The Impact of Contemporary Security Agendas Against Terrorism on the Substantive Criminal Law
Masferrer, A. (ed.), Post 9/11 and the State of Permanent Legal Emergency (Springer, Dordrecht. 2012) pp.121-152
Posted: 5 Jul 2012
Date Written: 2012
This paper will explore three questions regarding how the substantive criminal law has been impacted upon by terrorism. The first concerns the appropriate overall role to be served by the criminal law in regard to counter-terrorism as compared to other potentially coercive exercises of state power, such as executive (Ministerial) measures. The second and third questions relate to the modes of application of the criminal law within counter-terrorism and, closely related, how far criminal law may be altered from its ‘norm’ or paradigm format in the pursuit of those functions and yet retain sufficient recognisable characteristics essential for legitimacy. Six functions are identified. First, criminal law can allow for prescient intervention before a terrorist crime is completed. Second, there can be net-widening, so that peripheral suspects can be neutralised. Third, criminal law can instil a lowest common denominator of rights and so reduce obstructive 'technicalities'. Fourth, the criminal law can be used to mobilise the population against terrorism – to force them to assist in counter-terrorism work. Fifth, the criminal law can serve a denunciatory function. Sixth, the criminal law can bolster symbolic solidarity with the state’s own citizens and with the international community. The overall thesis adopted for the purposes of this paper is that the challenge of terrorism can be the trigger for a variety of rational and effective legal responses within criminal justice and that not all 'special' laws must invariably be viewed as illegitimate. Criminal justice solutions to counter-terrorism are worthwhile and should be prioritised, but they are not all without costs to the values of criminal justice. Therefore, the state should not assume that a criminal justice preference in counter-terrorism represents an unquestionable victory for societal values.
Keywords: Terrorism, criminal law, criminal justice
JEL Classification: K19, K42, N40
Suggested Citation: Suggested Citation