The new criminal justice: anti-terrorist legislation

Just prior to the passing of the new UK Prevention of Terrorism Act 2005 George Churchill-Coleman, who was head of Scotland Yard's anti-terrorist squad during the IRA campaigns of the late 1980s and early 1990s, said, in an interview with the Guardian," I have a horrible feeling that we are sinking into a police state, and that's not good for anybody. We live in a democracy and we should police on those standards." (Alan Travis, Clare Dyer and Michael White (2005) Britain 'sliding into police state' The Guardian Friday January 28, 2005). He went on to directly criticise the measures which were embodied in the legislation: "I have serious worries and concerns about these ideas on both ethical and practical terms. You cannot lock people up just because someone says they are terrorists. Internment didn't work in Northern Ireland, it won't work now. You need evidence." The implication is that the new mechanisms for house arrest and other restrictions contained in the legislation will alienate the Muslim communities in Britain in the same way that internment without trial in Northern Ireland alienated the nationalist communities. In a similar vein another state official, Craig Murray, resigned as British ambassador to Uzbekistan. He said "I've seen the 'war on terror' from the inside and I think it's completely perverting Britain. I discovered this country did not stand for the things I rather foolishly believed it did." (Murray 2005)

The Prevention of Terrorism Act in widely seen as involving a departure from fundamental British traditions of civil liberties and due process. The Act enables the Home Secretary, a politician, to deprive individuals of their liberty by issuing control orders. A control order can impose restrictions ranging from house arrest, to various restrictions on travel, residence, and access to communications and services. Furthermore the Home Secretary can do this on the basis of 'reasonable suspicion' that the individual concerned in involved in terrorist-related activities. Control orders come in two types. The strictest is house arrest. This is known as a derogating control order because the Home Secretary has to suspend the operation of the Human Rights Act 1996 (which incorporated the European Union convention on human rights into English law) on the grounds of national emergency (as is, in fact, currently the case) in order to do it. The second type of control order (non derogating) is a sort of political version of an Anti-Social Behaviour Order or 'ASBO' (I shall discuss these in some detail later). These cannot impose house arrest but they can stipulate all manner of restrictions on personal rights. These include the restriction on possession of specified articles such as a mobile phone; having access to specified services which would include the internet; living in certain places and who can visit you. There is also requirement to allow 'specified persons' into your residence (i.e. the police can visit at any time to search your residence) and also restrictions on travel. These restrictions don't, in fact, fall very far short of house arrest.

The objections to the Prevention of Terrorism Act run very deep and are certainly not restricted to liberals and the left. Many conservatives are also disturbed at what they see as a profound departure from our traditions of civil liberties and due process. The main objections can be summarised as follows:

1. A right has been conferred on a politician powers that, since Magna Carta in 1215 have been restricted to courts of law namely, the right to deprive individuals of their liberty.

2. Control Orders can be imposed without any semblance of a trial. The Home Secretary can put you under restrictions on the basis of evidence you are not allowed to see and therefore cannot challenge in court. The 'evidence' may be from the Security Services (the same people who told us that Saddam had weapons of mass destruction). Such evidence also may have been acquired by means of torture. It is a cardinal principle of criminal procedure in Britain that no evidence obtained by coercion is admissible in court. But, as we shall see presently, evidence obtained by such means outside this country may come into the possession of the security services and be used as part of the justification for the issuing of a control order. But coercion aside, the individual on whom the order is imposed may not see the evidence, may not be represented, and certainly cannot therefore make a challenge. Another fundamental principle which underlies our adversarial criminal justice system, the right to confront your accuser in open court, is therefore denied.

3. Control Orders are open-ended. They can be renewed and can come to constitute a permanent regime of restriction with the individual ever having the right to a proper court trial in front of a judge and jury. Most jurisdictions have facilities for putting people in custody (refusing bail) while police investigations are taking place. In some jurisdictions in Continental Europe an investigating judge can lock you up for two years pending trial. But even in this draconian system there are two provisos that involve some recognisable notion of civil liberties: first it is a judge and not a politician who can do this. Secondly, the judge must be satisfied that the police are working towards the preparation of a criminal case which will result in a court trial leading to either conviction or acquittal. While in England the notion of putting people in custody for two years while a case is prepared would be regarded as illegitimate, it is not fundamentally different from being remanded in custody. Here you must be charged, and evidence presented before a court and the prosecution must make a case for keeping you in custody (e.g. that you might do disappear, or interfere with the evidence. The court must consider if this danger overweighs the disadvantage which follows from custody in hampering your ability to prepare your own defence. Eventually, within a reasonable period of time, you must be brought to trial even though quite possibly the charges will have changed. But in the meantime the court knows where you are and your lawyers can, in extremis, apply for a writ of Habeas Corpus. But the control order can apparently be renewed indefinitely. You may never be charged and brought to court for a criminal offence.

4. The standard of proof is not that required in a criminal trial. There are two key standards of proof in English law. As I shall be referring to them in other contexts I will spell them out here. The highest is known as 'beyond reasonable doubt.' This is the standard to which evidence must convict you in a criminal court. The principle is that if you are going to be sent to prison or have your liberty restricted by a criminal conviction then your criminality must have been established to this high standard. The second standard is much lower and is known as 'the balance of probabilities', That is to say that when all things are considered it is probable that you committed the act or actions in question. This lower standard of proof is used in the civil courts. In cases of libel for example, the court only has to satisfy itself that on the balance of probabilities you committed libel. Since you are not going to be sent to prison but have monetary damages awarded against you this lower standard is regarded as sufficient. There is a third principle, which is not really a standard of proof at all but more a legitimation for action, known as reasonable suspicion. It is, for example the legitimate basis on which you could be stopped and searched by a police officer. And of course if you are stopped you may, but not necessarily, be charged with a criminal offence. There are many concerns about what constitutes reasonable suspicion. For example that it might be influenced by all manner of ethnic prejudices. The debate about 'stop and search' remains controversial and I have no time to go into it here.

5. The role of the Judiciary is reduced to one basically of oversight and review. Largely thanks to the entrenched opposition in Parliament, in particular in the House of Lords, to the early formulations of the Bill, the Judges are given a role but it is nothing approaching that in which a minister such as the Home Secretary, to obtain a control order, would have to present evidence to a court and the court would decide whether such and order be granted. The procedures which now obtain differ between derogating and non-derogating control orders. In the case of the former the application for the order does have to take place in front of a Judge. But the important point concerns the nature of proof. The fact that the hearing will take place in front of a Judge simply drags the judiciary into the vortex of collapsing due process because the standard of proof is such that the initial application by the minister only has to show that there are "reasonable grounds for believing" it is necessary. Then later there can be a full hearing where the standard of proof will be the 'balance of probabilities' but again not the criminal standard of proof that would be required in a trial. Yet in these extreme versions of control orders you might expect that they would be applied for because the authorities had some evidence sufficient to put you on trial. Non-derogating orders can be issued by the Home Secretary on his own. And the standard of evidence required is simply that of "reasonable grounds for suspecting" some sort of unspecified involvement in terrorist activities. It is true that a Judge can review the grounds for such an order, but again the hands of the Judge are tied. His or her only role is that of simply inspecting whether the suspicions meet the requirements of the Act. This is simply a form of judicial review. It is quite different from a court hearing in which the Judge sees all the evidence and makes the decision.

The new criminal justice: organised crime

It might be argued that terrorism is a special case in the current world situation and one that requires special measures. But there is at least one other species of 'powerful offenders' in the pursuit of which special measures have been argued for and passed into legislation. Thus if we look at the area of organised crime we can see similar dynamics at work. Obviously, terrorism and organised crime groups overlap in all sorts of ways. Organised crime may help fund terrorism by smuggling arms and resources, arms may be exchanged for drugs and so on. Also both groups will be interested in money-laundering facilities. So we shouldn't be surprised by the linkages. But what is clear is that similar compromises on civil liberties and due process are being demanded in the name of dealing with 'powerful international organised crime groups.'

Less noticed and publicly debated than the 2005 Prevention of Terrorism Act, the Proceeds of Crime Act 2002 contained in many ways equally fundamental compromises with traditional conceptions of due process. Two in particular have attracted some criticism. Firstly, the state has acquired the right to seize assets which it reckons are, on the balance of probabilities, the proceeds of crime, even if an associated criminal prosecution has resulted in an acquittal. It might be thought that the failure of a criminal prosecution might be a persuasion that, on the balance of probabilities your assets were not the proceeds of crime. These provisions of the Act both reverse the balance of proof and at the same time lower it. The provisions in the Act for the confiscation of assets mean that your money and assets can be seized if, the authorities suspect that it is the proceeds of crime and that you cannot demonstrate otherwise to them. What we see here is a change to our legal system which is just as severe as the provisions contained in the terrorism legislation.

It should be noticed that these principles go back to the drugs legislation of the mid 1990s. Thus the Proceeds of Crime Act 1995 is the assumption that once a criminal conviction is secured for a drugs trafficking offence then the court is entitled to assume, on the civil standard of the balance of probabilities that all assets acquired, or expenditures and transfers made, by the offender during the previous six years are proceeds of drug trafficking. The 2002 Act (Section 75) widens out drugs trafficking into a more general concept of criminal lifestyle. If the offender can be shown to have such a lifestyle then all assets, acquired over the previous 6 years are assumed to be proceeds of general criminal conduct and liable to confiscation. The burden of proof is on the defendant to show the converse. A criminal lifestyle is something easily acquired by having committed previous offences from which the defendant has benefited. There is an immediate issue here of the bearing of previous convictions on present culpability. Indeed the government has allowed previous convictions to be put before the court in certain other types of cases. Critics would say this is an important inroad into due process.

But more generally, something quite important is happening here. Knowing that someone has previous convictions and a criminal lifestyle, and is therefore likely to be making money out of crime, might be thought a legitimate component of detectives' knowledge of the particular criminal underworld with they are concerned. Such knowledge would function as an important factor in focusing further enquiries, surveillance and targeting of suspects with the aim of linking assets with particular crimes as a component of the evidence which secures a conviction to the criminal standard of proof. Now, it seems, the detectives' hunch is sufficient and it is for the defendant to disprove it. Likewise with asset confiscation. If someone cannot give a plausible account of the origin of their assets then this might convince the investigators that they are on to something and spur them on to probe more deeply until they come up with enough evidence to secure a criminal conviction. With civil recovery this is no longer necessary. The detective's hunch is sufficient. It can be argued that on the balance of probabilities the assets are the proceeds of crime because there is no other acceptable explanation, at this point in time, of their legitimate origin. It is then up to the defendant, irrespective of conviction in the criminal court, to do the work and demonstrate the legitimate origin of the assets.

One thing that both anti-terrorist and asset confiscation legislation discussed above have in common is that they can be seen as responses to a perceived difficulty facing the law enforcement agencies in obtaining information about these varieties of criminality. Terrorism and organised crime might be considered as epitomising the emergence of very powerful offenders, able both to take advantage of many aspects of the modern globalised to conceal their activities, and to coerce or mobilise the populations they move among to place a 'wall of silence' in front of law enforcement investigators. It is this, it might be argued, that is forcing criminal justice systems, in particular the Anglo-Saxon adversarial systems, to compromise on notions of due process and civil liberties. Indeed one could go further and say that the type of criminal offenders that can actually be convicted in the courts to the standard of beyond reasonable doubt are precisely those offenders who are fairly weak-they don't have many resources for hiding their crimes, and neither can they coerce other members of the public from giving evidence to the police.

Reversing the direction and lowering the standard of proof is one way of compensating for reduced flow, and reduced quality, of information on the basis of which the state authorities can restrict the liberty of individuals considered associated with criminal activities is one side of the coin. The other is to take steps to increase the sources and flow of information. In the next section I will consider two developments, the first associated exclusively with terrorism and the second applying to both terrorism and organised crime.

Globalised information extraction: from Guantánamo to 'rendition'

One way, and inevitably a strategy that seems to come naturally to the minds of law enforcement and security agencies, is to increase the level of coercion on people perceived to have information of use to these agencies. Since 9/11 the United States has taken significant steps in the formation of a new type of globalised system of coercive information extraction. The analogy is with the transnational business corporation (TNC) which can operate on a global scale so as, for example, to minimise wage costs by outsourcing its labour intensive production lines to third world countries with tax free export zones or brutal military dictatorships that suppress trade unions and workers rights. Naomi Klein (2000) has written about some of these issues.

It is clear that the current US administration is doing something very similar with its apparatus for the interrogation of suspects in the war on terror. The first stage was the use of the US controlled territory in Guantánamo, Cuba to establish a major interrogation facility. Individuals either captured by or handed over to US forces, mainly in Afghanistan were transferred to this facility. The living conditions of these detainees, the denial by the US government that they were entitled to the rights accorded to prisoners of war by the Geneva conventions, and the forms of interrogation deployed, became a scandal which echoed around the world. The original usefulness of Guantánamo was that it was outside US jurisdiction so the US courts civil rights lawyers were unable to intervene. Neither should it be thought that what took place at Guantánamo was a purely US matter. Some of the detainees were British citizens who have recently, after considerable delay and after what might be considered timid representations by the British government to the US, have been returned to the UK. They have testified that during period of their detention they were interviewed by British security service (MI6) officers.

But it is clear that this period has come to a close and Guantánamo has now lost most of its usefulness as a coercive information extraction regime. A significant development is that the US courts have been able to intervene in Guantánamo. Last July (2004) the US Supreme Court ruled that the federal court in Washington had jurisdiction to hear a case that would decide if the Guantánamo detentions were in violation of the US constitution. The argument of the Supreme Court was to the effect that, although outside the US, Guantánamo was under the sole control of US authorities and therefore was de facto US territory. Furthermore the 'military commissions' set up to try those detainees who were actually to be charged with terrorist-related offences were also in disarray. The US National Association of Criminal Defence Lawyers described the commissions as unethical. In January this year (2005) a federal judge ruled them illegal.

So the US solution has been to go even more global by outsourcing, known as 'rendition', to a network of countries with authoritarian political regimes and US military bases in states occupied by or friendly to the US. An example is Bagram air base in Afghanistan. Two British journalists recently described Afghanistan as "an enormous US jail" and linked to others such that prisoners are being shuttled to all sorts of destinations: "dozens of facilities in Pakistan, Uzbekistan, Jordan, Egypt, Thailand, Malaysia, Indonesia and the British island of Diego Garcia in the southern Indian Ocean. Those detained are held incommunicado, without charge or trial, and frequently shuttled between jails in covert air transports, giving rise to the recently coined US military expression 'ghost detainees'." (Levy and Scott-Clark 2005) There are now possibly up to 10,000 ghost detainees in this new global system of incarceration and interrogation and permanent detention without trial. People are disappearing, literally, without a hint of due process, and being 'rendered' around the world under US supervision. Who these individuals are, why they are taken, where they are taken, to what type of interrogation regimes they are subject, is difficult to discover.

Again, it might be thought that rendering is something specific to the US. But, as with Guantánamo, the UK is not entirely uninvolved. It is a cardinal principle of criminal justice in this country that evidence extracted under coercion is inadmissible in court. However, as we have noted, the imposition of control orders does not represent anything resembling the procedures of a criminal court. Some of the evidence on the basis of which the government forms its 'reasonable suspicion' concerning the activities of individuals may come from the security services. They, in turn may acquire it from the US. In short, evidence extracted by coercive interrogation may find itself into the working of the new British anti-terror regime. This type of interchange of information was, indeed, one of the reasons why Craig Murray resigned as British Ambassador to Uzbekistan. He said "I left the foreign office over the issue of MI6 allowing the use of intelligence obtained during torture. They take torture intelligence coming out of Uzbekistan and pass it on to the CIA." (Murray 2005)

So we now have the machinery of a new, postmodern, globalised warfare in place. On the one hand Al Quaeda, a new type of loose global terrorist network blurring the old boundaries between crime within the state and warfare between states, combatants without a state rather than an old fashioned national liberation army. Meanwhile on the other side a new globalised network of torture, interrogation and incarceration camps outside the nation state and its laws, categories and jurisprudence. What the US has shown is that the authoritarian state is as old fashioned like the purely national business corporation. The real 'dirty-work' (intensive labour and intensive interrogation) can be globally outsourced. Such activity is of course similar to that of organised crime which also uses global networks to escape the criminal justice system. The US simply ignores frontiers by virtue of force and ignores the criminal justice systems, due process and human rights which still dominate within nation states and, until recently, was a growing force in the relations between states.

There are other aspects of this outsourcing which I don't have time to go into here: the occupation of Iraq has, for example, highlighted the role of private subcontractors for military and security services and even interrogation of detainees. This became clear as the chain of command for the torture and prisoner abuse at Abu Graib prison and elsewhere was revealed. But before I turn to some of the problems raised by these developments there is a third development that must be noted.

The responsibilisation of citizens

The opposite side of the coin of the extension of (coercive) state activities beyond the boundaries of the nation state, is the extension of the functions of the security system into civil society itself through the increasing legal obligation on ordinary citizens to act as information sources for the police and security services. Recent legislation in both the UK and the US makes it a criminal offence not to act in such a way. Thus the 2001 Anti-Terrorism, Crime and Security Act makes it an offence to fail to disclose information to the police as soon as is reasonably practical, that would be of material assistance in preventing or leading to the arrest of persons engaged in the commission or instigation of an act of terrorism as defined in the 2000 Terrorism Act. The provisions of this legislation, as I shall note below, are sufficiently wide to include such activities as the disruption of trials of GM crops by environmentalists who would not, in the normal parlance, be thought of as terrorists even though prepared to take direct action. Also some of the activities of animal liberation groups may fall under the definition. The result is that if an individual knows that such protest groups are planning actions which involve, for example, serious damage to property, there could be a legal obligation, on pain of criminal prosecution, to inform the authorities.

Besides those who have information about actual or potential terrorist activities there may be those who, precisely because of its political nature, may give covert support even taking the form of simply agreement. They might be compared to the customers of organised crime who buy pornography or drugs and do not perceive themselves as guilty of anything more than a technical illegality. The present UK government intends further legislation if re-elected in May 2005. The Labour election manifesto contains clauses promising criminal trials against those who are "involved in helping to plan terrorist activity or who glorify or condone acts of terror." One awaits with some sense of apprehension the precise working out into legislative proposals of these sentiments. It is clear that they will inevitably result in the widening of notions of criminal conspiracy. But the avowed intention to criminalise those who may condone the use of terrorism will undoubtedly give rise to concern.

As regards organised crime, as part of the struggle against money laundering, legislation since the 1980s has continuously widened the responsibilities of a variety of financial and legal institutions (including banks, estate agents, conveyancing solicitors, accountants) to report 'suspicious transactions.' The 2002 Proceeds of Crime Act now applies criminal sanction to such activities making a failure to disclose information about money laundering a criminal offence if the person concerned has 'reasonable grounds' (that phrase again) for knowing or suspecting that such activity is occurring. Such a duty, and the threat underlying it, may well be seen as an unacceptable compromise of civil liberties particularly where the task in hand, identification of suspicious activity in relation to money laundering, is beyond the normally required skills of the employee even in a bank. In a similar to terrorism way there are moves currently underway to consider widening the concept of conspiracy as regards participation in organised crime. (see Lea 2004)

The rationalisations for authoritarianism

At this point the following response might be made. Okay, these are draconian measures and we certainly don't condone torture if that is what is actually going on. Furthermore it's true that a lot of innocent people may get caught up in these mechanisms but with a bit of luck we will also get the ones who are intent on major disruption. It's a price we have to pay. We cannot afford the risk of another 9/11 even if it does mean compromising on civil liberties. Meanwhile the economic and social damage inflicted by powerful organised crime syndicates requires similarly draconian compromises on traditional ideas of due process and the burden of criminal proof.

In the case of terrorism, we are fighting, it can be argued, a new kind of war; one which blurs the old boundaries between war and crime. In the old days we had crime which was largely weak offenders whose civil rights could be respected and wars which were between powerful armies of recognised states. There were clear rules of war, treatment of prisoners governed by the Geneva Convention etc. Nevertheless there were all manner of spies and fifth columns at work and so fairly heavy restrictions on civil liberties. During World War II we had the Defence of the Realm Act and Order 18b under which all sorts of people were interned without trial. But the war was of a fixed duration. There was no doubt when we were at war and when we were not at war. Liberal democracy and civil liberties could therefore survive. We could suspend them for a fixed, clear period, and when Germany surrendered, the wartime restrictions were revoked and we returned to normal.

But now we face an entirely new situation. The new terrorism is warfare conducted against us by irregulars who are not the armies of a state, who do not wear uniforms and clearly indicate their intention to fight. They use any clandestine infiltration methods at their disposal and their target is civilian populations. They have to be prevented: stopped before they act rather than brought to justice after they have committed crime and there is plenty of evidence of what they have done. Therefore we reluctantly need a permanent version of Order 18b because we don't know who is the enemy and who isn't. The war is conducted within the very sinews of civil society itself. Thus permanent compromises on civil liberties are essential for this purpose. But they needn't infect anything else. They will be strictly used in the hunt for terrorists only. If you're innocent you've nothing to fear.

The danger, it might be further argued, is reflected in the fact that traditional intelligence methods have been revealed as disastrously weak. The mistakes made by the US and UK intelligences services in particular in providing valid intelligence on the existence of Iraq's nuclear weapons programme, and the use of totally unreliable individuals as sources, is well known (see Helmore 2005). It can therefore be argued that the premium on getting information from coercive interrogation is at an all time high. Global network terrorist structures are not amenable to penetration by traditional espionage methods which were deployed during the Cold War period by the superpowers and their allies.

In the case of organised crime, we are dealing with, it can be argued, a new kind of criminality; one which is more powerful and elusive often than the state. In traditional organised crime, the old gangs like the Krays, or the Chicago Mafia, the police knew who they were, it was difficult but not impossible to get evidence against them especially from a supergrass. You just had to wait for them to fall out with some of their associates. This has been replaced by a new highly mobile, flexible organised crime system which in particular can make use global electronic networks to make its activities and the profits that derive from them very difficult to trace. Its membership is less known and more fluid. The old standards of evidence would require exhaustive investigation which would take too long and they would have silted away the proceeds of their evil deeds long before the detectives came knocking at the door. We have to give the law enforcement agencies new powers and shift the burden of proof to the suspect. These are, after all, no more powers than the Inland Revenue has and certainly won't apply to 'ordinary crime'. If you're innocent you've nothing to fear.

There are several responses to these arguments and I don't have time to talk about all of them. There is some complex argument to be had about whether indeed they are technically necessary. Other European countries seem to be quite successful at catching terrorists without the sort of draconian legislation being enacted here and in the US. In December 2003 the 'Newton Committee' (a committee of the Privy Council) which criticised the 2001 Act and made recommendations concerning making it easier to prosecute terrorist suspects through due process of law. But there is no mention of them in the 2005 Act. The most important recommendation was that the ban on the use of telephone intercepts as evidence in court be lifted (as it is in most other jurisdictions). This has also been raised in connection with organised crime as an alternative to widening the notion of conspiracy as regards organised crime networks. The objection made by UK government sources is that in an adversarial trial system the defence would be able to examine too closely the source of such material and thereby compromise the methods of work of the police and security services! But the question never answered is that how come the US law enforcement agencies did not grind to a halt during the 1980s when exactly this type of information was being used in adversarial trials of the heads of organised crime families? There is also the important question that such measures backfire. Many critics argue that they are leading to the de facto criminalisation of whole communities and thus end up reducing rather than increasing the flow of information about crime. That was one of the lessons learned in Northern Ireland in the 1980s and is what lies behind the opposition of otherwise hard-nosed cops like George Churchill-Coleman to the current legislation.

The fact is that the lack of the flow of information about crime or terrorism is not simply a technical problem. It is also a social and political one. In left realist criminology (see Lea and Young 1984, Kinsey et al. 1986) it is well understood that the flow of information about crime to the police is governed crucially by the relations between the police and the communities within which they act. If communities regard the police as a hostile occupying force who abuse innocent people on, for example, racist grounds then the flow of information about crime will dry up, police investigations will likely meet a 'wall of silence' and it will be extremely difficult to recruit members of the communities concerned as police informants. In such circumstances even some varieties of criminal offenders may well be accorded heroic status in 'getting back' at the authorities on behalf of the community. Others, of a more harmful variety may be regarded as 'villains but our villains." If anyone is going to sort them out it will be us, the community, not the police whom we detest. As regards everyday criminality police forces and governments have, over the last couple of decades, come to understand these dynamics and have taken a variety of steps to bring police closer to communities.

Very similar dynamics pertain to terrorism. Considering, for example, terrorist networks such as Al Quaeda, whose origins lie in Middle Eastern Islamic communities and their experience of Western, particularly US, domination. Large numbers of people, undoubtedly the majority, in these communities see the US as interested only in the region for its Oil resources and prepared to dominate the area through supporting repressive local elites and to sustain the role of Israel as a US proxy in the area, by turning a blind eye to the continual repression of the Palestinian community. Attitudes to terrorism, the distinction between terrorists and freedom fighters, will be much more blurred and complex in such communities. Accordingly the flow of information about terrorism, the willingness of people to act as informants will be far less. A glimmer of understanding surfaces from time to time as US and European governments call for the establishment of a 'viable Palestinian state' but, at the time of writing, it is difficult to see with any clarity precisely what steps the West is prepared to take in support of this project.

This is not the place for a sustained discussion of Middle Eastern politics. The important point is that the flow of information about terrorism, indeed the very existence of terrorism is a social and political issue amenable to social and political solutions which may in the long run be more effective than security counter-measures. The point is to show there are other ways of dealing with the problem. This is particularly important when we come to consider some of the consequences of the measures we have been talking about for the wider legal and criminal justice systems.

trickle-down

The first point is always to remember that we have not two criminal justice systems but one. It is very difficult indeed to insulate legal changes in one area from seeping into the system as a whole. As the Labour peer and Barrister Helena Kennedy wrote in November last year (2004) when the current anti-terrorism legislation was being contemplated:

Anti-terror laws cannot be vacuum packed; they seep into the policing culture and create new paradigms of state power. During a visit to India this spring, the home secretary suggested that governments may have to consider whether the burden of proof might have to be lowered from "beyond reasonable doubt" to the civil test of the "balance of probabilities" in terrorist trials. Two days later, the prime minister agreed that such a change should be considered, and he went further, suggesting that the lower standard might also apply to other serious crime. What is introduced today for terrorism almost invariably enters general usage shortly thereafter. The right to silence was first emasculated in terrorism cases in Northern Ireland in 1988, but the erosion of the right was extended into all domestic law in the UK in 1994. (Kennedy 2004a)

It is certainly the case that police have used earlier anti-terrorist legislation (Terrorism Act 2000) to ban peaceful protests outside an arms fair in London in 2003. There is already as suspicion that it will be used against animal rights protestors who, within the terms of the 2000 Act, are a variety of terrorism. This relates to the fact that the definition of terrorism in the 2000 Act is very wide indeed. The following summary is provided by the 'magnacartaplus.org' website

an act of terrorism is any specified action, the use or threat of which is designed to influence any government or to intimidate the public in order to advance a political religious or ideological purpose. The specified actions are actions which:

• involve serious violence against a person, 
• cause serious damage to property, 
• endangers a person's life (other than the person committing the act), 
• create a serious risk to the health or safety of the public 
• or are designed to interfere with or seriously disrupt an electronic system.

Damage to property or to electronic communications as a terrorist offence is worrying. These things are all worrying not because involving serious violence is something we should condone but because other aspects of the definition can be subject to such wide interpretation. Something as widely defined as this is bound to have 'trickle-down' effects. In the same way there has been a lot of concern that the asset seizure provisions of the 2002 Proceeds of Crime Act are going to be used less against the big 'kingpins of international organised crime' but rather against middle level drug dealers and small criminals who can be identified as having acquired a 'criminal lifestyle'. There are other examples of how draconian legislation, even if it is passed for laudable purposes, once it gets onto the statute book, can be used for quite different purposes. Thus in an interesting case at the time of writing in a US owned arms company, operating in the UK whose produces were apparently used in Iraq and which has a factory in the UK has applied for an injunction against peaceful demonstrations under the Protection From Harassment Act 1997. This legislation was passed, it may be recalled, for the protection of women who are being stalked by men. If that is the use that can be made of legislation which was not in anyway intended as a threat to civil liberties, imagine what uses are going to be made of the anti-terrorist legislation!

The most important form of trickle-down I've already mentioned, the fact that whole communities are being criminalised. There have been massive police sweeps in Muslim communities with very few people being eventually charged with actual criminal offences. This is a general characteristic of stop and search operations: large numbers of people stopped and very few charged with any criminal offence (and where they are, it is often the result of an altercation about being stopped)

trickle-up

But there is one problem with the trickle-down approach. It's okay as far as it goes but it makes the mistake of seeing the 'exceptional measures' as responses to particular problems and as the main source of contamination of an otherwise reasonable system of civil rights and due process. In other words if it wasn't for the unfortunate facts of terrorism and organised crime then civil liberties and due process would not be under threat. What is not emphasised is that these high profile measures in fact fit in very well with developments which have been going on for a number of years both in the international sphere and in domestic criminal justice and as regards 'ordinary crime'.

Internationally: a lawless world 

We have heard a considerable amount over the last couple of years about how 9/11 came at a very convenient time for the Bush administration in the US and provided a rationalisation for projects that were already being planned. The main one was of course the invasion of Iraq. Critics raised the question of what precisely this had to do with the war on terrorism since Saddam Hussein and Osama Bin Laden were not exactly friends. It was emphasised, further, that the invasion of Iraq and the destruction of its infrastructure and security forces would produce precisely the type of political and social vacuum which would act as a magnet for terrorist groups, in a similar way to what had occurred in Afghanistan a few years previously.

The international lawyer, Philip Sands, argues, in his recent book 'A Lawless World' (Sands 2005) that 9/11 (September 2001) has been seen as a turning point in the collapse of international law. Up to that point, since the Second World War, there had been a steady growth in the stability of international legality, first in the area of trade and latterly in the area of human rights. One of the gains of international human rights, up to that point, was the new doctrine that the sovereignty of states was no longer a defence against genocide or torture or repression. This was made clear in the Balkan wars during the 1990s. A head of state, Slobodan Milosevic, was handed over to international jurisdiction (and is still on trial in the Hague) for crimes committed in his own country when head of state. Likewise, as Sands has observed, the attempted arrest and trial of the former Chilean dictator, Augusto Pinochet, while on a visit to London, on a Spanish arrest warrant for crimes committed in Argentina while he was head of state confirmed the principle. The House of Lords agreed that under the provisions of the 1984 international convention on torture such activity could not be seen as a function of the state and hence no immunity could be granted to a former head of state in regard to such crimes. Pinochet's lawyers managed to secure his release on health grounds but, Sands argues, the principle was reinforced. "Despots and dictators‚ will now travel abroad with a great deal more trepidation. Some choose not to travel at all‚ on the possibility that they too may face arrest and charges." (Sands 2005: 43)

But sometime in the 1990s there was a turning point. It wasn't 9/11. There was a growth in US assertiveness and nationalism and contempt for international arrangements which predated this. Indeed, for some of the neo-conservatives around Bush, 9/11 was a heaven sent opportunity to justify the ruthless deployment of US military hegemony which had been planned for sometime. Such planning included, of course, the invasion of Iraq and the seizing of that country's Oil reserves. But other measures were equally important such as the failure to sign up to the Kyoto treaty on measures against global warming, the refusal to join and be bound by the International Criminal Court (ICC). The latter was particularly symptomatic. As Sands says, "the Court has become a useful stalking horse for a broader attack on international law and the constraints which it may place on hegemonic power." (Sands 2005: 60) The Bush administration (Rumsfeld in particular) are worried that the regime of international rule of law emerging up to that point, and in particular, the facility of an International Criminal Court, placed too many restraints on US autonomy. In particular they are worried that US military personnel, active in various parts of the world, may find themselves prosecuted for human rights violations. Does this mean that human rights violations are to be accepted as a normal form of US military or other action around the globe?

The idea of an emerging global regime of human rights is associated with the idea of globalisation as an advancing process of smooth international co-operation which displaces not only the Cold War but the entire system of power politics between states. The deviant who steps out of line will then be consensually criminalised and hauled before the ICC. But, as commentators increasingly remind us, this view of globalisation has proved to be a bit of a myth. Globalisation has turned out to have exacerbated, rather than ameliorated, international inequalities and conflicts between poor and rich countries over access to markets particularly for agricultural products. The cold war has been replaced by a situation in which the US is the sole superpower. But this is a passing phase. It will be replaced by intensifying competition between great regional blocs (US, China, India and possibly Europe) with no-holds-barred struggle for diminishing supply of natural resources: Oil and water in particular. It hardly needs to be said that this struggle may destroy the planet. It is the attempt to pre-empt this struggle by staving off as long as possible the rise of challenges to US hegemony that lies behind things like the neo-conservative Project For A New American Century. One of the first casualties of this conflict is likely to be the international rule of law. This proved to be the case with the invasion of Iraq in violation of acknowledged principles of international law and without the required permission of the United Nations Security Council for such an act. During the occupation of Iraq by the US led coalition numerous human rights violations have come to light both by insurgents (kidnapping and decapitation of civilian hostages) and by coalition forces as with the abuse of Iraqi detainees at Abu Graib prison. In addition, large numbers of civilians have been killed by the deployment of firepower against members of the civilian population.

So rather than terrorism being some sudden problem that 'we', the civilised world, have to take steps to deal with, steps that reluctantly involve coercion and even torture, these latter emerge anyway out of the new reality of power politics which is replacing the smooth and peaceful globalisation that seemed to be developing during the second half of the last century. The result is international terrorism as one side of the coin, and illegal military activities and contempt for international law and institutions on the other. illegally invading Iraq, flattening Falluja with heavy bombardment is the other. Both sides use the means at their disposal. A world of growing international legality and the rule of law is threatened with the return to force. If international politics is already increasingly characterised by an abandonment of legality in the pursuit of national interest then such things as recourse to torture, in the desperate search for sources of information, will be all the more likely

Knowledge in risk society 

There are some long term tendencies at work in modern society, which I can't say much about here, which concerns the way dangerousness and risk are perceived. To oversimplify, so much knowledge about what is going on is based on statistical or actuarial surveillance of the behaviour patterns of large populations. Businesses and banks, for example, may plot their customers' behaviour patterns from their purchases so they can, perhaps, target their advertising better. Credit card companies may have computer generated profiles of card use such that if a cardholder makes an exceptionally large purchase they may have to answer some security questions before the transaction is validated. In such cases two distinct processes are at work. Firstly, a statistical or actuarial process identifies an action (departure from normal patterns of card use) which indicates a certain degree of risk that the card has been stolen. But this is the trigger for a second process in which the individual cardholder is contacted and can confirm the purchase with the appropriate security questions or other identification. The cardholder would be justifiably annoyed if the first process automatically defined whoever was holding the card at that time as under suspicion of theft or, alternatively, simply cancelled the card. If cardholders who departed from predictable expenditure patterns were defined as a 'risk group' and had their cards cancelled on that basis there would be uproar.

Such techniques are now an important part of the anti-terrorist apparatus. The techniques at work are exemplified in the US by the Pentagon's Terrorism Awareness Project which began in 2002. As Kirstie Ball and Frank Webster describe it:

"The presumption is that terrorists exhibit patterns of behaviour that can be identified by 'data mining' many diverse and mundane activities which are subject to surveillance of one sort or another. Accordingly, records of airline tickets, rental payments, traffic violations, bank statements, e-mails, immigration control, credit card receipts, parking tickets, telephone calls, ATM usage will all be accessed-and these through time so patterns may be discerned and evaluated. Similarly, video camera records from key locations (airports, monuments, public buildings etc.) and film from closed-circuit television cameras at freeway tollbooths, will be examined using facial recognition techniques to pinpoint suspicious people" (3)

In other words rather than using these techniques to track down particular criminals or suspects that the law enforcement agencies with to interview in connection with particular criminal events, the technology can be deployed to organise actuarial profiles. Individuals can be awarded scores on a risk scale involving, purely hypothetically, so many airline trips to particular places combined with being seen in certain locations, making certain types of credit card payments or using ATMs in particular places and emailing certain locations. A high 'score' could then become the basis for 'reasonable suspicion' of engagement in terrorist activity. At this point two quite different strategies could be pursued. The score could be used as a basis for further surveillance and investigation which may lead the individual(s) concerned to be questioned by law enforcement agencies and if further evidence is forthcoming during a time period compatible with regard to civil liberties, to arrest and charge for terrorist offences. On the other hand the evidence from the surveillance analyses, used as a justification for 'reasonable suspicion' could in and of itself become the basis for restriction. The nightmare or 'futureworld' scenario is of course that a control order along the lines of the new UK legislation is automatically issued by the computer system which collates the surveillance data.

The point is this: an increasing amount of knowledge about populations takes this general statistical or actuarial form on the basis of which populations may be allocated to groups distinguished by various degrees of risk of engaging in harmful behaviour. Measures are accordingly taken against persons not on the basis of anything they have actually done, or on the basis of evidence about things they are preparing to do, but on the basis of membership of a group with a high statistical likelihood of engaging in the harmful activity in question. In fact such have made considerable inroads into criminal justice particularly in the UK and the US and have produced an orientation whose aim:

"is not to intervene in individual's lives for the purpose of ascertaining responsibility, making the guilty 'pay for their crime' or changing them. Rather it seeks to regulate groups as part of a strategy of managing danger." (Feeley and Simon 1994: 174)

Examples can be drawn from the control of mentally ill offenders where individuals may be subject to constraint not on the basis of individual criminal acts but on the basis of membership of groups regarded as at risk of committing such actions. (see Fitzgibbon 2004) Another example might be the Football (Disorder) Act 2000 which allows police to apply to magistrates courts to place orders banning individuals from travelling when a football match is on, without having to prove they have committed ,or are part of an identifiable conspiracy to commit, any offence. The criteria can be rather that they are known to associate with people who have committed offences related to football violence. They are, in other words, members of a risk group and it is on this basis that their constraint is justified. In addition the police have power, under the Act, to prevent people, even if not subject to banning orders, from leaving the country if they, the police have 'reasonable grounds' for believing the person has committed acts of violence or disorder, or may cause trouble at a regulated football match. Thirty, even twenty years ago, these would be considered impermissible intrusions into personal liberty despite the problem of violence at football matches.

The notion, therefore, that it is legitimate to constrain the liberty of people who are 'likely to be' terrorists or may 'on the balance of probabilities' be involved in some form of terrorist-related activity, seems therefore less a departure from normal ways of thinking about society. Where people are being criminalised-that is to say that their liberty is being restricted in some way by criminal justice agencies or agencies acquiring criminal justice powers-on the basis not of evidence that they have committed a crime or are conspiring to do so but on the basis of their inclusion in a group which is considered to have a high risk of crime, it is obvious that a rigorous criteria of legal proof such as beyond reasonable doubt loses its relevance. It does so because it is primarily aimed at specifying the requirement of firm evidence of individual criminal action. The notion of the balance of probabilities and even more that of reasonable suspicion, on the other hand, allow more space for probabilistic calculations of 'likelihood' of criminality. Such calculations are precisely the ingredients of actuarial and risk-based knowledge.

There is one important point that must be emphasised. The spread of actuarial or statistically based knowledge about populations is to do with the increasing complexity of modern society. But it does not follow from this that we therefore have to accept as inevitable that criminal justice and other agencies will constrain individuals on the basis of probability and risk. As the credit card example showed, such calculations can act as the starting point for proper investigation of the circumstances of individuals. In the case of terrorism, as has been argued above, there is a shortage of information precisely because of the political relations between countries such as the US and the communities and conflicts from which terrorists emerge. In the case of 'ordinary' criminality, the dilution of standards of proof to accommodate risk and probability is much more to do with the fact that a concern with individual criminality is partially displaced by the concern with the management of entire social groups: the underclass and socially excluded.

From due process to crime control

The increasing role of criminal justice agencies in the direction of general social control of the poor and socially excluded has resulted in shift in orientation which in many respects parallels that which we noted above in the international sphere though here the 'return to force' obviously doesn't take the form of an abandonment of the institutions of criminal justice but rather their own move in the direction of coercion and the abandonment of principles which were hitherto considered definitional. The 1980s was a period in which criminal justice reformers were thinking very much about the rights of the suspect and protecting due process. This was the time when serious miscarriages of justice were unearthed as high profile Irish terrorist cases were overturned (Birmingham Six, Guildford Four, Maguires, Judith Ward) and a lot of thought was being given to how to stop it happening again. Even at the height of IRA bombing campaigns in mainland Britain and after an attempt to assassinate Margaret Thatcher and her cabinet, lowering the standard of proof and imposing control orders were never contemplated as a method of increasing the likelihood of catching IRA terrorists.

But the 1990s saw a sea change in which the emphasis on due process has given way to a concern with what purports to be 'more effective crime control.' The mantra of due process always used to be 'it is better that 10 guilty people go free than that one innocent person is wrongly convicted.' Today this sounds like insufferable head-in-the-clouds idealism. Again, Helena Kennedy in her recent writing quotes Tony Blair's statement way back in 2002 that 'It is perhaps the biggest miscarriage of justice in today's system when the guilty walk away unpunished.'; and on David Blunkett's identification of the need to 'rebalance the system in favour of the victim' . She says "What is new is for a Labour government to mount such a wholesale assault on the underpinnings of the rule of law" (2004b: 11)

In fact so many things are happening that it is difficult to keep up with them. As regards criminal procedure governing court trials there have been, during the 1990s: restrictions on the right to jury trial, reduction in the right to silence, changes in the rules relating to disclosure of evidence to the advantage of the prosecution and most recently under the Criminal Justice Act 2003 the admission of hearsay evidence in criminal trials and the allowance of previous convictions becoming known to the jury prior to verdict, both at the discretion of the judge. In the context of such developments the reversal of the burden of proof and the lowering of the standard of proof in the areas of organised crime and terrorism do not stand out: rather they confirm the general trend. This is even more so when you consider some of the other measures which have been put in place over the last decade.

I want to conclude with the example of UK Anti-Social Behaviour Orders . I began the discussion by arguing that anti-terrorist control orders under the Prevention of Terrorism Act 2005 were a sort of political version of the Anti-Social Behaviour Order. This similarity completes the circle and confirms the fact that what is happening in the sphere of anti-terrorist legislation is in tune with general developments rather than distorting an otherwise due process oriented criminal justice system. Known popularly as 'ASBOs' Anti-Social Behaviour Orders were initiated by the Crime and Disorder Act 1998. After a slow start they have moved into widespread use over the last few years. Since being strengthened by the Police Reform Act 2002 and the Anti-Social Behaviour Act 2003, they can be used to ban individuals from entering certain areas or carrying out specific acts for a minimum period of two years. Applications for ASBOs can be made to magistrates courts by police, local authorities, and various housing authorities such as housing associations. Again, we should be grateful that they can only be granted by the courts. They are basically injunctions against, as it says on the ASBO government website, "behaviour which causes or is likely to cause harassment, alarm or distress to one or more people who are not in the same household as the perpetrator."

By the end of June 2004, 3,069 ASBOs had been issued throughout England and Wales. There are several things about ASBOs which are causing sufficient concern among both civil-liberties oriented lawyers and social workers and allied professions, that recently (8th April 2005) a new pressure group 'ASBO Concern' was launched in London with support from key social service practitioner groups, in particular the British Association of Social Work and the National Association of Probation Officers. The first concern is that the evidence required for an order need only meet the civil standard of balance of probabilities that the behaviour in question will have the consequences ('causes or is likely to cause') predicted. However, the violation of an ASBO becomes a criminal offence which can carry a prison sentence of up to five years. About 40 percent of ASBOs are currently being breached, (42 percent in 2003 which is 6 percent up on 2002.) The consequence is that large numbers of people, mainly the poor and young, are ending up in prison.

The second concern, and one of the motivations for the formation of ASBO Concern is that having started off as responses to low level anti-social behaviour they are now being used, and coupled with the 'naming and shaming' practise of some local authorities in publicising names or recipients of ASBOs, for a widening spectrum of behaviours that people don't like. In effect people are being criminalised for behaviour which may well fall far short of what is normally considered criminal. Harry Fletcher, assistant general secretary of the National Association of Probation Officers, speaking in advance of the launch of the new pressure group (on 6th April) ASBO Concern, said:

"Evidence continues to emerge of Asbos being used by police and local authorities as a catch-all to sweep off the streets anyone whose behaviour is eccentric or to some people is disagreeable.

"Examples include teenaged boys being banned from playing football and a couple who were barred from having rows with each other. they are being used outrageously against people receiving 'care in the community'.

The important point illustrated by the mounting problem of ASBOs is that mentioned already above. When the criminal justice agencies become less mechanisms for dealing with specific criminality and more as devices for managing risky groups and all manner of deviant behaviour then things like due process and the need to produce criminal convictions 'beyond reasonable doubt' become impediments to the flexibility of the system to manage problem populations.

So what is the connection between all this and terrorism. We may conclude by returning to our starting point: the problem of anti-terrorist control orders. Shami Chakrabati, the director of the civil rights organisation Liberty, has made the connection, very succinctly. She wrote recently 

"The presumption of innocence, like innocence itself, is more easily compromised than reclaimed. 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." (Chakrabati and Casey 2005). 

This is the issue of 'trickle-up' in a nutshell. If society is already doing things which violate the older precepts of due process and civil rights, then it is less likely to take a stand when something really serious comes along. We are drifting blindly into an authoritarian criminal justice system by incremental steps.

updates on recent anti-terrorist legislation will be found here

References

Adrian Levy and Cathy Scott-Clark (2005) 'One huge US jail' The Guardian, Saturday 19th March Ball, 
Kirstie and Frank Webster eds.(2003) The Intensification of Surveillance. London: Pluto Books 
Chakrabati, Shami and Louise Casey (2005) 'Mob justice or yob control?' The Guardian Saturday 19th March 
Cox, Robert (1995) 'Critical Political Economy' in Hettne, Bjorn (ed.) International Political Economy: Understanding Global Disorder (31-45) London: Zed Books 
Duffield, Mark (2001) Global Governance and the New Wars: the merging of development and security. London: Zed Books
Feeley, M. Simon, J. (1994) 'Actuarial Justice: the Emerging New Criminal Law' in Nelken, D. ed. The Futures of Criminology. London: Sage publications.
Fitzgibbon, Wendy (2004) Pre-emptive Criminalisation: Risk Control and Alternative Futures. (Issues in Community and Criminal Justice. Monograph 4) London: National Association of Probation Officers
Helmore, Edward (2005) 'US relied on 'drunken liar' to justify war' The Observer 3rd April
Kennedy, Helena (2004a) 'For Blair there is no such thing as legal principle' The Guardian Saturday 27th November
Kennedy, Helena (2004b) Just Law London: Chatto & Windus
Kinsey, Richard, John Lea and Jock Young (1986) Losing the Fight Against Crime. Oxford: Blackwell
Klein, Naomi (2000) No Logo. London: HarperCollins
Lea, John (2004) 'Hitting Criminals where it hurts: organised crime and the erosion of due process' Cambrian Law Review (vol 35)
Lea, John and Jock Young (1984) What Is To Be Done About Law and Order? Harmondsworth: Penguin
Murray, Craig (2005) 'The Doorstep Diplomat' (interview) Socialist Worker, 9th April
Sands, Philippe (2005) Lawless World: America and the Making and Breaking of Global Rules London: Penguin/Allen Lane