Prosecuting suspected terrorists: precursor crimes, intercept evidence and the priority of security
Introduction The UK’s counter-terrorism strategy – CONTEST – is divided into four strands: Pursue, Prevent, Protect and Prepare. This chapter focuses on the pursue strand in particular, which aims to reduce the terrorist threat to this country by disrupting terrorists and their operations. A number of methods of disruption are available, including: prosecution; deportation; proscription; seizing and freezing assets; and, Terrorism Prevention and Investigation Measures (TPIMs). Of these, the CONTEST strategy states that the preferred method is prosecution (Home Office 2011a). This chapter examines this so-called ‘priority of prosecution’ (Home Office 2011b: 40) and argues that, in fact, the emphasis placed on prosecution is equivocal and better understood as a manifestation of the priority that contemporary counter-terrorism policies attach to national security. The chapter examines two key issues that lie at the heart of the UK’s efforts to prosecute suspected terrorists in order to illustrate this ‘priority of security’. First, it examines the existing raft of terrorism precursor offences. There are important rule of law reasons for prosecuting suspected terrorists whenever possible. Requiring the state to prove its case against the suspect in open court beyond reasonable doubt and affording the suspect the opportunity to respond to the case against him mean that prosecution has a moral authority other forms of disruption may lack. But, the chapter argues, these considerations have not been the primary driving force behind the expanding scope of the criminal law. Indeed, many of the precursor offences pay insufficient regard to human rights and the rule of law. Instead, it is security-based considerations that have proven the most influential. The imposition of long prison terms is more protective of national security than alternative measures such as deportation and TPIMs, which has ‘an obvious appeal to security-minded politicians and an anxious public’ (Zedner 2012: 10). There is also the politically persuasive retributive argument that conviction for a terrorism offence results in the public ascription of the label ‘terrorist’ and a commensurate prison sentence. It will be argued that the danger with this approach is that it threatens to undermine the very qualities that give the criminal law its moral authority in the first place.