Conversations on Criminal Justice - Andrew Hall QC on Terrorism, Liberty, and the Rule of Law in UK Criminal Litigation

Andrew anchored the conversation with reference to the pivotal 7 July 2005 London underground bombing and the 9 September 2001 attacks in America.  These generation-defining events had not only ramifications for daily social life, but importantly redefined the political and legal landscape in the UK.  The events of 7/7 and 9/11 posed extraordinary threats to Britons’ and Americans’ security in everyday life, and many people considered them assaults on Western liberal democratic values. Indeed, the events were received through a very political lens.  In the wake of 9/11, Tony Blair famously stated “the rules of the game have changed.”  In America, politicians spoke of a “global war on terror.”  The extraordinary threat of terrorism, politicians maintained, necessitated extraordinary measures to meet that threat. 

Andrew juxtaposed measures taken in American legal systems with those proposed in UK law.  Under American political authority, individuals were sometimes detained, interrogated, tried and executed in response to terrorism concerns without receiving due process or other fundamental human rights.  The Geneva Convention was thwarted, as individuals were treated not as prisoners of war but terrorists.  In some cases, torture and cruel and unusual interrogation techniques were employed.  Some individuals were detained without charge or trial—sometimes indefinitely.  In short, after 7/7 and 9/11, the legal landscape was re-defined so that when the label “terrorist” was invoked, the rule of law and fundamental human rights were completely abandoned, with a subsequent loss of moral authority.

In the UK, political leaders discussed similarly altering commitments to due process and the rule of law in terrorism cases.  Andrew recounted legislation proposed throughout the early 2000s, aimed at extending pretrial detention (in some cases rendering it indefinite), introducing “secret evidence” and other measures that would prevent key disclosures to the defense, and imposing harsh detention orders for foreign national defendants or draconian control orders for citizens. Most of these proposals were eventually defeated in Parliament or by the House of Lords; due process and the rule of law were thus not transformed as considerably as in American jurisprudence.  However, the motivations and justifications for abandoning key principles of human rights were the same: in the terrorism context, rights that had previously been regarded as “universal” and “fundamental” could be abridged and suspended.  “Most disturbing of all,” Andrew maintained, is that jurisdictions like the US and UK, both created a “legal excuse to suppress eternal and internal dissent by applying the label ‘terrorist.’”

The UK’s definition of the terrorist label is itself incredibly broad, far exceeding that in operation in any other Western democracy and thus opening up many more actions to criminal prosecution. Andrew argued that it is impossible for an individual to ascertain whether their actions were legal or illegal—a clear contravention of conventional formulations of the rule of law, as was argued in Purdy v DPP. Executive discretion and political whim take a central role in determining a criminal act from a lawful one, distinctions of which frequently fail to align with public notions of what “terrorism” is and which may only be scrutinised by Parliament rather than being argued in the courts. Andrew cited the specific example of the Burke brothers, who went to Syria to fight for the American-funded, British-supported Kurdish militia against the so-called Islamic State; they were subsequently tried for terrorism offences, despite police assurances that “no one will treat you like a terrorist.” This militia, the YPG, was not a banned organisation, and their politics and morals largely aligned with the British state. However, the subsidiary purpose of the organisation was to found a democratic Kurdish state – an “ideological pursuit”. Because they used violence against the Islamic State to further this aim, they could thus be considered terrorists. Prosecution could therefore be pursued for what Andrew referred to as “nakedly political purposes”—he suggested that perhaps the UK government was trying to appease Turkey in the interests of a post-Brexit trade deal. 

Furthermore, the UK has seen a slow expansion of terrorist offences in the form of “mission creep,” as precursor offences became more common and broader in scope.  Andrew explained that looking at a knife online and conversing with a friend about “revenge” was sufficient for one young man to be sentenced to twenty-three years in prison. An increasing number of actions are viewed as “preparatory,” such that an apparent formation of a future intention was sometimes substituted for actual intent or malice. 

However, Andrew maintained, recent terrorism cases—including those with which he has been involved as counsel—demonstrate that adhering to fundamental human rights principles, due process, and the rule of law, does not threaten the justice of the verdict, robustness of the process, or even the ability for the prosecution to secure convictions.  Drawing on his experience representing defendants accused of terrorist activities in recent years, Andrew pointed to multiple examples of individuals being tried in the “normal way,” complying with human rights standards of procedure and evidence, and who were subsequently convicted. Such cases represent a vindication of human rights jurisprudence, testament to due process, and the recognition of terrorist acts as inherently criminal acts which ought to be punished by ordinary criminal processes—as would be applied to any other offence. 

It was Andrew’s argument that the terrorist who is not given a fair trial has won; they have succeeded in undermining the jurisprudential and democratic framework and foundations of the modern liberal democratic state.  In closing, Andrew warned that threats to due process and the rule of law in the terrorism context persist in the UK.  This “is no mere academic concern...the creep of terrorism legislation continues.”  What is needed now, particularly if we intend to safeguard our liberal, democratic values, is a recommitment to human rights, due process and the rule of law, particularly in moments of political and social crisis.  

We would like to thank Andrew for his time and thoughts.