to theft can thus be categorised as organised crime when they are committed in a criminal group (bande organisée), ‘established for the preparation of one or more offences, characterised by one or more material acts’.47 Most significantly, the Act applied the procedural tools that were originally confined to terrorist offences to this wider range of crimes, among them an array of covert surveillance measures (e.g. secret observation, interception of communications); powers to conduct night searches in places of residence; an extended period of detention (96 hours); and delayed access to a lawyer. While the ostensible aims of the Act were to adapt the justice system to new forms of crime in general, there is little doubt that the origins of the legislation lie in the ‘special zone’ constructed by counter-terrorist laws enacted since 1986. Indeed, it is telling that, in justifying the new 96 hour detention period to the Assemblée Nationale, the government stressed that the Act merely extends existing custody periods to the most serious forms of crime (Warsmann, 2003). This becomes particularly problematic when the sheer scope of application of the law is considered. Referred to by the CNCDH (2016: 18) as ‘vast, fluctuating and inconsistent’, the highly fluid nature of the definition of organised crime in France means that, as Hodgson (2013: 18) notes, ‘[a] group of boys who come together in order to steal another boy’s bus pass would fall within [it]’. After the paths of terrorism and organised crime formally crossed in 2004, the conceptual fusion of the two concepts continued, further increasing the likelihood of contagion. Thus, in the wake of the November 2015 attacks on Paris, the government announced ‘the need to adapt legislative provisions on organised crime and, more specifically, on terrorism in order to strengthen in a long-term way the tools and resources available to the administrative and judicial authorities, beyond the temporary legal framework that is in place under the state of emergency’ (FIDH, 2016: 29, emphasis added). The ensuing legislation, Act 2016-731 of 3 June 2016,48 can be viewed as perpetuating the construction of a perma-

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nent exceptional criminal procedure that began with the 2004 Act (Cahn, 2016). The Act further expanded the inventory of organised crimes by adding several offences relating to weapons and explosives, with certain of the new provisions applying not only to organised crimes but also to other serious offences listed in Art. 706-73-1 of the Criminal Procedural Code.49 Significantly, the Act extended to police and the prosecutors investigating organised crimes and other serious offences (including terrorism) the controversial new surveillance powers granted to intelligence services in the July 2015 Act. Thus, prosecuting authorities can now gain access, remotely and without the suspect’s knowledge, to electronic communication data protected by username/password once authorised by either the juge d’ instruction or the juge des libertés et de la detention. Indeed, in emergency situations, ‘arising from an imminent risk of loss of evidence or serious harm to persons or property’ electronic surveillance technology can now be deployed without prior judicial approval (although an ex-post judicial authorisation after a maximum of 24  hours is still required) (International Commission of Jurists, 2016).50 Thus, powers initially justified as a proportionate and necessary response to a terrorist emergency (the Charlie Hebdo attacks) have now come to be ‘judicialised’, to borrow Cahn’s (2016) term, with, as he further observes, important knock-on effects for the distinction between intelligence services/the police and intelligence/evidence. The June 2016 Act is also interesting from another perspective, namely, the institutionalisation of state of emergency measures and their transposition into the ordinary, permanent criminal justice system. Several such measures can be identified, namely, assigned residency/house arrest and powers to search residences (CNCDH, 2016). In relation to orders for house arrest, these are aimed at individuals travelling to or from a ‘terrorist theatre of operation’ like Syria or Iraq and have been justified by the French government in terms of the need to exercise control over individuals who have thus far been able to avoid criminal prosecution, namely, Muslim women (FIDH, 2016). The 2016 provisions permit house arrest for up to one month upon return to France with a variety of restrictions such as reporting requirements. As with the assigned residency orders authorised under the state of emergency regime, they are imposed by the administrative authorities (subject only to judicial review

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a posteriori), on a much lower standard of proof than required under the existing Criminal Code (‘serious reasons to believe’), with stiff penalties of up to three years in the event of breach (Amnesty International, 2016; CNCDH, 2016). In placing these powers on a permanent footing—and recalling the role of courts in normalising once exceptional powers—the path has no doubt been cleared by the earlier decision of the Conseil Constitutionnel on the state of emergency measures to the effect that house arrest does not comprise a deprivation of liberty provided it does not exceed 12 hours day.51 The provision on house searches, regulated by the 1955 Act, was amended by the November act 2015-1501 extending the state of emergency52 to allow night searches without prior judicial authorisation in the case of threat to public security and order, and in any case in which ‘there are serious grounds for believing that the place is frequented by a person whose behaviour constitutes a threat to public security and order’ (Art. 4 of act 2015-1501). The June 201653 Act permanently allowed night searches during preliminary investigations of terrorist offences in the event of an ‘emergency’ (‘to prevent the risk of harm to life or physical integrity’) whereas the existing Criminal Code allowed night searches only in the case of the main (flagrant) investigation or in the immediate risk of concealment or destruction of evidence (Art.  706-90 of the Criminal Procedural Code). Again, what is notable about the new provisions is their interchangeability with the state of emergency measures; indeed Lacaze (2017) directly links the dropping of the night search powers from the May 2016 extension of the state of emergency to the enactment of this more permanent provision. While these provisions represented clear moves towards the ‘banalisation’ of the state of emergency provisions, the ultimate blurring of the exceptional and ordinary in France occurred with the counter-terrorism law of 30 October 2017 (SILT). As observed above, this law permanently transposes into French law powers exercised by the authorities during the two-year state of emergency, such as the delimitation of security perimeters, the closing of places of worship and the imposition of house arrest and surveillance measures. In so doing, moreover, the law makes a number of profound changes to the counter-terrorism framework, further prioritising administrative measures over criminal/judicial measures in

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the fight against terrorism as well as a system of a posteriori rather than a priori review (CNCDH, 2017). Noting these recent reforms, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (2018: np), described them as constituting ‘a de facto state of qualified emergency in ordinary French law’ and goes on to express concern that they will be applied in other contexts, such as public demonstrations and environmental protests. Further, their embedding in the permanent law is all the more puzzling given the apparent ineffectiveness of these measures during the state of emergency. This much was acknowledged by the Committee of Inquiry charged with parliamentary oversight of the state of emergency who reported in 2016 that the emergency measures were not viewed by experts as particularly important in the fight against terrorism (National Assembly, 2016 cited in CNCDH, 2017).

Conclusions Fifteen years ago, Didier Bigo (2002) expressed his concern that terrorism could be used as a ‘catch-all category’ in France justifying repressive policies in areas beyond terrorism and thus giving rise to a ‘routinisation’ of exceptional procedures. As Cahn (2010) has written, his words have proved highly prescient in terms of French criminal justice reform post-­ 9/11. Beginning with the initial response to the 9/11 attacks, enhanced powers to search vehicles and residences, previously declared unconstitutional, were introduced by the government. As with subsequent reforms, provisions have been included permitting the use of evidence discovered relating to other offences in subsequent proceedings, something which is not without significance given wider impact of these powers and the ­possibility of knowing abusive use of derogatory procedures (CNCDH, 2001). Taken together with other examples such as the Intelligence Act 2015, we may wonder, with Cahn (2016), FIDH (2016) and other commentators (Lazerges and Henrion-Stoffel, 2016), about the utility of terrorism as a means of justifying broader reforms. As has also been observed, exceptional powers, accrued as part of the fight against terror, are consistently applied to ‘related’ crimes such as drugs and weapons offences,

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despite the absence of any obvious link with minor offences such as possession of drugs. This trend, again evident since 2001, was consolidated with the 2004 Act applying counter-terrorist powers to organised crime more broadly, including minor forms of delinquency. More recently, it has been continued, not only with the steady accretion of new offences under the organised crime banner but with the ‘opportunistic’ application of state of emergency search powers to drugs and weapons offences to now form the majority of prosecutions resulting from the state of emergency measures (CNCDH, 2016; FIDH, 2016). Both normatively and practically, therefore, these new prerogatives are highly significant. As a conversation with any practising criminal lawyer will reveal, drugs offences form the ‘bread and butter’ of a criminal law practice in most jurisdictions (Kutateladze, 2009). Combined with the heavy use of the offence of ‘apology for terrorism’ these initiatives provide a broad array of legal tools for the discipline and control of young people from Muslim communities, particularly Maghrebis in low-income communities (Fassin, 2016). While apology for terrorism is prosecuted in the ordinary courts and therefore subject to ordinary investigation methods, it is nevertheless processed very quickly, requiring a person’s ‘immediate appearance’ before a judge and also triggering the use of a number of special techniques for surveillance, infiltration and interception (Amnesty International, 2017b; Lacaze, 2015). Amnesty International (2017b) provide several examples of prosecutions brought for this offence against young Muslims France, including those based on comments that young people have posted on Facebook and minor acts of graffiti. On a normative level, offences related to terrorism have arguably spearheaded a trend towards pre-emptive criminalisation in France with the autonomous criminalisation, particularly since 2001, of highly equivocal acts ‘preparatory to the preparation’ for the offence (CNCDH, 2014). Linked with this is the significant increase in preventive powers, such as those of house arrest, being given to administrative authorities at the expense of the traditional law enforcement bodies (CNCDH, 2016). While the concern accompanying these trends, as in other jurisdictions, is the emergence of a parallel criminal procedure without the requisite procedural safeguards, in France this blurring of roles is particularly significant given the strict separation between the administrative police,

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(charged with upholding public order) and the judicial police (charged with the investigation of crimes) and the constitutional protection given to same. Even more concerning is the emerging scholarly debate— prompted by both the steady expansion of the list of organised crimes attracting special measures and the exemption of the offence of apology of terrorism from the protections of the criminal law code for the press— of the possible ‘eviction’ of the ordinary criminal law in favour of a droit d’exception (Lazerges and Henrion-Stoffel, 2016; Mayaud, 2013). Gloomy though such prognoses may be, they serve to underline the serious implications of counter-terrorist legislation and policy for the direction of travel of the criminal law in general. These trends have, if anything, been consolidated with the recent legislation ending the state of emergency but incorporating or ‘repackaging’ several state of emergency provisions into ordinary administrative and criminal law (Le Monde, 2017).

Notes 1. Loi no. 86-1020 du 9 septembre 1986 relative à la lutte contre le terrorisme et aux atteintes à la sûreté de l’Etat. 2. Loi no. 96-647 du 22 juillet 1996 tendant à renforcer la répression du terrorisme et des atteintes aux personnes dépositaires de l’autorité publique ou chargées d’une mission de service public et comportant des dispositions relatives à la police judiciaire. 3. Interviews held on 3, 4 and 6 April 2017. 4. Loi no. 2014-1353 du 13 novembre 2014 renforcant les dispositions relatives a la lutte contre le terrorisme. 5. Loi no. 2015-912 du 24 juillet 2015 relative au renseignement 2015. 6. Décret no. 2015-1475 et 2015-1476 du 14 novembre 2015 portant application de la loi n° 55-385 du 3 avril 1955. 7. Loi no. 2017-258 du 28 février 2017 relative à la sécurité publique. 8. Loi no. 2001-1062 du 15 novembre 2001 relative à la sécurité quotidienne. 9. Loi no. 2003-239 du 18 mars 2003 pour la sécurité intérieure. 10. Loi no. 2004-204 du 9 mars 2004 portant adaptation de la justice aux évolutions de la criminalité.

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11. Loi no. 2006-64 du 23 janvier 2006 relative à la lutte contre le terrorisme et portant dispositions diverses relatives à la sécurité et aux contrôles frontaliers. 12. The law was changed in 2011 (law 2011-392) so that all detainees are guaranteed access to counsel at the outset of detention but in terrorism-­ related cases, suspects may be held and interrogated in police custody for up to three days before having access to a lawyer. If police custody is prolonged beyond three days, the terrorism suspect has access to a lawyer every 24 hours. Each client-lawyer interview is limited to 30 minutes. 13. Loi no. 2012-1432 du 21 décembre 2012 relative à la sécurité et à la lutte contre le terrorisme. 14. Loi no. 2014-1353 du 13 novembre 2014 renforçant les dispositions relatives à la lutte contre le terrorisme, Journal officiel de la République française, no. 263 du 14 novembre 2014. 15. The offence had previously been criminalised by the Law of 29 July 1881, special legislation governing freedom of expression and its abuses. 16. Loi no. 2015-912 du 24 juillet 2015 relative au renseignement 2015. 17. Décret no. 2015-1475 et 2015-1476 du 14 novembre 2015 portant application de la loi n° 55-385 du 3 avril 1955. 18. Loi no. 2015-1501 du 20 novembre 2015 prorogeant l’application de la loi n° 55-385 du 3 avril 1955 relative à l’état d’urgence et renforçant l’efficacité de ses dispositions. 19. Loi no. 2016-731 du 3 juin 2016 renforçant la lutte contre le crime organisé, le terrorisme et leur financement, et améliorant l’efficacité et les garanties de la procédure pénale. 20. Loi no. 2016-987 du 21 juillet 2016 prorogeant l’application de la loi n° 55-385 du 3 avril 1955 relative à l’état d’urgence et portant mesures de renforcement de la lutte antiterroriste. 21. Loi no. 2017-258 du 28 février 2017 relative à la sécurité publique. 22. See Human Rights Watch (2017) ‘Urgent action needed on ethnic profiling in police checks in France’. 28 February. Available at: https://www. hrw.org/news/2017/02/28/urgent-action-needed-ethnic-profilingpolice-checks-france. 23. Décision no. 2016-611 QPC du 10 février 2017. 24. Loi no. 2017-1510 du 30 octobre 2017 renforçant la sécurité intérieure et la lutte contre le terrorisme—SILT. 25. Foucault defined this as ‘a thoroughly heterogenous ensemble consisting of discourses, institutions, architectural forms, regulatory decisions,

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laws, administrative measures, scientific statements, philosophical, moral and philanthropic propositions—in short, the said as much as the unsaid’. 26. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:5201 4SC0270. 27. Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA. 28. The use of the EAW is regulated by Articles 695-11 to 695-51 of the Criminal Procedure Code. 29. L151-2 Monetary and Financial Code. 30. Loi no. 2015-912 du 24 juillet 2015 relative au renseignement, Journal officiel de la République française no. 0171 du 26 juillet 2015. 31. Art. 5 of act 2015-912, adding Art. L851-2-I to the Code of Internal Security. 32. See Marc Trévidic, former magistrate specialised in the fight against terrorism at the Tribunal de Grand Instance in Paris and president of the French Association of Examining Magistrates, commenting that ‘frankly, the Prime Minister’s room for manoeuvre is immense and the nation has no way of knowing whether something illegal will be done’ (Calvi, 2015). 33. Loi no. 2001-1062 du 15 novembre 2001 relative à la sécurité quotidienne, Journal officiel de la République française no. 266 du 16 novembre 2001. 34. Conseil Constitutionnel, decision no. 96-377 QPC of 16 July 1996. 35. See, for example, the 2009 study of the Open Society Justice Initiative which found that Arabs and blacks in France were eight times more likely than whites to be stopped by police (New York Times, 3 October 2013). 36. An article in Le Monde in September 2005 reported that over 80% of the 358 people imprisoned for terrorism offences in 2005 had been charged with association de malfaiteurs (Le Monde, 2005). 37. Constitutional Council Decision no. 2016-611 QPC of 10 February 2017; Constitutional Council Decision no. 2017-682 QPC of 15 December 2017. 38. Loi no. 2014-1353 du 13 novembre 2014 renforçant les dispositions relatives à la lutte contre le terrorisme, Journal officiel de la République française no. 0263 du 14 novembre 2014.

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39. Loi no. 55-385 du 3 avril 1955 instituant un état d’urgence et en déclarant l’application en Algérie, Journal officiel de la République française no. 0085 du 7 avril 1955. 40. Loi no. 2015-1501 du 20 novembre 2015 prorogeant l’application de la loi no. 55-385 du 3 avril 1955 relative à l’état d’urgence et renforçant l’efficacité de ses dispositions, Journal officiel de la République française no. 0270 du 21 novembre 2015. 41. Act 55-385 limited the application of house arrest to anyone ‘whose activity is dangerous for the public security’. 42. Conseil d’Etat, decision no. 395009 of 11 December 2015. 43. Act 2016-987 of 21 July 2016, which followed the Nice attack and extended the state of emergency for the fourth time, further expanded the restrictions on freedom of assembly by reducing the justification needed by the authorities to order a ban, shifting from a system of notification to one of authorisation (FIDH, 2016). 44. See further Kilcommins and Vaughan (2004: 74) on the ‘metaphoric pathways’ which are often forged between terrorism and organised crime. 45. Loi no. 2003-239 du 18 mars 2003 pour la sécurité intérieure, Journal officiel de la République française no. 66 du 19 mars 2003. 46. Loi no. 2004-204 du 9 mars 2004 portant adaptation de la justice aux évolutions de la criminalité, Journal officiel de la République française no. 59 du 10 mars 2004. 47. Art. 132-71 of the Criminal Procedural Code. 48. Loi no. 2016-731 du 3 juin 2016 renforçant la lutte contre le crime organisé, le terrorisme et leur financement, et améliorant l’efficacité et les garanties de la procédure pénale, Journal officiel de la République française no. 0129 du 4 juin 2016. 49. Art. 706-73-1 of the Code of Criminal Procedure was introduced by Act no. 2015-993 of 17 August 2015 (adaptation de la procédure pénale au droit de l’Union européenne). It concerns: the offence of fraud in an organised gang; offences relating to illegal labour and perpetrated by organised gangs; money laundering offences; criminal conspiracy (délits d’association de malfaiteurs); inability to account for resources corresponding to one’s lifestyle. 50. Loi no. 2016-731 du 3 juin 2016 renforçant la lutte contre le crime organisé, le terrorisme et leur financement, et améliorant l’efficacité et les garanties de la procédure pénale, Journal officiel de la République française no. 0129 du 4 juin 2016.

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51. Conseil Constitutionnel, decision no. 2015-527 QPC of 22 December 2015. 52. Loi no. 2015-1501 du 20 novembre 2015 prorogeant l’application de la loi no. 55-385 du 3 avril 1955 relative à l’état d’urgence et renforçant l’efficacité de ses dispositions, Journal officiel de la République française no. 0270 du 21 novembre 2015. 53. Loi no. 2016-731 du 3 juin 2016 renforçant la lutte contre le crime organisé, le terrorisme et leur financement, et améliorant l’efficacité et les garanties de la procédure pénale, Journal officiel de la République française no. 0129 du 4 juin 2016.

References Amnesty International (2015) L’état d’urgence a visé les défenseurs de l’environnement. Paris: Amnesty International. Amnesty International (2016) Upturned Lives: The Disproportionate Impact of France’s State of Emergency. London: Amnesty International. Amnesty International (2017a) France’s permanent state of emergency. 26th September. Available at: https://www.amnesty.org/en/latest/news/2017/09/apermanent-state-of-emergency-in-france/ [Accessed various dates]. Amnesty International (2017b) Dangerously Disproportionate: The ever-­ expanding national security state in Europe. London: Amnesty International. Bigo, D. (2002) Reassuring and Protecting: Internal Security Implications of French Participation in the Coalition Against Terrorism. In: Hershberg E and Moore KW (eds), Critical Views of September 11: Analysis from around the World. New York: The New Press. Bigo, D. and Camus, C. (2006) Overview of the French anti-terrorism strategy. Working Document, First Inventory of Policy on Counterterrorism: Germany, France, Italy, Spain, the United Kingdom and the United States. Available at: https://english.wodc.nl/binaries/ca06-3a_full_text_tcm29-68940.pdf. Bonelli, L. (2008) Les caractéristiques de l’antiterrorisme français: ‘Parer les coups plutôt que panser les plaies’. Le Monde, 11th September. Borricand, J. (1997) France’s responses to terrorism. In: Higgins R and Flory M (eds), Terrorism and international law, London: Routledge. Boutin, B. (2018) Excesses of Counter-Terrorism and Constitutional Review in France: The Example of the Criminalisation of the Consultation of Websites. VerfBlog. 10 May. Available at: https://verfassungsblog.de/where-visiting-a-

104 

C. Hamilton

website-is-now-a-crime-excesses-of-counter-terrorism-and-constitutionalreview-infrance/. Cahn, O. (2010) The Fight Against Terrorism and Human Rights: The French Perspective. In: Wade M and Maljevic A (eds), A War on Terror? New York: Springer. Cahn, O. (2016) “Cet ennemi intérieur, nous devons le combattre”. Le dispositif antiterroriste français, une manifestation du droit pénal de l’ennemi. Archives de Politique Criminelle 38: 91–121. Calvi, Y. (2015) Loi renseignement: Une arme redoutable entre de mauvaises mains, s’inquiète Marc Trévidic. RTL. 7 April. Available at: http://www.rtl.fr/ actu/societe-faits-divers/la-loi-sur-le-renseignement-entre-demauvaises-mains-est-une-arme-redoutable-estime-le-juge-marc-trevidic-7777296541. Cettina, N. (2003) The French Approach: Vigour and Vigilance. In: van Leeuwen M (ed.), Confronting Terrorism: European Experiences, Threat Perceptions and Policies, The Hague: Kluwer Law International. Chardel, P.-A., Harvey, R. and Volat, H. (2016) The French Intelligence Act: Resonances with the USA PATRIOT Act. Technology Science, 15th March. CNCDH (2001) Avis sur les dispositions législatives proposées par le Gouvernement en vue de renforcer la lutte contre le terrorisme. Paris: Commission Nationale Consultative des Droits de l’Homme. CNCDH (2002) Avis portant sur le projet de loi pour la sécurité intérieure. Paris: Commission Nationale Consultative des Droits de l’Homme. CNCDH (2014) Avis sur le projet de loi renforçant les dispositions relatives à la lutte contre le terrorisme. Paris: Commission Nationale Consultative des Droits de l’Homme. CNCDH (2015) Avis sur le projet de loi relatif au renseignement dans sa version enregistrée le 1er avril 2015 à la Présidence de l’Assemblée nationale. Paris: Commission Nationale Consultative des Droits de l’Homme. CNCDH (2016) Statement of Opinion on the State of Emergency. Paris: Commission Nationale Consultative des Droits de l’Homme. CNCDH (2017) Avis sur le projet de loi renforcant la sécurité intérieure et la lutte contre le terrorisme. Paris: Commission Nationale Consultative des Droits de l’Homme. Dagron, S. (2004) Country Report on France. In: Walter C, Vöneky S, Röben V, et al. (eds), Terrorism as a Challenge for National and International Law: Security versus Liberty? Berlin: Springer.

4  Counter-Terrorism in France 

105

De Villepin, D. (2006) Prevailing against Terrorism. White Paper on Domestic Security against Terrorism. Paris: La documentation Française. Erikkson, M. (2009) In Search of a Due Process: Listing and Delisting Practices of the European Union. Department of Peace and Conflict Research, Uppsala University. Available at: http://www.academia.edu/8210241/In_Search_ of_a_Due_Process_Listing_and_Delisting_Practices_of_the_European_ Union_2009 [Accessed various dates]. European Commission (2004) Report from the Commission based on Article 11 of the Council Framework Decision on combatting terrorism of 13 June 2002. COM (2004) 409. Brussels: European Commission. European Commission (2006) Report from the Commission based on Article 34 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (COM (2006) 8 final). Brussels: European Commission. European Commission (2007) Report from the Commission based on Article 11 of the Council Framework Decision on combatting terrorism of 13 June 2002. COM (2007) 681. Brussels: European Commission. European Commission (2014a) Report from the Commission to the European Parliament and the Council on the implementation of Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/JHA on combating terrorism. COM/2014/0554. Brussels: European Commission. European Commission (2014b) Commission staff working document accompanying the document Report from the Commission to the European Parliament and the Council on the implementation of Council Framework Decision 2008/919/JHA amending Framework Decision 2002/475/JHA on combating terrorism (SWD(2014) 270). European Commission, Brussels. European Parliament (2014) European Arrest Warrant: At a Glance. Infographic 23/06/14. European Parliament, Brussels. Available at: http://www.europarl. europa.eu/EPRS/140803REV1-European-Arrest-Warrant-FINAL.pdf [Accessed various dates]. Fassin, D. (2016) Short Cuts. London Review of Books 38(5): 23. FIDH (2016) Counter-terrorism measures and human rights: When the exception becomes the norm. Paris: Fédération Internationale des Ligues des Droits de l’Homme. Foley, F. (2013) Justice for suspected terrorists? In: F.  Foley (ed.) Countering Terrorism in Britain and France. Cambridge: Cambridge University Press.

106 

C. Hamilton

French Government (2015) France’s contribution: New efforts to combat terrorist financing at European level. Available at: https://www.economie.gouv. fr/files/files/PDF/20151127_France’s_contribution_-_New_efforts_to_ combat_terrorist_financing_at_European_level.pdf [Accessed various dates]. French Government (2016) No Government has done more to counter terrorism to date. [press release] 16th July. Available at: https://www.gouvernement.fr/en/no-government-has-done-more-to-counter-terrorism-to-date [Accessed various dates]. Garapon, A. (2005) The Oak and the Reed: Counter-terrorism mechanisms in France and the United States of America. Cardozo Law Review, 27(5): 2041–2077. Gregory, S. (2003) France and the war on terrorism. Terrorism and Political Violence 15(1): 124–147. Hellmuth, D. (2015) Countering Jihadi Terrorists and Radicals the French Way. Studies in Conflict & Terrorism, 38(12): 979–997. Hodgson, J. S. (2013) Legitimacy and State Responses to Terrorism: The UK and France. Legal Studies Research Paper No. 2013-30, Warwick School of Law. Human Rights Watch (2008) Preempting Justice: Counterterrorism Laws and Procedures in France. New York: Human Rights Watch. International Commission of Jurists (2016) Bulletin: counter-terrorism and human rights. European Human Rights Law Review E.H.R.L.R. 347. Interstats (2017) Insécurité et délinquance en 2016: premier bilan statistique. Paris: Ministère de Intérieur. Available at: https://www.interieur.gouv.fr/ Interstats/Actualites/Insecurite-et-delinquance-en-2016-premier-bilanstatistique. Kilcommins, S. and Vaughan, B. (2004) A Perpetual State of Emergency: Subverting the Rule of Law in Ireland. Cambrian Law Review 35: 55–80. Kutateladze, B. (2009) Is America Really So Punitive? Exploring a Continuum of US State Criminal Justice Policies. New York: LFB Scholarly Publishing. Labayle, H. (2012) Les infraction terroristes en droit penal francais: Quel impact des decisions-cadres de 2002 et 2008? In: F. Galli and A. Weyembergh (eds.) EU Counter-terrorism Offences: What impact on national legislation and case law? Bruxelles: Editions de l’Université de Bruxelles. Lacaze, M. (2015) Latest developments in the repression and prevention of terrorism under French criminal law. Montesquieu Law Review (3). Lacaze, M. (2017) State of emergency and criminal law. Montesquieu Law Review (5).

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Lazerges, C. (2003) La dérive de la procédure pénale. Revue de science criminelle: 644. Lazerges, C. and Henrion-Stoffel, H. (2016) Chronique de politique criminelle: Le déclin du droit pénal: l’emergence d’une politique criminelle de l’ennemi. Revue de science criminelle et de droit pénal comparé (3): 649–661. Libération (online edition) (2004) Dernière plaidoirie contre une dérive liberticide. 14th January. Available at: https://www.liberation.fr/societe/2004/ 01/14/derniere-plaidoirie-contre-une-derive-liberticide_465175. Le Monde (2005) Les prisons françaises comptent 358 détenus pour activisme. 8th September. Le Monde (2016) Christine Lazerges: “Le nouveau droit pénal se construit sur des sables mouvants”. 3rd March. Le Monde (2017) Le Sénat adopte le projet de loi antiterroriste en première lecture. 19th July. Macron, E. (2018) Speech by M. Emmanuel Macron, President of the Republic at International conference on combating the financing of Daesh and al-­ Qaeda. 26th April. Available at: https://uk.ambafrance.org/President-seeksglobal-coalition-against-terrorism-funding [Accessed various dates]. Mayaud, Y. (2013) La politique d’incrimination du terrorisme à la lumière de la législation récente. AJ Pénal 9. McColgan, M. and Attanasio, A. (1999) France: Paving the Way for Arbitrary Justice. Paris: FIDH. O’Brien, K.  A. (2005) France. In: Hippel, K. von (ed.), Europe Confronts Terrorism, Basingstoke, Hampshire: Palgrave Macmillan. Oehmichen, A. (2009) Terrorism and anti-terror legislation – the terrorised legislator? A comparison of counter-terrorism legislation and its implications on human rights in the legal systems of the United Kingdom, Spain, Germany, and France. (PhD thesis) Leiden: Leiden University. Schmitt, G.  J. (2010) France: In a League of Its Own. In: Schmitt GJ (ed.), Safety, Liberty, and Islamist Terrorism: American and European Approaches to Domestic Counterterrorism, Washington, DC: The AEI Press. Shapiro, J. (2010) French Responses to Terrorism: From the Algerian War to the Present. In: Crenshaw M (ed.), The consequences of counterterrorism, New York, NY: Russell Sage Foundation. Shapiro, J. and Suzan, B. (2003) The French Experience of Counter-terrorism. Survival 45(1): 67–98. The Economist (2002) For whom the Liberty Bell tolls. The Economist, London, 29th August.

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Tréguer, F. (2017) Intelligence Reform and the Snowden Paradox: The Case of France. Media and Communication, 5(1): 17–28. United Nations Security Council (2001) Reports by Member States pursuant to Security Council Resolution 1373 (2001): France. S/2001/1274. Available at: https://www.un.org/sc/ctc/resources/assessments/ [Accessed various dates]. United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (2018) Preliminary findings of the visit: UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism concludes visit to France. Available at: https://www.ohchr.org/EN/ NewsEvents/Pages/DisplayNews.aspx?NewsID=23128&LangID=E [Accessed various dates]. Warsmann, J.-L. (2003) Rapport fait au nom de la Commission des Lois Constitutionnelles, de la Législations et de l’Administration Générale de la République sur le Project de Loi (no. 784), portant adaptation de la justice aux évolutions de la criminalité. Paris: Assemblée Nationale. Weil, S. (2018) Terror in Courts. French Counter-Terrorism: Administrative and Penal Avenues. Report for the official visit of the UN Special Rapporteur on Counter-Terrorism and Human Rights May 2018. Available at: https:// www.sciencespo.fr/psia/sites/sciencespo.fr.psia/files/Terror%20in%20 Courts.pdf.

5 A Precautionary Consensus?

Abstract  This chapter aims to examine the cross-cutting trends, and indeed differences, in counter-terrorism law and policy across the three jurisdictions. In all three we can point to evidence of ‘all-risks’ policing, mass surveillance, broadly drafted legislation, a growing range of precursor offences and increasing resort to administrative over judicial authorities. Admittedly, this has occurred to varying degrees in the three jurisdictions and according to pre-established legislative patterns, practices and political cultures. There have also been marked differences in the application of these laws, emphasising the need for comparative research to examine the law in practice as well as the law in the books. Keywords  Contagion • Counter-terrorism • Criminal justice • Convergence • Divergence

Introduction The previous three chapters have endeavoured to provide the reader with a sense of the main developments in counter-terrorism law and policy in the three case study countries since 9/11 and its impact on the ordinary © The Author(s) 2019 C. Hamilton, Contagion, Counter-Terrorism and Criminology, Crime Prevention and Security Management, https://doi.org/10.1007/978-3-030-12322-2_5

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criminal justice system and beyond. It remains in this chapter to tie these strands together with a view to examining cross-cutting trends, and indeed differences, across the jurisdictions. Particularly given the flurry of legislative activity that has followed the recent terror attacks, what common patterns can be detected amongst the ‘terrorised legislators’ (Oehmichen, 2009) of Europe? What are their main influences and, most pertinently, given the focus of our current inquiry, what are the implications for contagion? In order to effectively address these questions we have adopted here a framework of analysis on ‘the precautionary approach to terrorism risk’ recently put forward by Lennon and Walker (2016: 465) in the Routledge Handbook on Law and Terrorism. Following this analysis, we consider the factors behind this apparent ‘precautionary consensus’ in the three jurisdictions.

Precautionary Logic It is by now nearly trite to argue that counter-terrorist law and policy has pushed the criminal law in an increasingly preventive or pre-emptive direction, putting it in tension with fundamental criminal law principles around the proper limits of the criminal law and its coercive powers (Zedner, 2007a, 2007b; Murphy, 2012; Lennon, 2015). It is arguably this shift towards prevention in the post-9/11 environment that underpins the contagion effects outlined in the previous three chapters for, as Zedner (2009: 117) has written, ‘[it is] the pressure on governments to think and act pre-emptively against the catastrophic risks of terrorism [that] has led to many developments that blur the line between crime control and security’. Elaborating on the ‘precautionary logic’ that they see as forming a key thread throughout much post-9/11 legislation, Lennon and Walker (2016) argue that this development has led to a host of other anticipatory endeavours in and outside the criminal justice system and has engendered five major consequences: (1) increased recourse to ‘all-risks’ policing powers; (2) the counter-terrorism net is being cast increasingly widely, covering the ‘friends of my enemy’ and, through mass surveillance, everyone; (3) increasing deviation from ‘ordinary’ criminal law norms, draw-

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ing closer to models that would normally apply in wartime; (4) the spread of precursor offences; and (5) the vagueness of the offences and broad discretion granted to the executive and/or security officials. The significance of these trends from the current perspective is the risk they run of contagion. ‘All-risks’ policing, deployed where there is insufficient intelligence to determine who presents a risk, holds that the entire population is to be treated as risk-engendering, with obvious implications for the liberties of members of the public entering risky locations (Walker, 2008). Similar inroads into the liberties of all have accompanied the accelerated trend towards mass surveillance, subjecting ordinary citizens to electronic surveillance, mass data collection and retention in the name of increased state security (Lyon, 2001). Of course, these risks are experienced differentially by people of different class, race, religion and political opinion. People positioned as ‘suspect’ by the authorities, such as labour demonstrators, political activists and the Muslim community in general, may be at particular risk of vague definitions of terrorism and terroristrelated offences (Pantazis and Pemberton, 2009). Similarly, an expanding range of inchoate criminal offences targeting acts increasingly distant from any terrorist act (e.g. consultation of certain websites) perpetuates not only the fallacy of ‘guilt by association’ but also risks criminalising those engaged in academic or journalistic research or simply passive curiosity (Zedner, 2009). And of course such departures from the traditional model of criminal law run important risks that they will impact wellestablished criminal justice values or be used as a standard for future law drafting (Zedner, 2009; Sugman Stubbs and Galli, 2012). What follows below is an analysis of post-9/11 developments of counter-­terrorist law and policy in the three case studies through this precautionary lens.

‘All-Risks’ Policing Powers The best illustration of this first trend is probably the use of suspicionless stop and search powers under section 44 of the UK Terrorism Act 2000, a practice that has in fact ceased since the January 2010 judgment of the European Court of Human Rights in Gillan and Quinton v United Kingdom.1 While the amended provision has only been invoked once (in

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2017), at its height s. 44 was used more than 250,000 times in a single year, with no resulting prosecutions for terrorism offences (Anderson, 2012; Hodgson, 2013). Strikingly similar trends are in evidence in France too, although in this jurisdiction the ‘all-risks’ approach to searches pioneered by the police during the state of emergency, far from being abandoned, has now been embedded into permanent legislation. Provisions contained in legislation enacted in October 2017 ‘to reinforce internal security and the fight against terrorism’2 allow the Ministry of Interior to designate public spaces as security zones for up to a month, limiting who could enter and leave, with wide powers granted to police and private security guards to stop and search within the perimeter. These powers form part of a more general trend towards expansion in police powers in this area in the three jurisdictions. In France, legislation in 2006 provided for a garde à vue (police detention) of six days (from the usual four) in circumstances arising from matters of international cooperation or where there is a threat of an imminent terrorist attack. In Britain the detention period was extended twice, to 14 days in 2003 and to 28 days in 2006, and has since reverted to 14. Interestingly, in 2016 Poland drew heavily on the UK legislative framework3 to justify a 14-day detention period for terrorist cases, one of the longest periods of detention in police custody in continental Europe. Finally, it should be noted that laws adopted in 2016 in France4 and Poland5 have given police officers more leeway to use lethal force against someone they believe is committing a deadly attack.

Mass Surveillance Developing in parallel to the above trend, and much in evidence in all three jurisdictions, is the growing momentum towards mass surveillance and data collection. Indeed, as discussed in the previous chapters, the need to combat terrorism very often serves to smooth the path of contentious legislation with a much wider reach, such as in the area of surveillance and media freedom. In the UK, for example, the Investigatory Powers Act 2016 (known as the ‘Snooper’s Charter’) was justified by the government as essential to keep the UK ‘safe from terrorists’, but has since been found incompatible with EU law (Home Office, 2016).

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Similar tactics can be observed in France where the Charlie Hebdo attacks of January 2015 provided a convenient cover for the introduction of legislation that served to authorise highly intrusive surveillance on a variety of grounds, giving rise to fears that this would lead to surveillance of social movements (Tréguer, 2017). In Poland also a major counter-­ terrorism Act introduced in June 2016 was justified by reference to the Paris and Brussels attacks and used to consolidate sweeping powers in the hands of the Internal Security Agency (ABW), with no independent oversight mechanism. The Act, described by Amnesty International (2017: 34) as containing ‘some of the most draconian surveillance powers in the EU’, allows the ABW to maintain a list of persons suspected of being involved in terrorism-related activities for the purposes of accessing data held by government agencies and provides for very wide surveillance powers in relation to non-Polish citizens. There was a striking level of consensus amongst the experts we spoke to in Poland that these provisions may be used for political purposes.6

Deviation from ‘Ordinary’ Criminal Law Norms Much could be written under this heading, particularly given the increased resort to executive and administrative powers, and concomitant weakening of a priori judicial oversight, in the post-9/11 struggle against terrorism. The Polish provisions on intelligence-gathering discussed above provide a good example, given the virtually unimpeded access that security agents will have to citizens’ personal data such as bank statements and tax reports (Amnesty International, 2016a).7 Considered together with reforms permitting the intelligence services to suspend websites and to access telecommunications and digital data without prior judicial approval, this makes for a very significant enhancement of administrative powers.8 Laws increasing the powers of administrative agencies have also proliferated in France and the UK. While until recently it was likely the UK that was best known within Europe for the use of such procedures (Galli, 2015), administrative measures have also grown to assume a central role in the French counter-terrorism apparatus, a process described by Weil (2018: 9) as the ‘radicalization of administrative law’. Beginning

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in 20149 administrative measures to ban travel abroad by French citizens could be issued by the Ministry of Interior for a maximum of six months (renewable for a maximum of two years). Like control orders and TPIMs in the UK, these provided for criminal penalties when the order is breached (three years imprisonment and a €45,000 fine). The use of such measures rapidly accelerated with the declaration in November 2015 of a state of emergency as it empowered local Préfets (the Interior Minister’s representative at local level) to authorise house searches, house arrests, bans on demonstrations and the closing of places of worship. As noted, Loi n° 2017-1510, which officially ended the state of emergency, has integrated some of these emergency measures into the permanent law including: the delimitation of security perimeters; the closing of places of worship and powers of surveillance and house arrest. As with the state of emergency, these powers do not require prior judicial authorisation, although decisions about house arrest are now made by the Ministry of Interior rather than the Préfet (as during the state of emergency). In terms of their application, these measures appear to have been resorted to much more frequently than in Britain, with up to 500 travel bans reportedly imposed under the 2014 Act10 and 754 assignations à residence (house arrests) over the two-year period of the state of emergency (Ministère de Intérieur, 2017). While the number of those under house arrest has halved since the end of the state of emergency in November 2017,11 this still compares unfavourably with the more restrained use in Britain of TPIM notices, police passport withdrawal and removal powers.12

Spread of Precursor Offences As with the use of administrative measures, this fourth trend, manifested through the criminalisation of behaviour increasingly remote from the actual preparation of the harm, tests the traditional boundaries of criminal liability. In this regard, the three comparator jurisdictions present quite differently. While some convergence is evident as a result of the impact of the EU Framework Decisions on terrorism (see further below), important differences open up between France and the UK on the one hand and Poland on the other. Given France’s pre-existing commitment

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to preventive justice (Human Rights Watch, 2008), it is perhaps unsurprising to witness the highly ‘inventive policy of incrimination’ (Mayaud, 2013) pursued by the French legislator since 2001. Among the long list of behaviours that have been criminalised, such as an inability to justify one’s lifestyle while being in regular contact with persons engaged in acts of terrorism and the regular consultation of websites which endorse acts of terrorism,13 it is the offence of ‘apology of terrorism’ created in 2014 that has proved to be of most practical significance (Cahn, 2016). Indeed, it is striking that recent figures show that apology and provocation to terrorism now represent 85% of the cases specifically linked to terrorism in 2015 and 2016 (Interstats, 2017). While the traditional lynchpin of the French counter-terrorist arsenal—the broadly drafted offence of conspiracy to commit terrorism or association de malfaiteurs en relation avec une entreprise terroriste (AMT)—continues to feature in the prosecution statistics, the dramatic upswing in the use of the apology offence (1990 offences out of 2342 in 2015), often arising from drunken interactions with the police or provocative statements in school courtyards or on social media, merits close scrutiny as a growing mechanism of social control (Human Rights Watch, 2018a). While we have witnessed in the UK a similar drive towards the criminalisation of a range of satellite behaviours loosely linked with terrorism,14 to date at least the approach of the prosecuting authorities has been much less aggressive. Thus, while newly created offences such as preparation for terrorism and dissemination of terrorist publications are used heavily and have been described as offences of ‘great utility’ for the prosecutor in terrorism cases (Hill, 2018: 68), we have not seen the same upsurge in the use of precursor offences on the other side of the British Channel. Prosecutions for terrorism act offences rose steadily from 31 in 2014/15 to 71 in 2016/17 and 67 in 2017/18, a trend that is perhaps unsurprising in a year (2017) that witnessed the Manchester Arena and other terrorist attacks (Home Office, 2018). In contrast, beyond compliance with EU Framework Decisions, our final comparator, Poland, has been less active in relation to this aspect of the precautionary dynamic, although this should be considered against the very wide-ranging definition of terrorist crimes and ‘incidents of a terrorist nature’, which we now turn to discuss.

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 roadly Drawn Terrorist Offences and Wide B Discretionary Powers Terrorism-related offences have not only proliferated in the post-9/11 period but are often drafted in a deliberately ambiguous manner. In the UK, human rights groups and the Independent Reviewer of Terrorism Legislation have taken issue with the broad definition of terrorism under the 2000 Act, as well as the much looser notion of ‘terrorism-related activity’ underpinning the 2015 Counter-terrorism and Security Act 2015 (Anderson, 2014, 2016; Amnesty International, 2017). As one of the broadest definitions in the world, it grants unusually wide discretion to all those concerned with the application of the law, such as ministers, police and prosecutors. While this may have been applied responsibly to date (Roach, 2011), as observed by the Supreme Court in R v Gul15 the very existence of this discretion leaves citizens, such as students or protestors, ‘unclear as to whether or not their actions or anticipated actions are liable to be treated by the prosecution authorities as innocent or criminal’. In France, the autonomous criminalisation of participation in a criminal group (criminal conspiracy) in relation to terrorism has served to significantly broaden the definition of terrorism in practice, allowing for arrest in many cases on evidence of only a minor connection to terrorism and drawing criticism from academics and human rights groups (Cahn, 2010; Hodgson, 2013; Human Rights Watch, 2008). In addition, during the state of emergency in France there have been abusive applications of the emergency powers granted to counter-terrorism, most notably against environmental activists and labour law protestors, abuses which do not appear to have occurred in Britain (Amnesty International, 2015, 2016b, 2017; CNCDH, 2016; Roach, 2011). Poland too has an exceptionally loose statutory definition of terrorism, with recent anti-­ terrorist legislation introducing the concept of ‘terrorist incidents’ to the already broad definition of terrorism enacted in 2004 (Daranowski, 2015). Defined as situations ‘suspected of having occurred as a result of a terrorism-related crime or threats of such a crime occurring’, examples of such terrorist incidents provided by the Ministry of Interior include behaviours such as a Polish citizen ‘coming into contact’ with a person

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‘feared’ to be involved in terrorism-related activities or the loss of ID documents by a Polish citizen abroad (Amnesty International, 2017).16 The UN Human Rights Committee (2016: 2) has recommended a review of this legislation in order to ‘include a precise definition of “terrorist incidents” that does not give the authorities excessive discretion or obstruct the exercise of rights’.

 he Precautionary Consensus and the Role T of Policy Transfer The above account suggests, as Lennon and Walker (2016) have observed in their own comparative survey of counter-terrorism legislation, a significant degree of consensus among the three jurisdictions in terms of their adherence to a preventive logic. If this is so then we may well return to the questions posed at the beginning of the book about the extent to which these effects have been driven by transnational institutions such as the European Union and the UN Security Council or the Member States themselves. To what degree can we attribute such cohesion to UN/EU enforcement mechanisms or is it rather the result of policy borrowing at the more voluntary end of the spectrum (Newburn and Sparks, 2004)? What is the impact of a Member State’s history and experience of terrorism in this process? In relation to the three case studies, the answers to these questions do not readily suggest themselves. On the one hand, the role played by the UN and the European Union cannot be underestimated. The impact of the 2002 and 2008 Framework Decisions on countries such as Poland which did not have legislation autonomously criminalising terrorist acts prior to 9/11 has been described by Roach (2015: 29) as ‘an explosive growth’ or ‘viral propagation of anti-terrorism laws in Europe’. Indeed, in Poland this resulted in a statutory definition of terrorism17 that is much broader than the EU definition and consequently vague and difficult to interpret (Daranowski, 2015; Libront, 2014; Zieba, 2015). The Framework Decision on the European Arrest Warrant has been similarly impactful in two of our case study jurisdictions given that as we have seen

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in Chaps. 2 and 3, Poland continues to be one of the heaviest users of the EAW system in Europe with over half (745) of the warrants resulting in surrenders coming from the UK18 (on the impact of the EAW more generally, see Hamilton, 2018a). It is important to remember also that the EU has played a key role in the implementation of UN Security Council Resolutions. The most recent Directive from the EU,19 for example, has incorporated the measures contained in UN Security Council Resolution 2178 in relation to foreign terrorist fighters (FTFs), requiring all states to ensure that travel to plan, prepare, provide or receive terrorist training, or participate in or perpetuate terrorist acts be treated as serious criminal offences. In some states the impact of the Security Council Resolution has been more or less immediate, with the French introducing a travel ban for suspected FTFs in its 2014 Act20 and the British Counter-­Terrorism and Security Act 2015 introducing various restrictions on travel for both incoming and outgoing FTFs. Internationally, Human Rights Watch (2018b) has observed that the need to comply with Resolution 2178 has resulted in at least 47 countries passing foreign terrorist fighter laws since 2013—the largest wave of counter-terrorism measures since the immediate aftermath of the Twin Tower attacks. On the other hand, it is important not to exaggerate the extent to which this apparent cohesion has been forged by supranational, rather than national, influences. As is well known amongst political scientists, countries remain heavily influenced by ‘path dependencies’ in terms of their policymaking choices and the area of counter-terrorism is no ­exception in this regard (Crenshaw, 2010). Thus, historical patterns mean that, despite external influences, it is highly likely jurisdictions will continue with trends that were already underway prior to 9/11 or, at a minimum, engage in ‘selective convergence’ (Donohue, 2007; den Boer and Wiegand, 2015). Arguments such as this resonate with much of the academic commentary on the impact of EU counter-terrorism policy on domestic legislation in both France and the UK. In relation to the UK, as several authors have observed, existing laws went considerably further than the 2002 and 2008 Framework Decisions and as a consequence had no discernible effect on UK law (Spencer, 2012; den Boer and Wiegand,

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2015). A similar story can be told of French legislation, which was already much advanced down the path of pre-emptive criminalisation prior to the adoption of the Framework Decisions, and which therefore largely ignored them (Labayle, 2012). Indeed, as Bigo and Camus (2006) observe, the French initially approached the 2002 Council framework decision as an opportunity to extend the French strategie d’anticipation to all EU Member States. Even in Poland, where the supranational organisations have probably wielded the most influence in the counter-terrorism sphere, it is worth noting that its heavy use of the EAW has been strongly influenced by a variety of national idiosyncrasies, namely, the hierarchical prosecutorial system (an inheritance from the Communist era) and its rigid prosecutorial culture (Krajewski, 2012).21 Where, moreover, policy transfer does occur, it is not confined to the transnational sphere. The tendency towards ‘policy laundering’ observed by Lennon and Walker (2016: 464) may also proceed on a country-to-­ country basis and indeed such borrowing is particularly likely from jurisdictions such as the UK and France with long experience of domestic terrorism. Alongside the definition of terrorism advanced in the 2002 EU Framework Decision, Roach (2015) identifies the broad definition of terrorism found in the UK’s Terrorism Act 2000 as being highly influential internationally, particularly among former British colonies and members of the British Commonwealth. In the context of the current research, there is certainly evidence that Britain and France sought to emulate each other’s policies in the post-9/11 period and that Poland looked to both these jurisdictions in the enactment of recent legislation in this area. For example, in early 2004 the then Home Secretary, David Blunkett, sought to introduce a modified version of the French ‘association’ law to the UK but failed to secure the consent of cabinet colleagues for his proposal (Observer, 2004, cited in Foley, 2013). The Home Office subsequently settled for the ‘preparation of terrorist acts’ offence enacted as part of the Terrorism Act 2006, which allowed for the criminalisation of behaviour falling short of criminal conspiracy to commit a terrorist act. As the most-­charged provision under the terrorism acts since 9/11, this offence has played an important role in moving British counterterrorism in a more preventive direction (Anderson, 2016). While borrowings from French criminal procedures have been more limited,22

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another concession to the inquisitorial model can perhaps be seen in the introduction of post-­charge questioning in the Counter-Terrorism Act 2008 (Spencer, 2012). The French for their part have invoked British legislation in aid of reforms in 2006 involving inter alia a major expansion of video surveillance (Bigo and Camus, 2006). Recalling the use of CCTV to identify the perpetrators of the 2005 London bombings, Nicolas Sarkozy, then Minister for the Interior, described it as a ‘return on experiences’ that had worked well in Britain and from which France could learn.23 Some years later Cahn (2016: 111) has also observed similarities between the hybrid civil-criminal structure of the UK anti-social behaviour order and the measures that can be imposed on returning FTFs under the French Act of June 2016, noting that, ‘it cannot be ruled out that the British legislator inspired the French legislator’. More recent evidence of collaboration includes a French-British Action Plan, announced in 2017, to impede online radicalisation and recruitment (French Embassy, 2017). Linked with this perhaps is the new offence of ‘viewing terrorist material online on three or more different occasions’ proposed in the British Counter-­ terrorism and Borderland Security Bill 2018. A very similar offence of consulting terrorist material online was introduced by French legislators in June 2016, declared unconstitutional by the Conseil Constitutionnel in February 2017, immediately reintroduced with minimal modifications, and again invalidated by the Constitutional Council in December 2017 (Boutin, 2018). As discussed in previous chapters, both provisions arguably amount to a form of ‘thought crime’, contravening basic democratic principles concerning freedom of thought (Liberty, 2018). Casting our gaze eastwards, we may contemplate the influence such legislative excesses may have on jurisdictions with less experience of domestic terrorism and where democratic principles may be on a less firm footing. While Poland’s recent counter-terrorism law is most likely inspired by a sweeping measure passed in Hungary in 2011 that gave Viktor Orban’s government far-reaching powers of covert surveillance with minimal judicial oversight (Rydzak, 2016), it is nonetheless noteworthy that recent reforms in France, and particularly the UK, were cited in the justification for the legislation.24

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Conclusions Given the connection between the shift towards pre-emption and the risk of contagion, the apparent cohesiveness of the three case studies described above provides much food for thought. In all three we can point to evidence of ‘all-risks’ policing, mass surveillance, broadly drafted legislation, a growing range of precursor offences and increasing resort to administrative over judicial authorities. Part of the explanation for this precautionary ‘consensus’ lies in supranational measures which, as Roach (2015) rightly observes, are impossible to ignore in this area of law, all the more so since the UN Security Council arrogated to itself the power to legislate in 2001 (Hamilton, 2018b). In the case of Poland, for example, we can clearly see the influence of the European Union in effecting what policy convergence theorists call ‘sigma convergence’ or, put simply, assisting the laggard countries to catch up with the states more experienced in terrorism (Meyer, 2009). The other part of the puzzle, however, lies at the more voluntary end of the policy transfer spectrum, namely, the desire to learn lessons from jurisdictions more experienced in the ‘wicked problem’ of terrorism. Admittedly, this has occurred to varying degrees in the three jurisdictions and according to pre-established legislative patterns, practices and political cultures. There have also been marked differences in the application of these laws, emphasising the need for comparative research to examine the law in practice as well as the law in the books. For example, despite the increasing approximation of its counter-terrorism laws with those in Britain, France has been much more draconian in their application, both in terms of the prosecution of behaviours preliminary to terrorism and in relation to the use of administrative measures. While France has clearly experienced the worst of the recent wave of attacks in Europe,25 it is also important to contemplate this in the context of the factors identified by Foley (2013), such as a striking ‘security consensus’ amongst political parties.

Notes 1. (Application no. 4158/05), European Court of Human Rights. 2. Loi no. 2017-1510 renforçant la sécurité intérieure et la lutte contre le terrorisme—SILT) was passed on 30 October 2017.

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3. The Polish government erroneously claimed that the limit in the UK was 28  days. Since 2011, it is in fact 14  days. See Uzasadnienie projektu ustawy. Available at: https://www.rpo.gov.pl/sites/default/files/Projekt %20ustawy%20antyterrorystycznej%20-%20wersja%20z%205%20 maja%202016_0.pdf. 4. Loi no. 2016-731 du 3 juin 2016 renforçant la lutte contre le crime organisé, le terrorisme et leur financement, et améliorant l’efficacité et les garanties de la procédure pénale. 5. 7 Law on Counterterrorism of 10 June 2016 (Ustawa z dnia 10 czerwca 2016 r. o działaniach antyterrorystycznych). 6. Interviews held on 16, 17, 18 and 19 January 2017. 7. These reforms should be considered alongside legislative changes to criminal procedure in March 2016 permitting evidence found illegally to be used in court. These changes open up the broad possibility that evidence gathered illegally by intelligence services will be used in criminal proceedings (Kusak, 2016; Amnesty International, 2017). 8. Ustawa z dnia 15 stycznia 2016 r. o zmianie ustawy o Policji oraz niektórych innych ustaw. Available at: http://prawo.sejm.gov.pl/isap.nsf/ DocDetails.xsp?id=WDU20160000147. 9. French Act 2014-1353, Art. 1, interdiction de sortie du territoire. 10. Up to December 2017. See Weil (2018: 11). 11. As of November 2017, there were approximately 20 people under house arrest (see The Local, (2017) ‘France to halve number of suspects under house arrest as part of new anti-terror law’,  2 November Available at: https://www.thelocal.fr/20171102/frances-new-terror-laws-to-see20-suspects-held-under-house-arrest.) 12. As of 31 August 2017, there were six TPIM notices in force, five in respect of British citizens (Hill, 2018). According to the most recent available statistics, passport removal powers under section 1 of the 2015 CounterTerrorism and Security Act were invoked 24 times between February and December 2015 (HM Government, 2017). While data on the powers to withdraw passports is limited, a recent House of Commons report (2017) noted that it had been used 14 times between April 2013 and March 2014. 13. On two occasions in 2017 the French Constitutional Council struck down these provisions relating to the consultation of online materials that promote terrorism. See further Chap. 4. 14. In an October 2017 speech, the government-appointed reviewer of terrorism legislation, Max Hill QC, pointed out that ‘our legislators … have provided for just about every descriptive action in relation to terrorism’ (Liberty, 2018: 4).

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15. [2013] UKSC 64. 16. Rozporządzenie Ministra Spraw Wewnętrznych i Administracji w sprawie katalogu incydentów o charakterze terrorystycznym. Dziennik Ustaw, No. 0, Location 1092, 2016. 17. Ustawa o zmianie ustawy—Kodeks karny oraz niektórych innych ustaw. Dziennik Ustaw, No. 93, Location 889, 2004. 18. The number of EAWs issued in Poland and resulting in effective surrender in 2016 was 1541. See ‘ENA  – europejski nakaz aresztowania w latach 2004–16’, https://isws.ms.gov.pl/pl/baza-statystyczna/opracowania-wieloletnie/. 19. Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA. 20. Loi No. 2014-1353 of 13 November 2014. 21. The influence of these factors was also confirmed by an interview with a senior Polish academic working in this area, 16 January 2017. 22. Foley (2013: 237) notes that ‘The Home Office and its ministers showed considerable interest in creating “security-cleared judges”, or even special non-jury terrorism courts, but it could not get agreement within the Cabinet to these proposals, never mind convince sceptical actors outside of government. That was because these ideas – which the Home Office drew partly from its study of the French inquisitorial system – contravened longstanding rules and conventions of ordinary English justice.’ 23. Sarkozy, Nicolas, speech in Pièce à Conviction, France 3, 26 September 2005. 24. See Uzasadnienie projektu ustawy. Available at: https://www.rpo.gov.pl/ sites/default/files/Projekt%20ustawy%20antyterrorystycznej%20-%20 wersja%20z%205%20maja%202016_0.pdf. 25. Seventeen people died in January 2015, 130 in November 2015 and 86 on Bastille Day 2016.

References Amnesty International (2015) L’état d’urgence a visé les défenseurs de l’environnement. Paris: Amnesty International. Amnesty International (2016a) Poland: Counter-terrorism bill would give security service unchecked power (Amnesty International Public Statement No. EUR 37/4263/2016). London: Amnesty International.

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Amnesty International (2016b) Upturned lives: The disproportionate impact of France’s state of emergency. London: Amnesty International. Amnesty International (2017) Dangerously disproportionate: The ever-expanding national security state in Europe. London: Amnesty International. Anderson, D. (2012) The Terrorism Acts in 2011. Report of the Independent Reviewer on the Operation of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006. London: HMSO. Anderson, D. (2014) The Terrorism Acts in 2013. Report of the Independent Reviewer on the Operation of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006. London: HMSO. Anderson, D. (2016) The Terrorism Acts in 2015. Report of the Independent Reviewer on the Operation of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006. London: HMSO. Bigo, D. and Camus, C. (2006) Overview of the French anti-terrorism strategy. Working Document, First Inventory of Policy on Counterterrorism: Germany, France, Italy, Spain, the United Kingdom and the United States. Available at: https://english.wodc.nl/binaries/ca06-3a_full_text_tcm29-68940.pdf. Boutin, B. (2018) Excesses of Counter-Terrorism and Constitutional Review in France. [blog]. 15th May. Available at: http://www.asser.nl/about-the-institute/asser-today/excesses-of-counter-terrorism-and-constitutional-review-infrance-the-example-of-the-criminalisation-of-the-consultation-of-websites/. Cahn, O. (2010) The fight against terrorism and human rights: The French perspective. In: Wade, M. and Maljevic, A. (eds) A War on Terror? New York: Springer. Cahn, O. (2016) «Cet ennemi intérieur, nous devons le combattre». Le dispositif antiterroriste français, une manifestation du droit pénal de l’ennemi. Archives de Politique Criminelle 38: 91–121. CNCDH (2016) Statement of opinion on the state of emergency. Paris: Commission Nationale Consultative des Droits de l’Homme. Crenshaw, M. (2010) ‘Introduction’ in M. Crenshaw (ed.) The Consequences of Counterterrorism. New York: Russell Sage Foundation. Daranowski, P. (2015) Poland. In: K.  Roach (Ed.), Comparative Counter-­ Terrorism Law. Cambridge: Cambridge University Press. Den Boer, M. and Wiegand, I. (2015) From Convergence to Deep Integration: Evaluating the Impact of EU Counter-Terrorism Strategies on Domestic Arenas, Intelligence and National Security, 30(2–3): 377–401. Donohue, L. K. (2007) Britain’s Counterterrorism Policy. In: D. Zimmermann and A. Wenger (eds.) How States Fight Terrorism: Policy Dynamics in the West. Boulder and London: Lynne Rienner Publishers.

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Foley, F. (2013) Justice for suspected terrorists? In: F.  Foley (ed.) Countering Terrorism in Britain and France. Cambridge: Cambridge University Press. French Embassy (2017) France and UK announce plan to tackle online radicalization. [press release]. 13th June. Available at: https://uk.ambafrance.org/ France-and-UK-announce-plan-to-tackle-online-radicalization. Galli, F. (2015) The Law on Terrorism: The UK, France and Italy Compared. Bruxelles: Bruyant. Hamilton, C. (2018a) The European Union: Sword or Shield? Comparing counter-terrorism law in the EU and USA after 9/11. Theoretical Criminology, 22(2): 206–225. Hamilton, C. (2018b) Sword or shield? The influence of international organisations in counterterrorism law and policy making. Brazilian Journal of Criminal Sciences, Dossier ‘Los retos de la política legislativa penal a comienzos del siglo xxi’ – RBCCRIM n° 147 (septiembre/2018). Hill, M. (2018) The Terrorism Acts in 2016. Report of the Independent Reviewer on the Operation of the Terrorism Acts 2000 and 2006. London: HMSO. HM Government (2017) Transparency Report 2017: Disruptive and Investigatory Powers. London: HMSO. Hodgson, J. S. (2013) Legitimacy and state responses to terrorism: The UK and France. Legal Studies Research Paper No. 2013-30. Warwick School of Law. Home Office (2016) Investigatory Powers Bill receives Royal Assent. 29th November. [press release] Available at: https://www.gov.uk/government/ news/investigatory-powers-bill-receives-royal-assent. Home Office (2018) Operation of Police powers under the Terrorism Act 2000 and subsequent legislation: quarterly update to December 2017. 8th March. Available at: https://assets.publishing.service.gov.uk/government/uploads/system/ uploads/attachment_data/file/686342/police-powers-terrorism-dec2017hosb0518.pdf. Human Rights Watch (2008) Preempting justice: Counterterrorism laws and procedures in France. New York: Human Rights Watch. Human Rights Watch (2018a) France’s Creeping terrorism Law restricting Free Speech. May 30th. Available at: https://www.hrw.org/news/2018/05/30/ frances-creeping-terrorism-laws-restricting-free-speech. Human Rights Watch (2018b) Overreach: how new global counterterrorism measures jeopardize rights. World Report 2017. Available at: https://www.hrw.org/ world-report/2017/country-chapters/global. Interstats (2017) Insécurité et délinquance en 2016: premier bilan statistique. Paris: Ministère de Intérieur. Available at: https://www.interieur.gouv.fr/

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Interstats/Actualites/Insecurite-et-delinquance-en-2016-premier-bilanstatistique. Krajewski, K. (2012) Prosecution and Prosecutors in Poland: In quest of independence. Crime and Justice, 41, 75–116. Kusak, M. (2016) Mutual Admissibility of Evidence in Criminal Matters in the EU: A Study of Telephone Tapping and House Search. IRCP Research Series. Volume Available at: https://prawo.amu.edu.pl/__data/assets/pdf_ file/0011/326909/IRCP-53-M-Kusak-Mutual-admissibility-E-version.pdf. Labayle, H. (2012) Les infraction terroristes en droit penal francais: Quel impact des decisions-cadres de 2002 et 2008? In: F. Galli and A. Weyembergh (eds.) EU Counter-terrorism Offences: What impact on national legislation and case law? Bruxelles: Editions de l’Université de Bruxelles. Lennon, G. (2015) Precautionary tales: Suspicionless counter-terrorism stop and search. Criminology and Criminal Justice, 15(1): 44–62. Lennon, G. and Walker, C. (2016) Conclusions. In: G. Lennon and C. Walker (eds.) Routledge Handbook of Law and Terrorism. London: Routledge. Liberty (2018) Liberty’s Second Reading Briefing on the Counter-Terrorism and Border Security Bill 2018. London: Liberty. Available at: https://www.libertyhumanrights.org.uk/sites/default/files/campaigns/resources/ Liberty%27s%20Briefing%20on%20the%20Investigatory%20Powers%20 Bill%20for%20Report%20Stage%20in%20the%20House%20of%20 Commons.pdf. Libront, K. (2014) Definition of Terrorist Act in International Law and Polish Criminal Law. Problems and Policy Implications. In: Milosevic, M. and Rekawek, K. (eds.) Perseverance of Terrorism: Focus on Leaders. Amsterdam: IOS Press. Lyon, D. (2001) Surveillance Society: Monitoring Everyday Life. Milton Keynes: Open University. Mayaud, Y. (2013) La politique d’incrimination du terrorisme à la lumière de la législation récente. AJ Pénal 9. Meyer, C. O. (2009) International Terrorism as a Force of Homogenization? A Constructivist Approach to Understanding Cross-National Threat Perceptions and Responses. Cambridge Review of International Affairs, 22(4): 647–666. Ministère de Intérieur (2017) Sortie de l’état d’urgence: un bilan et des chiffres clés. [press release]. 3rd November. Available at: https://www.interieur.gouv. fr/Espace-presse/Dossiers-de-presse/Sortie-de-l-etat-d-urgence-un-bilan-etdes-chiffres-cles. Murphy, C. C. (2012) EU Counter-Terrorism Law: Pre-emption and the Rule of Law. Oxford: Hart Publishing.

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Newburn, T. and Sparks, R. (2004) Criminal justice and political cultures. In: Newburn, T. and Sparks, R. Criminal Justice and Political Cultures. Cullompton, Devon: Willan. Oehmichen, A. (2009) Terrorism and anti-terror legislation – the terrorised legislator? A comparison of counter-terrorism legislation and its implications on human rights in the legal systems of the United Kingdom, Spain, Germany, and France. PhD Thesis. Leiden: Leiden University. Pantazis, C. and Pemberton, S. (2009) From the old to the new suspect community. British journal of Criminology, 49(5): 646–666. Roach, K. (2011) The United Kingdom Responds A Legislative War on Terrorism. In: Roach, K. (ed.) The 9/11 Effect: Comparative Counter-Terrorism. Cambridge: Cambridge University Press. Roach, K. (2015) Comparative Counter-Terrorism Law Comes of Age. In: Roach, K. (ed.) Comparative Counter-Terrorism Law. Cambridge: Cambridge University Press. Rydzak, J. (2016) Now Poland’s Government is Coming after the Internet. Foreign Policy, 10th June. Available at: https://foreignpolicy.com/2016/06/10/ now-polands-government-is-coming-after-the-internet/. Spencer, J.  R. (2012) ‘No thank you, we’ve already got one!’ Why EU anti-­ terrorist legislation has made little impact on the law in the UK. In: F. Galli and A.  Weyembergh (eds.) EU Counter-terrorism Offences: What impact on national legislation and case law? Bruxelles: Editions de l’Université de Bruxelles. Sugman Stubbs, K. and Galli, F. (2012) Inchoate offences: The sanctioning of an act prior to and irrespective of the commission of any harm. In: F. Galli and A.  Weyembergh (eds.) EU Counter-terrorism Offences: What impact on national legislation and case law? Bruxelles: Editions de l’Université de Bruxelles. Tréguer, F. (2017) Intelligence reform and the Snowden Paradox: The case of France. Media and Communication 5(1): 17–28. UN Human Rights Committee (2016) Concluding observations on the seventh periodic report of Poland (No. CCPR/C/POL/CO/7). Geneva: United Nations Human Rights Committee. Walker, C. (2008) ‘Know thine enemy as thyself ’: discerning friend from foe under anti-terrorism laws [online]. Melbourne University Law Review, 32(2): 275–301. Weil, S. (2018) Terror in Courts. French Counter-Terrorism: Administrative and Penal Avenues. Report for the official visit of the UN Special Rapporteur on

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Counter-Terrorism and Human Rights. May 2018. Available at: https://www. sciencespo.fr/psia/sites/sciencespo.fr.psia/files/Terror%20in%20Courts.pdf. Zedner, L. (2007a) Pre-crime and post-criminology? Theoretical Criminology, 11(2): 261–281. Zedner, L. (2007b) Preventive justice or pre-punishment? The case of control orders. Current Legal Problems, 60(1): 174–203. Zedner, L. (2009) Security and Counter-terrorism. In: Zedner, L. Security. London: Routledge. Zieba, A. (2015) Counterterrorism Systems of Spain and Poland: Comparative Studies. Przeglad Politologiczny, 3, 65–78.

6 Contagion, Counter-Terrorism and Criminology: Strategies for Contestation?

Abstract  This chapter seeks to examine criminology’s role in the social contestation of the contagion phenomenon. The argument is advanced that criminology is well-placed to scrutinise such developments, particularly given the increasingly synergistic and ‘plastic’ relationship between the ‘special’ and the ‘normal’ within criminal justice. The important role played by human rights in contesting excessive securitisation, moreover, will require deeper criminological engagement with human rights. In this regard, it is argued that the application of governmentality-informed criminological concepts may help to illuminate the process and context in which departures from human rights standards are made and the ‘rationalities’ and ‘knowledges’ facilitating them. Keywords  Contagion • Counter-terrorism • Criminology • Contestation

Parts of this chapter draw on an article by C. Hamilton and G. Berlusconi (2018) ‘Counterterrorism, contagion and Criminology: The Case of France’, Criminology & Criminal Justice, 18(5): 568–584. The authors are grateful to Sage for granting permission for reuse of this material.

© The Author(s) 2019 C. Hamilton, Contagion, Counter-Terrorism and Criminology, Crime Prevention and Security Management, https://doi.org/10.1007/978-3-030-12322-2_6

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Introduction Given the contagion identified in previous chapters we now move to examine criminology’s role in the social contestation of the phenomenon. The argument is advanced that criminology is well placed to reflect on these developments, particularly given the increasingly synergistic and ‘plastic’ relationship between the ‘special’ and the ‘normal’ within criminal justice. The important role played by human rights in contesting excessive securitisation, moreover, will require deeper criminological engagement with human rights. In this regard, it is argued that the application of governmentality-informed criminological concepts may help to illuminate the process and context in which departures from human rights standards are made and the ‘rationalities’ and ‘knowledges’ facilitating them.

Contagion, Counter-Terrorism and Criminology Coming from its historical position as a discipline of the Westphalian nation-state or ‘discipline of the inside’ as Loader and Percy (2012) would have it, mainstream criminology traditionally has been reluctant to engage with the terrorism field, terrorism and warfare being seen as more properly the domain of international relations or critical security studies scholars (Aas, 2013). Notwithstanding much important work on the political construction and regulation of the ‘new terrorism’ (Mythen and Walklate, 2006; Walklate and Mythen, 2014) and a growing literature on the aetiology of terrorism (e.g. LaFree and Freilich, 2016), this absence has been particularly keenly felt in the counter-terrorism area (Deflem, 2009: 538). Observing this lacuna and calling for a general criminological theory of security, Zedner (2007a: 264) has argued that ‘the temporal shift denoted by the war on terror poses a powerful challenge to the historic precincts of criminological scholarship. Where once terrorism and counter-terrorism stood outside the normal boundaries of criminological knowledge, they now demand criminological attention.’ Couched within her broader arguments about the limitations of criminological

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­ ationalism, Aas (2013) too has highlighted the transformative potential n of transnational threats such as terrorism for the governance of national security and justice issues, particularly in the context of a seemingly permanent ‘war’ on terror. In similar vein, Aradau and Van Munster (2009) urge criminology to engage with the Schmittian theory of exceptionalism, more commonly the preserve of the international relations field, in order to better understand the significance of the ‘international’ and the role of the exception in underwriting, rather than overwriting, the law. For them, viewing counter-terrorism law through the lens of exceptionalism allows a focus on the manner in which such exceptional politics of fear ‘feed back into society’ thereby ‘integrat[ing] the everyday mundane practices of policing with the exceptional practices of war’ (Aradau and Van Munster, 2009: 698). From this somewhat slow starting point, however, criminology has moved incrementally to engage with counter-terrorism law and policy. Ericson’s (2007) work on ‘counter-law’ is a case in point, employing the twin monikers of ‘Counter-law 1’ (laws that undermine other laws) and ‘Counter-law 2’ (extra-legal surveillance) to capture the multiple forms of  governance spawned by the security state. This work has in turn strongly informed the pioneering research of Murphy (2012) on the impact of the vast body of EU counter-terrorism law, and particularly its implications for fundamental rights and the rule of law. As averred to above, scholars such as Ashworth (Ashworth and Zedner, 2014) and Zedner (2007a, 2007b, 2014) have also been active in debating the criminological implications of more general shifts from a ‘post- to a pre-crime society’ and, correspondingly, from ‘criminal justice’ to ‘security’. Defining ‘pre-crime’ measures as those which permit the state to intervene and restrain an individual on the basis of anticipated harm rather than past wrongdoing, the relevance to (now familiar) counter-terrorism measures such as control orders/terrorism prevention and investigation measures (TPIMs) and the criminalisation of association and preparatory offences is evident. Indeed, it is clear that the catastrophic risks posed by terrorism post 9/11, and the concomitant pressure to action, have acted as a significant spur to pre-emptive governmental action in the field of crime control more generally (Zedner, 2007b). This new security/justice landscape, with its blurring of familiar distinctions between politics and justice, war and

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crime, evidence and intelligence, is only beginning to be negotiated by criminologists in the past decade (Aas, 2012; McCulloch and Pickering, 2009). Implicit within much of this work is a concern for the normalising impulses of counter-terrorist law, and thus its migration to other substantive domains. While recognising that ‘many elements of the post-crime criminal justice framework continue to exist’, McCulloch and Pickering (2009: 641), for example, speak of pre-crime demarking a ‘new frontline so that law is always catching up with the reality of policing’. Zedner (2007a, 2007b) was similarly quick to recognise the hegemonic power of terrorism and the securitisation agenda more generally. Citing the use of the special advocate procedure, first pioneered as a response to national security concerns in immigration hearings, she notes how it subsequently ‘infiltrated … the mainstream criminal process at alarming speed’ (Zedner, 2007b: 201). Further threats to the integrity of the criminal process, involving a substantial expansion of criminal liability, threats to the trial and the principle of proportionate punishment, are identified in later work which colourfully speaks of the criminal law itself being ‘terrorised’ by supposedly ‘exceptional’ amendments to criminal law and procedure introduced in the name of counter-terrorism (Zedner, 2014). Zedner’s arguments in this regard are thought-provoking: might we be premature in celebrating the (partial) return in US counter-terrorism law to a criminal justice model? Are there risks inherent in recourse to the criminal law when it comes to terrorism? It has been the aim of this book to support and develop these arguments through an elaboration of the various ways in which ‘exceptional’ criminal justice measures introduced to combat terrorism in three European countries have come to be applied more widely. Through an empirical excavation of the impact of counter-terrorism measures on criminal justice in these case studies, it has hopefully been demonstrated that a contagion effect occurs through a variety of subtle mechanisms that merit greater scrutiny by criminologists. Even beyond the instant study, comparative accounts from countries such as Norway (Husabø, 2013) and Australia (Ananian-Welsh and Williams, 2015; Appleby and Williams, 2010) are quickly accumulating detailing the substantial impact of counter-terrorist legislation on the criminal justice system

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more broadly. Speaking at a recent event in the Royal Irish Academy in Dublin, Fionnuala Ní Aoláin (2018), UN Special Rapporteur on Counter-Terrorism and Human Rights, was forthright in her view that counter-terrorism law was ‘increasing and encroaching’ in ways that are largely invisible to citizens. Such work prompts further criminological reflection on the connections, both normative and practical, being forged between ‘exceptional’ and ‘ordinary’ legal regimes. If, as Aradau and van Munster (2009: 688) contend, ‘existing criminological interpretations show how exceptional politics overwrites the law’, while for international relations it ‘also underwrites the law’, perhaps it is timely also to acknowledge the exception may become the law? All the more so in the context of a permanent ‘war on terror’, we may struggle to ‘tell the dancer from the dance’, and thus the ordinary business of criminal justice from its more politicised cousin (Kilcommins and Vaughan, 2004: 57). Looking to the French case, for example, is it still correct to speak of France reserving the ‘hard’ face of its criminal law for terrorists while treating other criminals more leniently as observed by comparative scholars such as Whitman (2005: 127)? Is such a binary sustainable, particularly in light of recent events? For how would a French criminologist credibly navigate the contemporary criminal realm in France without reference to the politics and policies of the emergency? Better engagement with counter-terrorism brings, as other authors have observed, both challenges and opportunities (Deflem, 2009). Challenges include the frequent absence, unlike with crime, of hard data on the actual implementation of counter-terrorist legislation as well the shroud of secrecy usually accompanying counter-terrorist operations (see, for example, Lum et al., 2006). This is particularly challenging in a comparative context where one is perhaps grappling with both an unfamiliar language and institutional context. But opportunities also abound. First, the substantial literature already accumulated within criminology on precautionary measures in the context of counter-terrorism may also find an application in the counter-terrorist activities of security and police organisations ‘on the ground’ (Lennon, 2015). Because policing and prosecutorial bodies are inevitably targeted at the criminal components of terrorist incidents, their activities in terrorism-related activities are ideally suited for criminological analysis (Deflem, 2009). Secondly, connected as

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it is to broader debates on transformation in the penal field and the various political transformations which have gone before them, criminology remains well-positioned to reflect on these developments (Loader, 2007). This vantage point is important for, as observed by both Lea (2005, 2015) and Donohue (2012), a contagion effect is by no means one-way; just as important as ‘trickle-down’ is ‘trickle-up’ where policies based on the strategies developed in the ordinary criminal realm migrate (often inappropriately) to the counter-terrorism field. In the UK, for example, powers to compel evidence and produce documents from the field of serious organised crime have been extended to terrorism as have notification requirements previously imposed on sex offenders (Roach, 2011). Indeed, Walker (2013: 265) draws on the similarities between counter-terrorism law and the draconian measures taken in respect of other serious offences such as sex offenders and drug traffickers in the UK in making a case for the ‘plasticity’ of what is both ‘special’ and ‘normal’ in criminal justice. Similarly in France, Lazerges and Henrion-Stoffel (2016) trace the trend towards pre-emption in contemporary counter-terrorism law to the inclusion as far back as 1994 in the ordinary criminal code of a range of offences criminalising risky behaviour. Thus, as will be elaborated further below, in assessing such developments and their migration to the counter-­ terrorist sphere (and back), the unique province of criminology is its ability to reconcile policies aimed at twenty-first-century ‘super-terrorism’ (Lazarus and Goold, 2007) with the pursuit of security of a more anodyne kind.

 riminology, Governmentality and the Limits C of Human Rights If the more criminologically informed analysis proposed above is to form the beginnings of a process of social contestation of contagion, then it is doubtful whether this can be achieved without deeper criminological engagement with human rights. It is to rights that the public, media, politicians and civil society generally look as the traditional antidote to excessive securitisation. As Lazarus and Goold (2007: 1) write, ‘since

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9/11 the words “security” and “human rights” have, in the collective imagination, now come to connote an almost insuperable opposition. Anyone who engages in the debate over security and human rights is almost immediately confronted by this dichotomy, tacit in the political call for a “new balance” and explicit in newspaper editorials calling for the retreat from human rights.’ Having said this, it may be argued that human rights have broadly failed in this task of containing the precautionary approach to terrorism risk outlined in the preceding chapters. Writing in a UK context, leading human rights scholar, Conor Gearty (2006: 125) admits, with admirable candour, that ‘human rights law in the United Kingdom has largely accommodated these security-oriented changes and the effect of this has been to render them seemingly compliant with rather than inherently hostile to human rights principles’. Similar failures can be observed at European level where the human rights rear guard action has not, for example, been able to prevent the use of torture in CIA ‘black sites’ in Europe some 60 years after the signature of the ECHR (Hamilton, 2018). While it has ameliorated (through the Kadi litigation) the procedures for ‘blacklisting’ or freezing of the funds of European citizens, it has not challenged the legitimacy of this practice which proceeds without any evidence of wrongdoing (de Goede, 2011). From the perspective of the current problem of contagion, the picture appears little different. As the discussion in the previous chapters of this book has shown, with some notable exceptions, such as the ECtHR decision in Gillan, to date rights have proved largely inadequate to the task of stemming the drift towards contagion. So how can ‘doing rights criminologically’ (Murphy and Whitty, 2013: 580) help? After a long period of neglect, academic criminology’s engagement with the field of human rights has been slowly building (ibid.; Weber et al., 2016), including many useful reflections on how the theories and methods of criminology can work with the human rights movement to ‘meet the proliferating challenges of the present’ (Hogg, 2016: 110; see also Weber et  al., 2014, Chaps. 5 and 13). Hogg (2016), for example, points to the ‘limits of legalism’, with which rights are closely associated, and the need, following Loader (2007), to assert the ‘cultural lives’ of rights and security. In line with this, he argues that criminology has a key role to play in analysing the situated dynamics of moral panics

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over crime and terrorism and intervening in policy debates to moderate their dangerous effects. Likewise, where appeals to the abstract universalism of human rights struggle to find a resonance, criminology can research situated cultural dispositions in framing how violence and suffering are understood and responded to in different communities and contexts. In line with what Hogg has suggested, it is argued here that it is perhaps in its capacity as a ‘critical friend’ (Gearty, 2006: 14; Hamilton, 2017) of human rights that criminology can best serve to counter excessive securitisation. Building on existing critiques of the limits of legalism, criminology can contribute to the critical study of power and governance in areas such as security where a significant gulf exists between human rights ideals and lived experiences. In particular, given the paradoxical rise of human rights in tandem with securitising and criminalising discourses (Hamilton, 2018), governmentality-informed criminology may focus attention on the potential of rights to extend governance as they simultaneously work to emancipate (see, in another context, Sokhi-Bulley, 2016). Unsurprisingly, existing criminological critiques of rights in the security context have centred on the pitfalls associated with legalism. Zedner (2007b) identifies several difficulties with the traditional approach to human rights, among them: (1) the heavy emphasis on the judiciary at the expense of other institutions/decision-makers, (2) the neglect of the information supplied by ‘expert’ non-judicial decision-makers such as the intelligence services, (3) the manner in which human rights set up binaries concerning compliance or non-compliance, giving rise to (4) the need for ‘thicker’ normative basis for critique. Unpacking these criticisms, it is perhaps the question of the ‘political’ versus the ‘judicial’ that merits most scrutiny in the context of security. In all criminal justice policymaking, but a fortiori in matters of the security of the state, the success of human rights claims is highly dependent upon their political or strategic viability. As de Londras et al. (2015: 24) observe in previous research conducted with European policymakers working in the security field, ‘ultimately what determines the outcome of any process relating to counter-­terrorism is political will: in the absence of a definitive legal decision as to ‘legitimacy’ (i.e. a court case), political judgement determines proportionality, necessity and ultimately legitimacy’ (emphasis added). Such deceptively simple findings invite a view of human rights less as an

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unproblematic vector of normative aspirations, and more as a ‘battleground’ (Minkkinen, 2009) which is highly susceptible to security claims in a given moment. In this light, proposed ‘solutions’ to excessive securitisation such as a ‘culture of justification’ (Dynzenhaus, 2007), placing the onus on the political body proposing the measure to demonstrate fundamental requirements of legality and respect for human rights, appear to somewhat miss the point. Krasmann (2012) identifies this weakness in current human rights discourse as the assumption of a common concern about rights in this field. As she argues, ‘it presupposes what has yet to arise, namely a common concern about governmental encroachment in the name of security and a willingness of all parties to join in that discourse’ (2012: 381–382). When combined with pressure from international organisations such as the UN Security Council (Powell, 2007), it is not difficult to see how the sheer ‘instrumentality and hegemonic’ (Weber et al., 2014: 99) force of executive and legislative action finds security measures rapidly outpacing judicial proceedings (witness the findings by the European Court of Human Rights on CIA black sites some 12 years after the event). To address this problem Krasmann (2012) has proposed a Foucauldian reconception of law ‘as a practice’, discernible only in the manner of its realisation. As an illustration of law’s limits in the security field and its permeability to what is considered ‘necessary’, she cites the example of torture and the manner in which it has been inscribed into law, both in the infamous US ‘torture memos’ and in scholarly debate (e.g. Dershowitz, 2004). This idea of law and rights is one that is highly contingent, political and relational. Unlike conventional approaches to rights, the focus is firmly on modes of thinking (of all decision-makers, not only the judiciary); forms of knowledge informing such decision-making; and the mechanisms by which these are translated into reality. More concretely, this would involve the application of a Foucault-inspired governmentality analytic to identify: the process and context in which departures from human rights standards are made; the ‘rationalities’ and ‘knowledges’ which facilitate them; the practices and devices (‘technologies’) that translate political reasoning into programmes of government (Hunt, 2013; Rose et al., 2006); and the policy lessons we can learn from these observations (Lippert, 2016a).

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Foucault’s conception of law and rights has historically been associated with the postmodern school of thought suggesting he would have no truck with the universalist concept of human rights at all (Weber et al., 2014). Foucault was an elusive thinker, however, whose thought was constantly evolving and, more recently, scholars such as Golder (2011) have detected in his later work a ‘critical affirmation’ of rights discourse, according to which he neither rejects nor embraces rights but rather engages ‘critically within and against existing rights discourse’ (Golder, 2011: 286). On this view, rights are neither apolitical ideals nor ‘an anti-­ politics  - a pure defense of the innocent and powerless against power’ (Brown, 2004: 453), but rather political tools which may be implicated in relations of power as much as a means of criticising them (Ivison, 2008). Foucault, then, forces us to pay attention to the power-knowledge networks inherent in the bureaucratic, political and juridical apparatus through which rights are negotiated. In so doing, his work opens up important possibilities for a politically richer, more self-reflexive and ultimately less disingenuous rights discourse (Golder, 2011). Foucault’s aim was always to understand the limits of ways of thinking in order to find possibilities for thinking differently, thereby enhancing our capacity for change in this area. In the counter-terrorism context, it is argued that his view of rights as political tools which may be as much implicated in relations of power as a means of resistance is one which retains much utility and potential (Hamilton and Lippert, forthcoming).1 For a fully developed analysis of governance in this area, however, it is important to return to the points made at the start of the chapter concerning the complementarity between the ordinary and the ‘exceptional’ and the increased ‘plasticity’ of both. In this regard, it is argued that various dimensions of the bigger picture are required which criminology can do much to provide. First of all, securitising discourses in the counter-terrorism field are best understood against the backdrop of a broader ‘punitive turn’ (Hamilton, 2014a, 2014b), one which is frequently linked to the ‘free market turn’ or advent of neoliberalism (Downes, 2011). In drawing attention to the ‘cultural lives of security and rights’, Loader (2007) correctly points to the need for connections to be forged between contemporary discourses on security and rights and the various political and penological transformations which have gone

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before them. As he argues, it is the ‘logic of populist reason’ (Laclau, 2005) or, in Garland’s (2001) words, ‘culture of control’ that have created the conditions in which popular appeals to security can be made so successfully. Within criminology, the governmentality analytic has played an important role in understanding and conceptualising important features of the ‘punitive turn’ and the growing centrality of ‘law and order’ as a political and public concern (Lippert and Stenson, 2010). Perhaps most significantly, the two key themes of ‘responsibilisation’ and ‘governing through [crime]’ have been used extensively in the criminological literature in order to render intelligible significant changes in the penal and crime control field (Lippert, 2016b). The former concept, a key component of David Garland’s (2001) Culture of Control, is a neoliberal rationality which involves devolving responsibility for governance of crime from the state to local authorities, private security agencies or individuals (similar trends, notably, can be observed in counter-terrorism, see O’Donnell, 2016). The latter refers to the use of crime as a mode of governance in order to justify ‘interventions that have other motivations’ (Simon, 2007: 4). Together with the work of other criminologists writing in a governmentality vein, such as O’Malley (1992, 1999), Garland and Simon’s work has been adept at linking newly ascendant technologies (e.g. risk assessments) in the crime field with political rationalities hostile to the welfare state, namely, neoliberalism. Deploying these and other conceptual tools, therefore, governmentality-­ informed criminology may help provide answers to the elusive question of how we currently govern the terrorism problem and, no less significant, how we are to be governed (Lippert, 2016a). The ‘added value’ of the governmentality literature within the security/rights area, however, is not confined to the provision of historical perspectives on counter-­ terrorism and its relation to the complex and contradictory field of neoliberal politics. On the contrary, very real benefits may be derived from a ‘horizontal’ analysis which can situate contemporary counter-terrorism policies alongside crime governance strategies more broadly. Within the legal and international relations literature, terrorism is often treated as a distinct governmental problem because of the existential threat which it

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poses to the state, and therefore one which invites analysis of the nature of exceptional sovereign power or ‘exceptionalism’ (see, for example, Agamben, 2005). As we have seen in the previous chapters, however, various governmental strategies developed to control serious crime and indeed, less serious forms of crime (anti-social behaviour), in recent years have much in common with those applied to terrorism (Lea, 2015). In jurisdictions such as France, for example, the reciprocal nature of policies directed at terrorism and at drug/organised crime renders highly problematic the neat division between these two areas (Hamilton and Berlusconi, 2018). We do well to remember, therefore, that security measures in the counter-terrorism sphere, like those applied to crime more generally, are, in Foucauldian terms, ‘disciplinary’ measures and, as Neal (2012) has argued strongly in the context of the international relations literature, should not be sealed off analytically from (security) politics more generally.

Conclusion With the seepage of extraordinary powers into other areas of the criminal law, the lines between crime and the more politicised terrain of the ‘emergency’ have become blurred, thereby problematising analyses which tend to rely on this binary. Viewed in this light, there are strong reasons for analysing counter-terrorism measures, with their serious implications for human rights, through the lens of governmentality-informed criminology. As Lippert (2016a) argues, the fresh, and radical, perspective which it affords, has much to offer critically orientated criminologists working in the broad human rights field, not least a better understanding of how discourses can become ‘amenable to progressive intervention and reform … while avoiding ill-conceived totalizing endeavours doomed to fail’ (Lippert, 2016a: 88). Indeed, it is perhaps only through careful empirical examination of governmental discourse in the security field (at both European and Member State level) that the detailed workings of human rights claims and decision-making will be revealed, enabling us to move beyond the current drift towards securitisation.

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Note 1. It also chimes with emerging criminological work on the potential of human rights to act as a legitimating mechanism for a more punitive logic in the criminal sphere (see, for example, Sandy (2013)).

References Aas, K. F. (2012) (In)security-at-a-distance: rescaling justice, risk and warfare in a transnational age. Global Crime, 13(4): 235–253. Aas, K.  F. (2013) Globalization and Crime. Thousand Oaks, CA: SAGE Publications. Agamben, G. (2005) State of Exception. Chicago, IL: University of Chicago Press. Ananian-Welsh, R. and Williams, G. (2015) The New Terrorists: The Normalisation and Spread of Anti-Terror Laws in Australia. Melbourne University Law Review, 38(2): 362–408. Appleby, G. and Williams, J. (2010) The anti-terror creep: Law and order, the states and the high court in Australia. In: McGarrity N and Williams LN (eds), Counter-Terrorism and Beyond: The culture of law and justice after 9/11, London: Routledge. Aradau, C. and van Munster, R. (2009) Exceptionalism and the ‘War on Terror’: Criminology Meets International Relations. British Journal of Criminology, 49(5): 686–701. Ashworth, A. and Zedner, L. (2014) Preventive Justice. Oxford: Oxford University Press. Brown, W. (2004) ‘The most we can hope for…’: Human rights and the politics of fatalism. South Atlantic Quarterly, 103(2–3): 451–463. De Goede, M. (2011) Blacklisting and the ban: Contesting targeted sanctions in Europe. Security Dialogue, 42(6): 499–515. De Londras, F. (SECILE Consortium) (2015) SECILE: The Impact, Legitimacy and Effectiveness of EU Counter-terrorism Legislation. SECILE. Available at: https://fdelondras.files.wordpress.com/2016/01/secile-d5-3.pdf. Deflem, M. (2009) Terrorism. In: Miller, M. J. (ed.), 21st Century Criminology: A Reference Handbook, Thousand Oaks: SAGE Publications. Dershowitz, A. M. (2004) Tortured reasoning. In: Levinson, S. (ed.) Torture: A Collection. Oxford and New York: Oxford University Press.

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Donohue, L. K. (2012) Transplantation. In: Ramraj, V. V., Hor, M. and Roach, K. (eds), Global Anti-Terrorism Law and Policy. Cambridge: Cambridge University Press. Downes, D. (2011) Comparative Criminology, Globalization and the ‘Punitive Turn’. In: Nelken, D. (ed.) Comparative Criminal Justice and Globalization. Farnham, Surrey: Ashgate. Dynzenhaus, D. (2007) Deference, security and human rights. In: Goold BJ and Lazarus L (eds) Security and Human Rights. Portland: Hart Publishing. Ericson, R. V. (2007) Crime in an Insecure World. London: Polity Press. Garland, D. (2001) The Culture of Control. Oxford: Oxford University Press. Gearty, C. (2006) Can Human Rights Survive? Cambridge: Cambridge University Press. Golder, B. (2011) Foucault’s critical (yet ambivalent) affirmation: Three figures of rights. Social & Legal Studies, 20(3): 283–312. Hamilton, C. (2014a) Reconceptualising Penality: Towards a Multidimensional Test for Punitiveness. British Journal of Criminology, 52(4): 321–343. Hamilton, C. (2014b) Reconceptualising Penality: A comparative perspective on punitiveness in Ireland, Scotland and New Zealand. Farnham, UK: Ashgate. Hamilton, C. (2017) Human Rights, Social Science and the Siren Call of Security, Royal Irish Academy, Symposium on ‘Human Rights: Culture and Critique’, 22nd June. Hamilton, C. (2018) The European Union: Sword or Shield? Comparing counter-­terrorism law in the EU and USA after 9/11. Theoretical Criminology, 22(2): 206–225. Hamilton, C. and Berlusconi, G. (2018) ‘Counter-terrorism, contagion and Criminology: The Case of France’, Criminology & Criminal Justice, 18(5): 568–584. Hamilton, C. and Lippert, R. (forthcoming, 2020) Squaring the Circle?: Governing Through Human Rights in Counter-Terrorism. Critical Criminology. Hogg, R. (2016) Criminology, globalization and human rights. In: L. Weber, E. Fishwick, and M. Marmo (eds.) The Routledge International Handbook of Criminology and Human Rights. London: Routledge. Hunt, A. (2013) Encounters with juridical assemblages: reflections on Foucault, law and the juridical. In: Golder B (ed), Re-reading Foucault: on law, power and rights. New York: Routledge. Husabø, E. J. (2013) Counterterrorism and the Expansion of Proactive Police Powers in the Nordic States. Journal of Scandinavian Studies in Criminology and Crime Prevention, 14(1): 3–23.

6  Contagion, Counter-Terrorism and Criminology: Strategies… 

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Ivison, D. (2008) Rights. Stocksfield: Acumen. Kilcommins, S. and Vaughan, B. (2004) A Perpetual State of Emergency: Subverting the Rule of Law in Ireland. Cambrian Law Review, 35: 55–80. Krasmann, S. (2012) Law’s Knowledge: On the susceptibility and resistance of legal practices to security matters. Theoretical Criminology, 16(4) 379–394. Laclau, E. (2005) On Populist Reason. London/New York: Verso. LaFree, G. and Freilich, J. D. (eds) (2016) The Handbook of the Criminology of Terrorism. Chichester: Wiley-Blackwell. Lazarus, L. and Goold, B. J. (2007) Security and Human Rights: The Search for a Language of Reconciliation. In: Goold, B. J. and Lazarus, L. (eds), Security and Human Rights, Portland: Hart Publishing. Lazerges, C. and Henrion-Stoffel, H. (2016) Chronique de politique criminelle: Le déclin du droit pénal: l’emergence d’une politique criminelle de l’ennemi. Revue de science criminelle et de droit pénal comparé (3): 649–661. Lea, J. (2005) Terrorism, Crime and the Collapse of Civil Liberties. Lecture to Criminology Society at Middlesex University in April 2005. Lea, J. (2015) From the criminalisation of war to the militarisation of crime control. In: Walklate, S. and McGarry, R. (eds), Criminology and War: Transgressing the borders. Abingdon: Routledge. Lennon, G. (2015) Precautionary tales: Suspicionless counter-terrorism stop and search. Criminology and Criminal Justice, 15(1): 44–62. Lippert, R. K. (2016a) Governmentality analytics and human rights in criminology. In: L.  Weber, E.  Fishwick, and M.  Marmo (eds.) The Routledge International Handbook of Criminology and Human Rights. London: Routledge. Lippert, R.  K. (2016b) Governmentality. In: A.  Brismann, E.  Carrabine and N.  South. (eds.) The Routledge Companion to Criminological Theory and Concepts. London: Routledge. Lippert, R. K. and Stenson, K. (2010) Advancing governmentality studies: lessons from social constructionism. Theoretical Criminology, 14(4): 473–494. Loader, I. (2007) The Cultural Lives of Security and Rights. In: Goold, B. J. and Lazarus, L. (eds), Security and Human Rights, Portland: Hart Publishing. Loader, I. and Percy, S. (2012) Bringing the ‘outside’ in and the ‘inside’ out: crossing the criminology/IR divide. Global Crime, 13(4): 213–218. Lum, C., Kennedy, L. W. and Sherley, A. (2006) Are counter-terrorism strategies effective? The results of the Campbell Systematic Review on Counter-­ Terrorism Evaluation Research. Journal of Experimental Criminology, 2(4): 489–516.

144 

C. Hamilton

McCulloch, J. and Pickering, S. (2009) Pre-Crime and Counter-Terrorism: Imagining Future Crime in the ‘War on Terror’. British Journal of Criminology, 49(5): 628–645. Murphy, C. C. (2012) EU Counter-Terrorism Law: Pre-emption and the Rule of Law. Oxford: Hart Publishing. Mythen, G. and Walklate, S. (2006) Criminology and Terrorism: Which Thesis? Risk Society or Governmentality? The British Journal of Criminology, 46(3): 379–398. Minkkinen, P. (2009) Sovereignty, Knowledge, Law. London: Routledge. Murphy, T. and Whitty, N. (2013) Making History: Academic Criminology and Human Rights. British Journal of Criminology, 53(4): 568–587. Neal, A. (2012) ‘Events dear boy, events’: terrorism and security from the perspective of politics. Critical Studies on Terrorism, 5(1): 107–120. O’Donnell, A. (2016) Securitisation, Counterterrorism and the Silencing of Dissent: The Educational Implications of Prevent. British Journal of Educational Studies, 64(1): 53–76. O’Malley, P. (1992) Risk, Power and Crime Prevention. Economy and Society, 21(3): 252–275. O’Malley, P. (1999) Volatile and Contradictory Punishment. Theoretical Criminology, 3: 175–196. Powell, C.  H. (2007) The Legal Authority of the United Nations Security Council. In: Goold, B. J. and Lazarus, L. (eds) Security and Human Rights. Oxford: Hart Publishing. Roach, K. (2011) The 9/11 effect: Comparative counter-terrorism. Cambridge: Cambridge University Press. Rose, N., O’Malley, P. and Valverde, M. (2006) Governmentality. Annual Review of Law and Social Science, 2: 83–104. Sandy, L. (2013) International agendas and sex worker rights in Cambodia. In: M. Ford (ed.) Social Activism in Southeast Asia. New York: Routledge. Simon, J. (2007) Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear. New  York: Oxford University Press. Sokhi-Bulley, B. (2016) Governing (Through) Rights. Hart: Oxford. Walker, C. (2013) Terrorism Prosecution in the United Kingdom: Lessons in the Manipulation of Criminalization and Due Process. In: Ni Aolain, F. and O.  Gross (eds.) Guantanamo and Beyond: Exceptional Courts and Military Commissions in Comparative Perspective. Cambridge: Cambridge University Press.

6  Contagion, Counter-Terrorism and Criminology: Strategies… 

145

Walklate, S. and Mythen, G. (2014) Contradictions of Terrorism: Security, Risk and Resilience. London: Routledge. Weber, L., Fishwick, E. and Marmo, M. (2014) Crime, Justice and Human Rights. London: Palgrave. Weber, L., Fishwick, E. and Marmo, M. (eds.) (2016) The Routledge International Handbook of Criminology and Human Rights. London: Routledge. Whitman, J. Q. (2005) Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe. Oxford: Oxford University Press. Zedner, L. (2007a) Pre-crime and post-criminology? Theoretical Criminology, 11(2): 261–281. Zedner, L. (2007b) Preventive Justice or Pre-Punishment? The Case of Control Orders. Current Legal Problems, 60(1): 174–203. Zedner, L. (2014) Terrorizing Criminal Law. Criminal Law and Philosophy, 8(1): 99–121.

Index

NUMBERS AND SYMBOLS

7/7 bombings, see London attacks 9/11 attacks, see Twin Tower attacks A

A. v. Secretary of State for the Home Department (Belmarsh case) [2004] UKHL 56, 20, 35 Aas, K., 131 Academic research, 111 Administrative detention, see Internment Administrative measures, 64, 113, 114, 121 France (see French counter-­ terrorism legislation) Afghanistan, 50 Ahmed et al. v. HM Treasury [2010] UKSC 2; [2010] 2 WLR 378, 28

Algerian war of independence, 76–77, 83 ‘All-risks’ policing, see Policing powers Al-Qaeda terrorism, 7 Ambulance services, 31 Amnesty International, 2, 53, 88, 98, 113 Anderson, David, QC, 19, 20 Anti-social behaviour, 30–31, 37, 120, 140 Apology of terrorism, see French counter-terrorism legislation Aradau, C., 131, 133 Ashworth, A., 131 Assemblée Nationale (France), 94 Asset forfeiture, 21 Asset-freezing, 28, 32, 38, 80, 86–87 Australia, 132 Authority-to-carry schemes, 33

© The Author(s) 2019 C. Hamilton, Contagion, Counter-Terrorism and Criminology, Crime Prevention and Security Management, https://doi.org/10.1007/978-3-030-12322-2

147

148 Index B

Baker, E., 3 Belgium, 3 Bigo, Didier, 97 Blackbourn, J., 19 ‘Blacklisting’ orders, 27–28 ‘Blank cheque’ legislation, 5–6 France, 79 Poland, 61–63 UK, 19, 31–34 Blunkett, David, MP, 119–120 Birmingham bombing (1974), 17 British colonies, 119 British Commonwealth, 119 Brussels attacks, 60, 113 C

Cahn, O., 93, 95, 97, 120 Cameron-Clegg government (UK), see Conservative-Liberal Democrat government CCTV, 120 CIA ‘black sites,’ 53, 135, 137 Citizens’ Militia (Poland), 56 Civil law measures, 24, 35–37 See also Control orders; Procedural contagion Civil liberties, see Human rights Closed proceedings, 38, 39 Commission Nationale Consultative des Droits de l ’Homme (CNDCH), 84, 89, 94 Commission Nationale de Contrôle des techniques de renseignement (CNIL), 82, 88 Comparative research, 7–8 Conseil Constitutionnel (France), 89–91, 96, 120

Conseil d ’Etat (France), 83, 89, 92 Conservative-Liberal Democrat government [UK], 19 Conspiracy to commit terrorism, see French counter-terrorism legislation Constitutional Tribunal (Poland), 61 Contagion, 4–6, 110, 111, 121, 132, 134 comparative research, 7–8 contamination, 4 forms of, 5–7, 9 (see also ‘Blank cheque’ legislation; Normalisation; Picklock) French legislation, 78, 87–97 legal literature on, 5 Polish legislation, 59–65 prevention, shift towards, 110 procedural safeguards, dilution of (see Procedural contagion) social contestation of, 4, 130, 134 UK legislation, 28–39 Control orders [UK], 21–23, 35–38, 114, 131 human rights, and, 21 special advocate procedure, 38 TPIMs, replacement by, 22 types of, 21 Council of Europe, 52, 92 ‘Counter-law,’ 38, 131 Counter-terrorism dispositif, 86 Counter-terrorism legislation, 1–4 9/11, responses to (see Twin Tower attacks) abuses of, 3, 5–6 comparative research, 7–8 consensus on, 4, 76, 117–120 ‘contagion’ effect (see Contagion)

 Index 

EU measures (see EU counter-­ terrorism law; European Arrest Warrant) EU states and regional bodies, 2, 4 (see also French counter-­ terrorism legislation; Polish) ‘friends of my enemy,’ covering, 2, 110 ‘hegemonic tendency,’ 137 implementation of, 133 non-terrorist crimes, application to, 6 (see also Contagion) policy trends (see Counter-­ terrorism policy) precautionary logic (see Precautionary approach) procedural safeguards, dilution of (see Procedural contagion) reaction-politics, 5 transplantation (see Transplantation) Counter-terrorism policy convergence in, 9, 121 ‘policy laundering,’ 119 policy transfer, 9, 117, 119, 121 trends in, 9, 109–112 Crime control, 3, 37, 51, 110, 131, 139 Criminal investigations disclosure of information, 29–30 Criminalisation, 91, 114 EU law, 25 French law, 113–115, 118 Polish law, 54 ‘thought crime,’ 34, 38, 120 UK law, 16–17, 19, 22, 24–26, 33–35, 132

149

Criminal law counter-terrorism/terrorism, impact of, 9, 24–26, 35, 110, 132–134 (see also Contagion; Criminal offences; Criminal procedure; Criminalisation; Precautionary approach; Sentencing) emergency powers, and, 9 (see also Emergency powers) ‘special’ and ‘normal’ plasticity of, 134, 138 traditional model, deviation from, 33, 111 Criminal offences expansion of, 25, 132 (see also French counter-terrorism legislation; Polish counter-­ terrorism legislation; Polish criminal code; UK counter-­ terrorism legislation) organised crime (see Organised crime) vagueness of, 111 See also Inchoate offences; Precursor offences; Preparation offence; Provocation offences Criminal procedure culture of avoidance, 35 dilution of safeguards, 35 ‘exceptional’ amendments to, 132 France (see French criminal code) Poland (see Polish criminal code) threats to integrity of, 132 UK code, 26

150 Index

Criminology human rights, and, 10, 134–140 social contestation of contagion, role in, 4, 10, 130, 134 terrorism/counter-terrorism, 3, 4, 130–132, 134, 135 See also Governmental criminology D

Daranowski, P., 54, 56, 57, 64 De Londras, F., 136 Definitions of terrorism, 32, 111 EU legislation, 24–28, 118, 119 human rights concerns, 116 Polish law, 54–55, 62–65, 116, 117 UK law, 17–18, 25, 32, 116, 118 Den Boer, M., 5 Department of Work and Pensions [UK], 31 Detention, 24 administrative, 16, 29 extended period of France, 80, 94, 112 Poland, 57–65, 111–113 UK, 22, 38, 111, 112 Disclosure of information, 21 criminal investigations, 29–30 Discretionary powers, 18, 34, 62, 110, 116 Donohue, L.K., 5–7, 28, 134 ‘Draconian’ powers, 6, 23, 29, 58, 61, 63, 113 Droit d’exception (exceptional law), 5 Drugs offences, see French counter-­ terrorism legislation Dumortier, E., 3

E

EAW, see European Arrest Warrant Economist, The, 90 Emergency powers, 7–8, 114, 140 France, 113–114 (see also French counter-terrorism legislation) Poland, 51, 56 United Kingdom, 7, 16, 17, 114 Encouraging terrorism, offence of, 22, 33 Enhanced Terrorism Prevention and Investigation Measures (ETPIMS), 19 See also Terrorism Prevention and Investigation Measures (TPIMs) Environmental activists, 92, 116 Ericson, R. V., 38, 131 ETPIMS, see Enhanced Terrorism Prevention and Investigation Measures EU counter-terrorism law, 2–5, 8–10, 24–28 asset-freezing, 28, 86–87 autonomous restrictive measures regime, 27 ‘blacklisting’ orders, 27–28 comparative research, 7–8 crime control policy, impact on, 3 definition of terrorism, 25, 119 EAW procedure (see European Arrest Warrant) financing of terrorism, 54 Framework Decisions, 25, 54, 86 harmonization of, 25 influence of on French law, 85–87, 118, 119 on Polish law, 53–55

 Index 

on UK law, 24–28, 118–119 public provocation offence, 25 UNSC resolutions, implementation of, 27–28 European Arrest Warrant (EAW), 8, 26–27 Framework Decision, 25, 26, 117–118 French use of, 86 minor offences, use for, 8, 26, 59, 60 Polish use of, 8, 26, 87, 117–119 requests to UK, 55 UK, use in, 26–27 Polish requests, 26, 55 problematic requests, 27 proportionality, 26 European Commission, 86 European Convention on Human Rights (ECHR), 17, 20, 21, 88, 135 European Court of Human Rights, 6, 53, 111, 135, 137 stop and search powers, and, 32 European Court of Justice, 27 European Union, 2, 3, 7, 55, 56, 117, 118 counter-terrorism measures (see EU counter-terrorism law; European Arrest Warrant) crime control policy, 3 securitisation, drift towards, 3, 5, 6, 8, 10 Europol, 2 Exceptionalism, 131–133, 140 Extradition, see European Arrest Warrant ‘Extremism,’ measures against, 23–24

151

F

Fenwick, H., 19, 29, 30 FIDH, see International Federation of Human Rights Financing of terrorism, measures against, 21, 28, 53–55, 84–85 See also Asset-freezing Foley, F., 76, 121 Food Standards Agency (UK), 31 Foreign terrorist fighters (FTFs), restrictions on, 118 French law, 78, 82–83, 86, 118–120 UK law, 23, 26, 33–34 UNSC resolutions, 82, 86, 118 Foucault, M., 137–139 France, 3, 4 Algerian war, 76–77, 83 Constitutional Council (see Conseil Constitutionnel) Council of State (see Conseil d ’Etat) counter-terrorism measures (see French counter-terrorism legislation) criminal procedural code (see French criminal code) illegal immigration, control of, 92 police (see French police forces) security consensus, 76, 121 terrorist attacks, 2, 7, 76–78, 82, 87–88, 91, 94, 95, 112, 113 jihadist terrorism, 2 Frankowski, S., 51, 52 Freedom of assembly, 58 Freedom of expression, 24, 34 Freedom of thought, 120 Freezing of assets, see Asset-freezing

152 Index

French counter-terrorism legislation, 7, 8, 35, 57, 77, 82, 86, 116 administrative measures, 78–79, 91, 95–96, 98, 113 contagion, forms of, 87–97 ‘blank cheque’ legislation, 90–93 normalisation, 93–97 ‘picklock,’ use of terrorism as a, 87–90 criminalisation, 98 criminal offences (see also French criminal code) ancillary offences, 91 ‘apology of terrorism,’ 82, 91, 94, 98, 99, 114–115 conspiracy to commit terrorism (AMT offence), 77, 82, 86, 91, 115, 116, 118, 119 consulting terrorist material online, 84, 85, 91, 115, 120 directing or organising a terrorist group, 80 incitement to terrorism, 81, 87 ‘individual terrorist enterprise,’ 82 insulting an officer, 85 justification of terrorism, 81, 91 new offences, 78, 80–81, 90, 114–115 organised crime (see Organised crime) promotion of terrorism, 91 provocation to terrorism, 91, 92, 112 recruitment for terrorism, 81, 86

criminal procedure bis, 90, 93 drugs and weapons offences, 89, 92–93, 97, 98, 140 EAW procedure, use of, 87 emergency measures (see State of emergency) EU legislation, influence of, 79, 85–88, 118, 119 extra-territoriality, 81 financing of terrorism, measures against, 79, 84–85 asset-freezing, 81, 86–87 ‘French Patriot Act,’ 82, 87–89 FTFs, restrictions on (see Foreign terrorist fighters) historical background, 76–77 house arrests, 9, 85, 92, 95–96, 98, 114 human rights, impact on (see Human rights) intelligence measures (see Intelligence measures; Surveillance measures) judicial response, 76 meeting/worship places, power to close, 83–85, 114 organised crime, application to (see Organised crime) policing powers, 9, 112 ‘all risks’ approach, 112 extended detention, 80, 84, 94, 112 ‘generalisation,’ 90 lethal force, 84, 112 pre-emptive investigations, 77 post-9/11 measures, 89–90 pre-emption, trend towards, 77, 91, 97, 98, 134

 Index 

prevention strategy, 77, 78, 80, 82, 98 public demonstrations, banning of, 9, 83, 114 search powers, 84, 86, 89–90 house searches, 9, 80, 83, 85 private security agents, 112 vehicle searches, 79, 85, 90, 93, 97 security measures, 77–79, 84–85, 90, 111 security zones, 85, 112 special non-jury terrorism courts, 7, 77 state of emergency, 76, 78, 83–86, 92–93, 99, 112, 133 abuses, 92, 116 extension of, 83, 84, 92–93, 96 institutionalisation of, 95 surveillance powers (see Surveillance measures) travel restrictions, 78, 114 UK legislation, and, 118–121 UNSC resolutions, implementation of, 82, 86 websites, powers to block, 82 French criminal code, 77, 86, 93, 95, 97 French police forces, 84, 98 administrative police, 98 increased powers (see French counter-terrorism legislation) judicial police, 80 National Gendarmerie, 85 Fundamental rights, see Human rights

153

G

Gambling Commission (UK), 31 Garland, David, Culture of Control, 139 Gearty, Conor, 134–136 Germany, 3, 27 Gillan and Quinton v United Kingdom (ECtHR, Application no. 4158/05), 111, 135 Glorification of terrorism, 22, 33 Golder, B., 138 Gould, B. J., 134 Governmental criminology, human rights, and, 10, 130, 134–140 Groupe Islamique Armé (GIA), 76 Guilt by association, 111 H

Hegemonic tendency, 4, 93 Henrion-Stoffel, H., 134 Hogg, R., 135, 136 Hollande, François, 92 Home Office (UK), 19, 20, 30, 31, 119 House arrests/searches, see French counter-terrorism legislation House of Lords (UK), 21, 30, 35 Human rights, 3, 10, 28, 117, 131, 133, 136–140 control orders, and, 21, 22 definitions of terrorism, 110, 111 French counter-terrorism legislation, and, 76, 81, 88, 90, 92, 97 governmental criminology and, 10, 130, 134–140

154 Index

Human rights (cont.) inchoate offences, 33 Polish counter-terrorism legislation, and, 53, 57, 59–61, 117 ‘political’ vs. ‘judicial,’ 136–137 precautionary approach, 135 procedural safeguards, dilution of (see Procedural contagion) securitisation, and, 10, 110, 111, 130, 134–137 stop and search powers, and, 32 traditional approach, difficulties with, 136 UK counter-terrorism legislation, and, 16, 17, 20–22, 24, 31–33, 116, 117, 134–135 universal concept of, 136, 138 See also European Convention on Human Rights Human Rights Watch, 3, 118 Hungary, 3, 120

database for convicted terrorists, 80, 84 electronic metadata, 57, 83, 88, 113 French legislation, 78–79, 82, 86–88, 95, 97 information on suspects, 56–57 personal data, 58, 113 Polish legislation, 55–57, 59, 62–65, 113 telecommunications data, 57, 113 Intelligence services, 56, 136 International Federation of Human Rights (FIDH), 88, 89, 92, 94, 95, 97, 98 Internet, 23, 25, 31, 88 See also Websites Internment, 20 Iraq, 23, 28, 50, 78 Irish terrorism, 18, 23–24 See also Northern Irish conflict ISIS, 23, 34 Italy, 2

I

J

Immigration laws, 38, 52, 56–57, 92 Inchoate offences, 111 ‘super inchoate’ offences, 33 Incitement to terrorism, 81, 87 Independent Reviewer of Terrorism Legislation (IRTL), 20, 24, 34, 116 Information-seeking, offence of, 24, 34 Intelligence measures

Jihadist terrorism, 2, 18–19, 61, 76 Joint Committee on Human Rights (UK), 24, 33–34 Journalistic research, 111 Judicial review, 3, 27, 95–96 Justification of terrorism, 81, 91 K

Kenya, 16 Krajewski, K., 8, 51

 Index 

Krakow, 60 Krasmann, S., 137 Kusak, M., 60 Kwiecién, Brunon, 50 L

Labayle, H., 86 Labour demonstrators, 111, 116 Lacaze, M., 96 Landesbanki, 32 Law and Justice Party, see Poland Lazarus, L., 134 Lazerges, C., 134 Lea, J., 37, 134 Legal professional privilege, 57 Lennon, G., 110, 117, 119 Lethal force, see Policing powers Liberal Democrats (UK), 19, 30 Liberty, 19, 33, 34, 38 Lippert, R. K., 140 Lloyd, Lord, 17, 29 Loader, I., 130, 135, 138 London attacks, 81, 120 Parsons Green (2017), 32 7/7 bombings (2005), 19, 22, 39 M

Macron, Emmanuel, 87 Madrid bombings (2004), 80 Malaysia, 16 Manchester Arena attack (2017), 115 Mass surveillance, see Surveillance measures May, Theresa, MP, 26 McCulloch, J., 132

155

McNulty, Tony, 19 MICAS, 86 Middle East terrorism, 7 See also Jihadist terrorism Money laundering, 53–54 Murphy, C. C., 131 Muslim community, 30, 111 Muslim women, 95 N

NATO, 52 Neal, A., 140 Neoliberalism, 138, 139 Newton Committee, 30 New York attacks (9/11), see Twin Tower attacks NHS Trusts, 31 Ní Aoláin, Fionnuala, 133 Nice attacks (2016), 84 Normalisation, 4 French law, 93–97 Polish law, 62–64 ‘thought crime,’ 34 UK law, 19, 34–38 See also Procedural contagion Northern Irish conflict, 5, 7, 16–18 Norway, 132 Notification orders, 23 O

O’Donnell, A., 139 Oleksiewicz, I., 54–55 O’Malley, P., 139 Open justice, principle of, 37–38 Orban, Viktor, 120

156 Index

Organised crime, 5, 29 ‘contagion,’ 37 definition, 94 French legislation, 78, 80–81, 84, 93–95, 98, 99 polish legislation, 62–63 UK legislation, 38, 133–134 P

Palestine, 16 Paris climate Change Conference (2015), arrests during, 92 non-jury terrorism courts, 77 terrorist attacks, 60, 78, 82, 88, 92, 94 Charlie Hebdo (2015), 87–88, 95, 113 Path dependencies, 118 Penalisation, 3, 4 Penology, 10 Percy, S., 130 Pickering, S., 132 ‘Picklock,’ use of terrorism as, 5 French law, 87–90 Polish law, 58–61 UK law, 29–31 Poland, 2, 7, 8 Commissioner for Human Rights, 58, 60–62 communist rule, 50, 51 counter-terrorism law (see Polish counter-terrorism legislation) crime, growth of, 52 criminal code (see Polish criminal code) criminal justice system, 50–51, 55

Foreign Intelligence Agency, 56 immigration laws, 52, 56 Internal Security Agency (ABW), 56, 58, 61, 113 Law and Justice Party (PiS), 53, 57, 60, 65 law enforcement agencies, reorganisation of, 56 post-communist reforms, 51–52 prison population, 51 prosecutors, key role of, 51, 119 rule of law/separation of powers, 52 Soviet influences, 51 terrorist threat, 1–2, 8, 50 United States, relations with, 53 ‘war on terror,’ support for, 50, 53 Police transformations, 10 Policing powers, 79, 83–84, 90, 93, 95 ‘all-risks’ powers, 110–113, 120, 121 constitutional limits on, 6 extended detention periods (see Detention) France (see French counter-­ terrorism legislation) house arrests (see French counter-­ terrorism legislation) lethal force, 58, 63, 112 Poland (see Polish counter-­ terrorism legislation) search powers (see Search powers; Stop and search powers) surveillance (see Surveillance measures) UK, in (see UK counter-terrorism legislation) Policy trends, see Counter-terrorism policy

 Index 

Polish counter-terrorism legislation, 1–4, 7, 8, 52, 55–58, 112–115, 120, 121 administrative powers, enhancement of, 64, 113 contagion, forms of, 59–64 ‘blank cheque’ legislation, 61–63 normalisation, 63–64 ‘picklock,’ use of terrorism as a, 59–61 criminal code, changes to (see Polish criminal code) definition of terrorism, 54–55, 62–63, 115–117 ‘terrorist incidents,’ 58, 115–117 draconian powers, 58, 61, 64, 113 due process guarantee, weakening of, 52, 60 EAW procedure, use of (see European Arrest Warrant) emergency powers, 51, 55 EU legislation, impact of, 53–55, 119 financing of terrorism, 54 historical development, 50–52 human rights, and (see Human rights) immigration provisions, 56–57 intelligence measures (see Intelligence measures; Surveillance measures) legal professional privilege, dilution of, 57 ‘organised terrorist groups or association,’ participation in, 62–63 police custody extended detention, 57–58, 60, 63–64, 111–112

157

policing powers, 1–2, 55, 63–65 (see also Surveillance measures) lethal force, 58, 63, 112 post-9/11 measures (2001-2015), 52–58 post-2016 reforms, 57–64 punitiveness, and, 8 search powers, 58 surveillance powers (see Surveillance measures) UN measures, adoption of, 52–54 US influence, 53 Polish criminal code, 51–52, 64–65 amendments to, 51, 53–55, 58, 60, 62–64, 115, 116 criminal organisation, aggravated participation in, 62–63 illegally obtained evidence, admissibility of, 57, 60 Polish Parliament, 60 planned attack on (2012), 2, 50 Political activists, 111 Politics of fear, 5, 31, 131 Possession-based offences, 18 Precautionary approach, 110, 114–115, 133 ‘all-risks’ policing powers, 110–112 broadly drawn terrorist offences, 116–117 consensus on, 110–115, 117–120 discretionary powers, 111, 116, 117 human rights and, 135 mass surveillance, 110–113 ‘ordinary’ criminal law norms, deviation from, 110 See also Precursor offences; Preventive/pre-emptive approach

158 Index

Precursor offences, spread of, 111, 114–115, 121 Preparation offence, 34, 131 Preventive/pre-emptive approach, 110, 117 France in, 77, 78, 80, 82, 98, 114 shift towards, 110, 119, 121, 131–132 UK, in, 19, 23, 37 See also Precautionary approach Privacy rights, 31 Procedural contagion, 6–7, 35–37, 39 control orders, 35–37 See also Normalisation Promotion of terrorism, 81 Proscription, see ‘Blacklisting’ orders Prosecutions, 18–20, 34, 35, 115 Provocation offences, 25, 91, 92, 115 Punitiveness, 3, 4, 8 Punitive populism, 3 R

R. v. Gul (2013) UKSC 64, 116 R. v. Incedal and Rarmoul-Bouhadjar (2014), 38 Racial/religious hatred, offences of, 21, 30 Reaction-politics, 5 Reasonable belief/suspicion, 18, 30, 33, 35, 36 Recruitment for terrorism, 25, 81, 86, 120 Responsibilisation, 139 Roach, K., 18, 25, 117, 119, 121 Routledge Handbook on Law and Terrorism, 110

Royal Irish Academy, 133 Rudd, Amber, 31 Rule of law, 35, 52, 131 Rydzak, J., 64 S

Sarkozy, Nicolas, 120 Schengen Information System (SIS), 56 Search powers French law (see French counter-­ terrorism legislation) Polish law, 54 UK law, 24, 30 (see also Stop and search powers) Securitisation, 2, 3, 9, 38, 132, 134, 138, 140 drift towards, 3, 5, 6, 8, 10 hegemonic tendency, 4 human rights, and (see Human rights) procedural safeguards, dilution of, 6 punitiveness, links with, 3, 4, 8 Sentencing extended sentences, 23 harmonisation of EU States’ laws, 25 Separation of powers, 52 Serious Crime Prevention Orders (SCPOs), 37 Silence, right to adverse inferences, drawing of, 22 limiting of, 17 Simester, A., 34 Simon, J., 139 Snowden revelations, 88

 Index 

Social media, 34 Soviet Union, 50, 51 Special advocate procedure, 38, 132 Special Immigration Appeals Commission [UK], 38 Spurrier, M., 31 Stop and search powers [UK], 6, 17, 19, 30, 32–33, 38, 111, 112 anticipation of violence, in, 30 authority-to-carry schemes, 33 discriminatory application of, 32–33 Stuntz, W. J., 6 ‘Super inchoate’ offences, 33 Super-terrorism, 10, 134 Surveillance measures, 29 data collection and retention, 30–31, 111, 112 draconian powers, 58, 61 electronic surveillance, 110, 111 French legislation, 77, 78, 80, 82, 85, 88–89, 94, 96, 115 French prisons, 85 Internet surveillance, 88 mass surveillance, 110–113, 121 Polish law, 58 Polish legislation, 1–3, 57, 58, 60, 61, 63–64 private security agents, 85 sweeping powers, 113, 120 UK legislation, 29–31, 112 video surveillance, 85, 120 See also Intelligence measures Suspects, 111 Suspicion, see Reasonable belief/ suspicion Syrett, K., 19 Syria, 23, 26, 28, 78

159

T

Tax information, disclosure of, 21, 29, 30 Telecommunications data access and retention, 31, 39, 64, 113 disablement of, 64 Temporary exclusion orders (TEOs), 23, 36 Terrorism Prevention and Investigation Measures (TPIMs, UK), 19, 22, 23, 36–37, 114, 131 Thought crime, 34, 38, 120 Tomkins, A., 30 Torture, see CIA ‘black sites’ Transplantation, 4–5, 28 Travel restrictions French legislation, 114, 115 FTFs, measures against (see Foreign terrorist fighters) UK legislation, 23, 33, 118 Twin Tower attacks (New York 9/11), 9, 35, 131, 135 European responses, 3–5, 8, 24–28, 118 French responses, 78–86 UK responses, 16, 18–24, 29, 35 U

UK counter-terrorism legislation, 7, 16–26, 79, 115, 133–134 administrative detention, 29 administrative measures, 113, 114 anti-social behaviour orders, 30–34, 37, 120 civil law measures, 35–37

160 Index

UK counter-terrorism legislation (cont.) contagion, forms of, 28–38 ‘blank cheque’ powers, 19, 31–34 ‘normalisation,’ 19 ‘picklock,’ use of terrorism as a, 29–31 control orders, 35–38 (see also Control orders) criminalisation (see Criminalisation) criminal offences, 18, 21–22, 24, 115 attendance at place used for terrorist training, 22 dissemination of terrorist publications, 22, 115 glorification/encouraging of terrorism, 22, 33 information-seeking, 24, 34 possession-based offences, 18 preparation of terrorist acts, 22, 34, 115, 119 provocation, recruitment and training, 25 racial/religious hatred, 21, 30 refusal to supply information, 21, 29 ‘super inchoate’ offences, 33 current plans, 24, 34, 120 definition of terrorism, 17–18, 25, 116, 119 disclosure requirements, 21, 29–30 discretionary powers, 18, 34, 116 draconian restrictions, 23, 29 EAW procedure, use of (see European Arrest Warrant) emergency powers, 7, 16, 114 ETPIMs, 19

EU counter-terrorism law, impact of, 24–28, 118–119 ‘extremism,’ measures against, 23–24 financing of terrorism, measures against, 21, 28, 32 French legislation, and, 118–121 FTFs, restrictions on (see Foreign terrorist fighters (FTFs)) historical development, 16–19 human rights, and (see Human rights) ISIS activities, responses to, 23 ‘legislative war on terrorism,’ 35 non-terrorist crimes, application to, 6 notification orders, 23, 37 organised crime, 37, 133–134 police custody extended detention, 22, 38, 112 searches in, 30 policing powers, 22, 24, 29–30, 37–38 (see also Stop and search powers; Surveillance measures) post-charge questioning, 22, 37–38, 120 adverse inferences, drawing of, 22 post-9/11 responses, 5, 16, 18–24, 28, 35 prevention and investigation measures, 7, 19, 23, 120, 131 (see also Stop and search powers; Terrorism Prevention and Investigation Measures (TPIMs))

 Index 

proscription/black-listing orders, 17, 28 prosecutions, 18–20, 115 relocation, forced, 23, 36 search powers, 24, 30 (see also Stop and search powers) sentences, extension of, 23 Serious Crime Prevention Orders (SCPOs), 37 ‘Snooper’s Charter,’ 30–31, 112 special advocate procedure, 38 state/public authorities, duties of, 24, 29 stop and search powers (see Stop and search powers) surveillance powers (see Surveillance measures) temporary exclusion orders (TEOs), 23, 36 travel restrictions, 23, 33, 118 UNSC resolutions, implementation of, 27–28 ‘untidiness’ of, 20 UN Conference on Climate Change (Paris, 2015), 92 UN Human Rights Committee, 117 Union Syndicale des Magistrats (USM), 90, 93 United Kingdom (UK), 3, 4, 7, 16 closed proceedings, 39 counter-terrorist measures (see UK counter-terrorism legislation) Criminal Procedure Code, 27 hate laws, 30 High Court, 31 Irish terrorism (see Northern Irish conflict) jihadist terrorism, 18–20

161

Muslim community, 30 political violence, 16, 17 special advocate procedure, 38 Supreme Court, 28, 116 terrorist attacks, 7, 32, 77, 81, 115 Twin Tower attacks, responses to, 18–24 United Nations, 33, 52, 54, 92 Special Rapporteur on Counter-­ Terrorism and Human Rights, 97, 133 See also UN Security Council United States 9/11 attacks (see Twin Tower attacks) CIA rendition and torture (see CIA ‘black’ sites) counter-terrorism law and policy, 3, 35, 132–133 Poland, relationship with, 53 ‘punitive populism,’ 3 UN Security Council, 3, 27–28, 82, 86, 117, 118, 121, 137 FTFs, resolution on (see Foreign terrorist fighters) V

van Munster, R., 131, 133 Vehicle searches, see French counter-­ terrorism legislation Venice Commission, 64 W

Waddington, Lord, 30 Walker, C., 19, 39, 110, 111, 117, 119, 134 War on terror, 50, 53, 130, 131, 133

162 Index

Wasek, A., 51, 52 Websites blocking of, 64, 82, 113 radicalisation and recruitment online French-British Action Plan, 120 regular consultation of, 84, 85, 91

Weil, S., 113 Whitman, J. Q., 133 Z

Zedner, L., 35, 36, 38, 110, 130–132, 136