Counter-terrorism, Constitutionalism and Miscarriages of Justice: A Festschrift for Professor Clive Walker

Description

The purpose of this book is to honour the influential and wide-ranging work of Professor Clive Walker. It explores Professor Walker’s influence from three perspectives. Firstly, it provides a historical reflection upon the development of the law and policy in relation to counter-terrorism and miscarriages of justice since the 1970s. This historical perspective, which is often overlooked, is particularly timely 17 years after 9/11 as trends become clearer and historical perspective even more valuable. So too with miscarriages of justice: while there was considerable public and political scrutiny following high-profile miscarriages such as the Birmingham Six, Guildford Four, and others, in the early 1990s, today there is much less scrutiny, despite significant concern relating to issues such as legal aid and access to justice increasing the potential (if not likelihood) for miscarriages to occur. By including a critical historical perspective, this book enables us to learn lessons from the past and to minimise contemporary risks of miscarriages of justice. Secondly, this book provides a critical analysis of the law and policy as it stands today, and its future trajectory. Applying Walker’s theoretical and analytical contributions to the field, the authors focus on pressing contemporary concerns, identifying lacunae where relevant, as well as the possible, probable and preferable future trends. Finally, the book celebrates and recognises the significant contributions by Walker, with each chapter built around one or more of Walker’s key works. Foreword: A Tribute to Clive Walker Table of contents List of Contributors 1. Introduction PART I:
COUNTER-TERRORISM 2. The Constitutional Governance of Counter-Terrorism Introduction I. The Status Quo II. How Constitutions Might Reduce Terrorism III. The Accountability of Security Services and Law Enforcement Bodies IV. The Constitutional Protection of Fundamental Rights Conclusion 3. Beyond the Ordinary: Criminal Law and Terrorism Introduction I. Selected Criminal Law Norms II. The Early Prevention of Terrorism Offences III. Current Body of Terrorist Offences Conclusion 4. Terrorism and Counter-Terrorism in the UK: From Northern Irish Troubles to Global Islamist Jihad Introduction I. Contexts and Origins II. Troubles-Based and UK-Jihadi Terrorism III. UK Domestic Counter-Terrorism: 1970-2017 Conclusion 5. Strategies for Countering Terrorism: An Australian Perspective Introduction I. From 9/11 to Foreign Fighters II. Australia’s Counter-Terrorism Strategy Conclusion 6. Shades of Independent Review Introduction I. 2014: Half-Time Reflections II. Changes to the Powers and Functioning of the IRTL III. Second Term: Annual Reviews IV. Second Term: One-Off Reviews V. Postscript: Intelligence Handling VI. Full Time 7. The Use of Special Advocates in Countering Terrorism: Human Rights, Best Practice and Procedural Tradition Introduction I. Special Advocates as Creatures of Human Rights II. From International Human Rights Law to Transnational Best Practice III. Putting Special Advocates in their Procedural Place Appendix I 8. Lawyers, Military Commissions and the Rule of Law in Democratic States Introduction I. International Standards and the Right of Access II. Military Courts, Lawyers and the Rule of Law III. The Impulse to Extraordinary Due Process Explained IV. A Case Study of Defence Lawyering in Extremis: Military Defence, Lawyers and the Expeditionary Legal Complex at Guantanamo Bay Conclusion Appendix I 9. Excluding Terrorists Introduction I. Exclusion Orders II. Contemporary Exclusion Powers III. Critiquing Contemporary Exclusion Powers IV. Potential Future Trajectories 10. Speaking of Terrorism and Terrorist Speech: Defining the Limits of Terrorist Speech Offences Introduction I. Conceptualising Terrorist Speech Offences II. Categorising and Evaluating Terrorist Speech Offences in Germany, Spain and the UK III. Distinguishing Speaking of Terrorism and Terrorist Speech IV. Outlook 11. All-Risks Counter-Terrorist Policing Introduction I. The Costs of All-Risks Policing II. The Containment of All-Risks Policing III. The Practice of All-Risks Policing Conclusion PART II: MISCARRIAGES OF JUSTICE 12. Defining Miscarriages of Justice in the Context of Post-9/11 Counter-Terrorism Introduction I. What is a Miscarriage of Justice and Why it Matters II. Criminal Terrorism Convictions and Miscarriages of Justice III. Non-Criminal Interventions and Miscarriages of Justice Conclusion 13. The Doctrine of Public Interest Immunity and Fair Trial Guarantees Introduction I. The Evolution of PII: Law and Practice II. PII and the ECHR III. PII: The Current Position in England, Wales and Northern Ireland IV. The Procedural Position V. Reflections, Vulnerabilities and Future Challenges 14. The Forensic Science Paradox Introduction I. The Forensic Science Paradox II. Is Forensic Science Iatrogenic? III. Remedies: Treating Symptoms Not Causes? IV. Forensic Science and Miscarriages of Justice Conclusion 15. Post-Conviction Review in England and Wales: Perpetuating and Rectifying Miscarriages of Justice Introduction I. Constructing Miscarriages of Justice in the Court of Appeal II. Defining Rights and Fairness in the Court of Appeal III. The Criminal Cases Review Commission IV. Evaluating Performance Conclusion 16. Justice Denied? Compensation for Miscarriages of Justice Introduction I. Determining Eligibility for Compensation II. Purpose of Compensation III. Developments in Compensation IV. Populist Punitivism and Compensation Conclusion 17. Revisiting Miscarriages of Justice: Innocence Projects, Review Commissions and Expert Evidence Introduction I. Defining Miscarriages of Justice II. The ‘Innocence Movement’ III. The CCRC as an Option for Canada? IV. Flawed Forensic Science and Problematic Expert Testimony Conclusion PART III: A RETROSPECTIVE 18. Living with Counter-Terrorism Laws and their Discontents Making Choices in the Life of Counter-Terrorism Laws I. The Living Proof II. The Discontents Conclusion INDEX