Anticipatory risk, pre-emption, and ethics
This chapter focusses on the ethical questions posed for criminal justice systems by the processes of security regulation that have swept across the West in the early twenty-first century. The 2001 terrorist attacks in the United States produced a range of institutional responses which have produced sizeable effects on criminal justice and human rights. The so-called ‘9/11 effect’ (Roach 2011) has been both broad and wide, ranging from tiers of domestic counter-terrorism legislation to international military interventions. One of the remarkable features of this recent phase of securitization has been the interventionist and activist nature of policy-making. Following the tone set by George W. Bush in the aftermath of 9/11, a strong emphasis has been placed on pre-emptive methods of regulation designed to avert an attack of such scale in the future by proactive intervention. Bolstered by the 9/11 Commission’s (2004) summation that ‘the most important failure was one of imagination’, the logic of anticipatory risk has driven a range of new modes and techniques of regulation, from Internet data mining to electronic tagging and biometric scanning. In a world in which the terrorist threat is pronounced, pre-emptive methods of intervention may seem eminently sensible. If the threats are grave, the risk of inaction is sizeable. Thus, intelligence and security services need to intervene, even in circumstances in which the evidence may be patchy and incomplete. Thus, the 9/11 effect has involved a tangible shift in the calculus of risk, away from post hoc probabilistic assessment to pre hoc imaginings of upcoming threats. What Vedby-Rasmussen (2004) has alluded to as the ‘presence of the future’ in considerations about domestic and international security has produced profound consequences.
Rather than being drawn into an otherwise important discussion about the efficacy and the effects of ‘activist’ military strategies, here we wish to map out some of the consequences of the ‘pre-emptive turn’ in criminal law, for criminal justice policy and policing practices. Given the potential range of such an inquiry, we will be drawing on counter-terrorism initiatives in the United Kingdom as a means of engaging with some of the broader issues that have arisen around the ethics of ‘doing’ security in uncertain and troubled times. While the solutions to these problems are beyond our ambit, we will be suggesting some conceptual apparati that can enable us to understand some of the prominent ethical problems and issues that have arisen in this area.
The chapter falls into four parts. In the first, drawing on recent criminological literature, we offer an understanding of pre-emption. In the second, we consider what the role of the criminal justice system might be in setting a context in which ethical policies and practices are formulated. Here we start from the presumption that criminal justice is a public good from which all members of any society are intended to benefit. We recognise that such a position is open to contestation. However, the nature of this contestation is not the central purpose of this discussion; consequently, this is not the place to engage in those debates. In the third part, using the policing of counter-terrorism in the United Kingdom as our example, we illustrate the kinds of policies and practices that have been put in place under the principles of pre-emption. In the final part of the chapter, we offer some theoretical tools that can enable us to reflect on the emergent issues posed by this particular pre-emptive moment in time.
Pre-emption is more than prevention. Pre-emption is firmly rooted in anticipating the risks rather than acting on the known risks. As Hudson and Ugelvik (2012: 9) observe: ‘unlike the normal logic of risk management, precautionary logic does not entail actuarial calculations of the likelihood of the disastrous event occurring, its mere possibility is sufficient to bring forth preventive actions’. Indeed Zedner (2007: 259) notes, the pre-emptive moment takes place prior to concrete identification of harm and thus occurs at a point at which threats may be inexact and uncertain. Rather than asking the question ‘what is?’ pre-emptive logics instead move more readily into the speculative terrain of ‘what if?’ questions (see Walklate and Mythen 2015). Under the logic of pre-emptive risk, early action is justified with an eye on the potential scale of the threat and the need to protect the majority. Thus, pre-emption is effectively something of a risk trade-off. It refers to the institutional preference for early intervention – even if this results in the reduction of the civil liberties of a minority – on the basis that inaction may pose a larger threat to public safety (see Maras 2013: 127). This logic of trading-off the loss of individual liberties in favour of greater collective security has been routinely inscribed in policy in the UK. The National Security Strategy (2012: 23), for instance, states: ‘to protect the security and freedom of many, the State sometimes has to encroach on the liberties of a few: those who threaten us’. Thus, while neo-liberal states may still pride themselves on a commitment to secure the safety of citizens, it is clear that these pledges are increasingly conditional rather than absolute. What statements like this make explicit is a distancing of the state from guaranteeing fundamental rights for all, whilst simultaneously sanctioning a reduction in rights for some as a necessary measure for the protection of all. This effort to create a cloudless divide between an ‘us’ worthy of protection and a ‘them’ who are considered to be less worthy of protection, redefines what might be understood as ‘justice’.
As the discussion above implies, the increasing presence of pre-emption in informing policy and practice has proceeded by making particular assumptions about the relationship of justice, liberty, and security. Of course in any society rooted in principles that address the interests of all of citizens, security and liberty are interdependent (see Hudson 2012). Moreover, there are always tensions in the relationship between liberty and security, and these are by no means new in liberal democracies. Nonetheless, if we start from a presumption that they exist in a symbiotic relationship with one another rather than a separate one, the delivery of criminal justice can be framed in a particular way, which raises specific issues. This assumption of interdependence raises the issue of what constitutes a safe and fair society. How can the principle of ‘public goods’, and this chapter starts from the position that criminal justice is a public good, be sustained in in the context of a criminal justice system which inflects towards pre-emption as a solution for insecurity? Before we respond to this question we should first be clear about our terms. Following Waldron (1993: 358) we would concur that a public good is ‘something which is said to be valuable for human society without its value being adequately characterisable in terms of its worth to any or all of the members of society considered one by one’. The value of public goods is thus not reducible to their aggregate value for each member of society, but rather what they are worth collectively. In other words public goods represent something more than their economic value and are irreducibly social. Following Loader and Walker (2007), we might go on to suggest that security and justice can be conceived as ‘thick’ public goods. In other words, they contribute to, ‘a state of wellbeing – a state in which we are able to live – and live together – securely with risk’ (Loader and Walker 2007: 169). Indeed, as Cook (2006: 21) posits, in many senses, the value of public goods in general, but security and justice in particular, stems from the capacity to guarantee the dignity and rights of all citizens:
If a society cannot guarantee ‘the equal worth of all its citizens’, mutual and self-respect and the meeting of basic needs, it cannot expect that all citizens will feel they have an equal stake in abiding by the law, and it cannot dispense justice fairly and enhance confidence in the law.
So far as ethics are concerned, any criminal justice system is a key component in delivering this sense of equal worth. In this sense, criminal justice is intimately connected with social justice. In other words it is a process in which we all have an interest, particularly in terms of appropriate delivery, whether or not ‘we’ are the ones on the receiving end of such delivery processes. This position poses moral questions for the criminal justice system in the round and, in a more focussed fashion, for those charged with the delivery of security practices and initiatives. All this said in theory, just what public goods mean and represent in practice remains both uncertain and unclear. Furthermore, such questions are heightened by economic considerations, particularly in austere times, when cost-cutting initiatives in the United Kingdom and elsewhere have impacted heavily on the criminal justice system in general and policing in particular. This context adds further to the already existing complex and blurred boundaries between the public and private delivery of security and justice (see Bowling and Sheptycki 2012). Exposure to the economic pressures of the neo-liberal market has provided a space in the delivery of justice which has been partially filled by what might be termed ‘security entrepreneurs’, within both the public and private domains. Of course, the extent to which such entrepreneurs have wider collective interests – or indeed the delivery of justice – as their primary focus is a moot point. There are, however, other complexities here.
Loader and Walker (2007) ask whether or not it is actually possible, amidst this complexity, to even conceive of a ‘transnational public interest’ which the post 9/11 context appears to have put to the fore. The presence of over 40 political leaders from a wide range of constituencies joined in solidarity in Paris on January 11th, 2015, suggests that such an interest might be possible. Whether or not such events offer promise for future dialogue about transnational justice is a moot point. Nevertheless, what the incidents in France – like the terrorist attacks in New York, Madrid, and London before them – have triggered is a demand for more extensive pre-emptive security powers including the extension of surveillance and data mining practices and interception of communications (see Watt 2015). Just whose interests are served by these developments and how effective they may be in reducing the threat is far from evident. Yet the critical voices are invariably scotched and shouted down by those that join in the chorus of ‘more security’. It is at this point, when security is presumed to be an end point, that the question of collective social good becomes silenced. In the insistent search for a security utopia, sight is lost of the social value of the criminal justice system and its wider moral purpose for the domestic sphere.
Thus, contemporarily searching for a sense of wellbeing in which we can all live together securely with risk is multi-layered and multi-faceted. In any particular social context how those layers manifest themselves will be a reflection of the particular ways in which criminal justice and social justice are intermeshed in the delivery of security for every member of that society. In any society the delivery of security involves a wide range of actors and points of intervention whose everyday practices might coalesce with ‘ordinary pre-emption’ (Simon 2012) or risk profiling (Leese 2014) to government-led directives that frame such practices, such as risk registers (Hagmann and Cavelty 2012). It also involves more specific criminal justice centred policies. It is to these policies that we shall now turn, using developments in the United Kingdom as our example. In the spirit of recognising that criminal justice is multi-layered and multi-faceted, three features of this complexity and its expression in relation to pre-emption will be considered: criminal law, criminal justice policy, and criminal justice practices.
Given the historical presence of the ‘troubles’ in Northern Ireland, the extant legislative powers to combat terrorism in place in the UK were already stringent prior to 9/11. Following on from the Terrorism Act (2000), the Anti-Terrorism, Crime and Security Act (2001), the Prevention of Terrorism Act (2005), the Terrorism Act (2006) and the Counter-Terrorism Act (2008) all added to existing tiers of legislation and extended the remit of criminal law. Within these tiers new pre-emptive modes of regulation have proven to be the most controversial, including the introduction of Control Orders, extensions to detention without charge, acts preparatory to terrorism and the offence of incitement (see Kibbe 2012; Miller and Sabir 2012). Taken together these examples are indicative of efforts by the state to intervene earlier to prevent would-be terrorists from launching attacks. Naturally, the extension of precautionary powers has been welcomed by senior police officers and intelligence agents who believe that pre-emptive measures are necessary to combat the threat and to enhance public safety (see Parker 2013). Measures such as these assume that reducing liberties for a minority (defined as dangerous) is an acceptable trade off if it enables the safety of the many. Aside from the implicit erroneous zero-sum assumption, it is the section in brackets that we might want to focus on and the extent to which the dangerous have – or indeed can be – clearly defined.
The rafts of legislation recounted above mark the consolidation of what Hudson and Ugelvik (2012: 8) describe as a ‘preventive state’. This is a state that has cast aside the presumption of innocence – a presumption that is in our collective interest – in favour of pre-emptive intervention, a presumption that accepts and supports particular interests. Within the spectrum of pre-emptive legislation introduced in the UK, extensions to detention without charge and the enforcement of control orders have proven to be highly controversial. Prior to the 2005 terrorist attacks in London, the UK already had extensive powers to detain individuals without charge in cases in which they were suspected of involvement of terrorism. Despite this, after the 7/7 attacks, the British Prime Minister Tony Blair campaigned to extend the period from 14 to 90 days, having already doubled the allowable period from 7 to 14 days in 2003. In 2006 legislation was passed to extend such detention to a period of 28 days without the need for charges to be levelled. Given that the introduction of new offences of glorification and incitement considerably reduced the threshold for terrorism related charges, the setting of 28 days of permissible detention without charge provoked widespread disquiet. In effect, detention without charge renders the ancient right of habeas corpus void and shifts the presumption of innocence until proved guilty to a presumption of guilt unless innocence can be proven (see Zedner 2009). Having reviewed the legislation passed through parliament by the former Labour government, the present Conservative-Liberal coalition amended the Terrorism Act, reducing the maximum allowable period of pre-charge detention to 14 days under The Protection of Freedoms Act (2012). It is worth noting that 14 days remains exceptional and is one of the longest periods of pre-charge detention that exists in any comparable liberal democracy. In the United States the limit is two days, in Italy it is four, and in Canada just 24 hours (see Liberty 2015).
The long-standing and cherished principles of justice and freedom threatened by detention without charge were similarly undermined by the regime of control orders. Formally introduced in the Prevention of Terrorism Act (2005) to restrict the activities of terrorism suspects, control orders allowed a range of restrictions on liberty, including restrictions on communications, possessions, employment, residence, and travel. Further, those under control orders were subjected to electronic tagging, passport surrender, and frequent police visits. Despite being rarely utilised, control orders caused something of a storm amongst lawyers, human rights groups, academics, and civil liberties campaigners. Given their impact on basic rights and freedoms, control orders are tantamount to house arrest and akin to imprisonment without bars. The much-maligned system of control orders – deemed in 2006 by the High Court to be incompatible with the European Convention on Human Rights – was repealed in 2011 and replaced by Terrorism Prevention and Investigation Measures (TPIMs).
What is common in the criminal law examples above is the application of anticipatory risk in the interests of collective security. Yet defending against an imagined catastrophic future ultimately permits the curtailment of basic rights and freedoms for all, not just the targeted few. One commonly used justification for this kind of legislative response has been the ‘ticking bomb scenario’. The Senate Intelligence Committee Report on the use of torture made public in December 2014 has certainly challenged the efficacy of that scenario. Nonetheless, it has served as a powerful metaphor in defending various ‘states of exception’ ranging from secret surveillance to torture. History illustrates that what begins as an exception soon becomes the norm (see McCulloch and Pickering 2009), and the legislation referred to above is indicative of a normative pre-emption creep in policing and surveillance. The consequences of which, as shall be argued, are profound, not only for the ways in which the rights of those deemed ‘risky’ are curtailed, leaving the rest of ‘us’ safe (in theory), but also for the ways in which this legislative framework infringes upon what might be considered to be the public good of criminal justice: something that is in our collective interest.
The forms of counter-terrorism legislation referred to above are indicative of a long-standing political imperative to ‘think security’ (see de Lint and Virta 2004). In the UK this imperative is epitomised by CONTEST, the British State’s overarching counter-terrorism strategy. CONTEST comprises four interconnected strands of activity: Pursue, Prevent, Protect, and Prepare. The first two of these four strands are configured around the principle of pre-emption. Whilst elements of the Pursue strategy have been documented, it is the Prevent initiative that is worthy of further comment. Prevent (2011) constitutes the UK government’s policy response to the threat of extremism and is constituted by five goals. The first is to challenge violent extremism by recruiting moderate voices to challenge extremist ideology. The second is to disrupt extremism and to challenge the promotion of it. The third is to extend support to individuals deemed susceptible to extremism. The fourth is to increase local communities’ resilience to extremists and the fifth to tackle the grievances felt by local communities. The policy initiatives designed to counter radicalisation that comprise Prevent have been extremely controversial since its introduction in 2007–2008 (see Heath-Kelly 2012; Kundnani 2009; Thomas 2012). Although the present iteration of the Prevent strategy formally seeks to address all kinds of extremism – including that of the far right – in translation it has predominantly been areas with large Muslim populations that have been subjected to interventions under this initiative. The underlying aspiration is to encourage Muslims in particular to proclaim violence as illegitimate and align with core British values, thus discouraging religious extremism, preventing radicalisation, and promoting moderate forms of Islam.
This strategy has been widely criticised (see Miller and Sabir 2012: 21) not least because of the presumptive starting point that Muslim communities do not align with core British values to begin with. The attention given to Muslim communities under Prevent – at a time at which it is evident that far right extremism is flourishing in some white working class areas – is highly questionable (see McGhee 2010: 36). Prevent has sought to co-opt individuals within and without Muslim communities, to survey those communities, and to promote behavioural change in those that may be attracted to extremism (see Kundnani 2009). These processes of data-gathering have resulted in infringements on civil liberties, with the Channel project in particular causing consternation. The Channel project was a pre-emptive initiative – through which youth workers, teachers, and religious leaders were invited to gather and share personal data about young people, including their friendship groups, sexual preferences, and religious commitments – has been heavily criticised, both in terms of the rationale for intervention and its effects on the individuals targeted by it. In excess of 2,600 people have been referred through Channel for exhibiting signs of worrying behaviour that may lead to extremism, with 750 of this number being school children (see Whitehead 2013). Aside from the dubious grounds on which judgements regarding extremism and/or future radicalisation are being made, critics such as Heath-Kelly (2012) have pointed out that the logic of anticipatory risk in such policies is being stretched to the extreme, with young people being targeted not so much because they are risky, but because they are ‘at risk of being risky’.
Some of the problems with these earlier iterations of Prevent have been acknowledged by the government (Dodd 2010), yet newer versions have continued to accent surveillance and ideational change, while the support for the maintenance of community cohesion appears to have slipped away (see Awan 2013; Thomas 2012). Thus, a salient question, given the concerns of this chapter, that follows on from these observations is: what impact do pre-emptive policies such as Prevent have and on whom? As Spalek and Lambert (2008: 181) observe, policies such as Prevent place Muslims in a challenging and uncomfortable social position:
Muslims’ responsibilities as active citizens have increasingly been framed by anti-terrorist measures that encourage internal community surveillance so that the responsible Muslim citizen is expected to inform the authorities about the activities, suspicious or perceived to be suspicious, of their fellow community members, and actively help deal with any potential extremism.
This process of responsibilisation (Garland 2001) has ramifications for both the community and the self, throwing out contradictory and mixed messages about the security and protection of minority groups in contemporary society. Indeed, there is some empirical evidence to support the nature and extent of this contradiction and its impact on individuals and specific communities (see Kundnani 2009; Mythen, Walklate, and Khan 2013). Put simply, these policies are rooted in a conception of Muslim communities as suspect communities. In so doing they reflect implicit assumptions about whose security counts and, as a consequence, whose access to justice counts. Thus, instead of ensuring the self-worth of all members of society, these policies are only concerned to deliver that self-worth for some sections of society: ‘us’ not ‘them’. Simultaneously such policies are also blinkered and curtail the capacity to think differently about the delivery of security and justice.
For example, Dalgaard-Nielsen’s (2010) review of the available literature on radicalisation points out that, despite a panoply of policies being launched to counter extremism, the evidence base for these policies is extremely thin. When all is said and done, we actually know very little about what the process of ‘radicalisation’ actually looks or feels like. As Borum (2013: 106) cautions:
Assuming that radicalisation is the key to understanding and predicting terrorism is a grave misapprehension. Investigators must be mindful that terrorism does not always follow a linear process where a vulnerable person is inducted into a particular ideology, and adherence to those ideas escalates until the individual inevitably is driven to commit acts of violence. Sometimes terrorism evolves that way, but not often enough, perhaps, even to be considered ‘typical’.
Given that some of the explanations that now deceased Islamist terrorists have given for their attacks relate to material and institutional processes – oppressive foreign policy, military interventions in Muslim countries, economic and cultural imperialism – attempting to tackle extremism by focussing solely on the de-radicalisation of individuals would seem to be as short-sighted as it is partial. As we will argue, the potential for misinformed or even misguided policies to backfire is present, and this may only result in further alienation for those communities routinely subjected to such interventions.
Clearly, there are deep connections between criminal law, policy, and practices. In the realm of counter-terrorism, the laws passed by parliament set in place policies and practices that are implemented by a range of institutional actors, not least the police force. To illuminate this connectivity, we wish to focus on the operationalisation of Section 44 of the 2001 Terrorism Act, recently superseded by Section 47A. At this juncture, it should be noted that police stop and search powers have a long and chequered history in Britain. Stop searches were introduced under the Police and Criminal Evidence Act (1984) in direct response to the problems associated with the use of the ‘sus’ laws (a colloquial reference to legislation that permitted police officers to detain people on the basis of suspicion rather than evidence) that were implicated in a series of disturbances in British cities in the early 1980s. Building on these initial powers, Section 60 of the subsequent Criminal Justice and Public Order Act (1994) allowed a police officer to stop and search a person ‘in anticipation of violence’ provided that the search took place in an area pre-authorized by the police as dangerous or in which violence has occurred or appears likely to occur. Unsurprisingly, widespread complaints have been raised concerning the use of these forms of intervention on black and minority ethnic individuals since their enshrinement in law (see, Bowling and Phillips 1998; Pantazis and Pemberton 1999; Weber and Bowling 2012). The debate continues amongst criminologists concerning the use of these powers. That debate has particularly focused on whether or not the use of these powers is proportional with the ethnic composition of the population as a whole, or whether or not they are used in proportion to the population available for such interventions, for example, young people who may spend time on the streets (see Parmar 2011; Waddington et al. 2004). This debate notwithstanding, the statistics on the rate of stop and search under Section 60 shows that Black people are, on average, around 11 times more likely to be stop searched than Whites (Runnymede Trust 2010). Section 44 of the Terrorism Act (2000) went a step further than the existing Section 60 powers, permitting police officers to search individuals without recourse to ‘reasonable suspicion’ that an offence either has been committed or being planned. Under Section 44, permission was granted to stop and search any person in a designated zone without requiring grounds for so doing. Various data sets indicate that these powers have been inordinately deployed against Black and Asian people, particularly those from Pakistani and Bangladeshi communities (see Kundnani 2009; Pantazis and Pemberton 2009). Uneven application of this legislation by the police has led to claims that the deployment of Section 44 powers has been by racial profiling which criminalizes populations and communities.
Moreover, beyond the formal goal of countering terrorism, political protestors, photographers, journalists, and tourists have all been stop searched under these powers. Interestingly, it was ultimately a case brought to the European Court of Human Rights by Kevin Gillan and Pennie Quinton – a journalist and a peace activist respectively – that led to these powers being declared illegal. Following this judgement, a Counter-Terrorism Review that was commissioned by the Home Office in 2010 reported that Section 44 should be repealed. In response in March 2011, the Government introduced a temporary Remedial Order as a temporary measure which replaced Sections 44 to 47 of the Act with a new Section 47A. Under these revised powers, stops and searches without ‘reasonable suspicion’ of the individuals in question can still take place, but with tighter safeguards. Further to this in 2012, Section 44 was replaced by the Protection of Freedoms Act which permits a senior police officer to designate an area for stop and search without suspicion only if it can reasonably surmised that an act of terrorism is likely to occur. While statistics published by the Home Office in June 2013 indicate an overall reduction in the number of stops and arrests under the terrorism legislation, pre-emptive practices such as these have put a strain on relations between the police and ethnic minority groups (see Spalek and Lambert 2008). Further, the capacity to increase tension rather than decrease the potential for violence should not go unheeded (see Diprose et al. 2008). The damaging effects that stereotypical assumptions have on populations so policed need to be recognised. Further, as Hillyard (2009: 142) sagely notes, the interconnected use of criminal justice through law, policy and practice, is not unique to the contemporary British government, suggesting the broader formation of states that routinely rely on otherwise extraordinary measures:
Increasing use of a wide range of personnel in the exercise of informal control, intensified surveillance of the population, and the widespread shift away from the ordinary criminal law to the use of ‘counter-terror’ law are all essential elements of an exceptional State.
In terms of the evidence discussed here it would be hard not to find agreement with Hillyard’s (2009) synopsis. The implications of this for criminal justice and its wider ethical foundations are far-reaching.
Having considered the role and functions of criminal justice and flagged some of the broad impacts and effects of pre-emptive security policies on the idea and the nature of justice, we wish to end by drawing together some key ethical dilemmas. In so doing, we will be proposing a conceptual apparatus that can assist us in understanding some of the risks that arise in this search for security. Our examination of the use of pre-emption in the area of counter-terrorism reveals a layered presence in the criminal justice system, from the framing of the law to the practices of criminal justice professionals. We have argued that, in each of these layers, the impact on those who have been both the subject and the object of practices of pre-emption (Muslim minority groups) has been profound. However, there are also major issues at stake for the criminal justice system itself that impact on its wider moral role in contributing to the wider social good. In grappling with these issues, we offer three interlinked conceptual devices that can enable us to understand some of the problems that pre-emptive modes of regulation generate: the loss of the principle of innocent until proven guilty; the deployment of the law under a condition of ‘states of exception’ (Agamben 1995); and the law of inverse consequences (the resulting effect of an intervention producing the opposite of that intended).
Liberal democracies have not only favoured the principle of innocent until proven guilty but also fought to defend it as a cornerstone of the criminal justice system. If there is any element of doubt in this regard at a jury trial, the jury is advised by the judge to acquit the defendant. It has already been observed above that the practices of pre-emption, by their very nature, undermine this principle. The tension between guaranteeing civil liberties for all and targeting those thought to be problematic for everyone’s civil liberties is of vital importance in contemporary society. In considering the kinds of developments since 9/11 discussed above, Hudson (2003: 74) remarks:
The balancing of rights has gone: the only rights that matter for most people are the safety rights of selves and loved ones. The sense of shared risk, shared responsibility has also gone: we cope with risk by a constant scanning of all with whom we come into contact to see whether or not they pose a threat to our security, and the only way we can operate this scanning is by adopting stereotypes of safe and risky kinds of people.
As discussed earlier, the logic of trading individual liberties in favour of greater collective security has been a common feature of recent security policy. The discussion above has elucidated some of the problems that this trade-off has engendered for those at the sharp end of policy whose human rights are eroded. These observations ostensibly indicate an unreasonable struggle for liberty for suspected minorities. Yet this struggle in and of itself implies a process of collective loss. In the intermeshing of the legal policies and practices outlined here, justice for all of us is also compromised. This does not only impact on the few, it also impacts on the many. As Smart (1990) cogently argued some time ago, the law, once changed, can serve purposes other than those for which it was intended. We have given several examples of this form of transference here. At a wider level, the bending – and in some cases the violation of – fundamental principles of justice such as habeus corpus is tantamount to the production of what Ericson (2008) has called ‘counter-laws’ that are contrary to the very values that laws seek to uphold. While the search for security through pre-emptive policy has produced deleterious consequences for ‘the few’, the collective loss belongs to us all.
As Lomell (2012) points out, the substitution of a presumption of guilt for a presumption of innocence prior to any act having been committed can result in two other problems: the problem of false positives and false negatives and the problem of intent. The first of these can result in the conviction of an innocent person, and the second can result in a guilty person remaining free. Nonetheless, underpinning each of these scenarios, once the presumption of innocence has been compromised, is the potential for ‘errors’, bureaucratic or otherwise, that may end in imprisonment. The compromise of this principle, of course, impacts on all, not just those deemed problematic. The second of these problems, the problem of intent, denies individuals the capacity to change their minds. Clearly, this is not the place to engage in a knotty legal discussion of intent. Suffice it to say that in order to deem someone guilty it is necessary to establish both mens rea (intent to commit an act) and actus reus (the act having been committed that is against the law). The link between these two is an essential component in order to evidence guilt or innocence. One or the other is not enough. Moreover before any crime is committed (actus reus), an individual can choose to behave otherwise. However, under a pre-emptive regime, these principles are effectively denied. Again, this possibility is one which is denied for all of us, not just those defined and treated as dangerous.
Aside from challenges to the principle of habeus corpus, it is clear that the role of the state in administering ‘justice’ has been transformed in the last two decades. Further, the aspirations and objectives of governments have increasingly informed and shaped criminal justice policy. In reviewing the complex interplay of the different layers of criminal justice, the ‘suspectification’ of particular ethnic populations is a marked feature particularly in the UK but not solely confined to this context (for a more detailed discussion of this see Walklate and Mythen 2015). This is a process of demarcation that in political and policy terms has been and continues to be justified and explained with reference to the ‘exceptional’ circumstances in which we live. Thus, we, the public, are frequently reassured that – given the scale of the threat faced – the price paid by the few is in the interests of the many. The risks to us all are exceptional, so exceptional responses become necessary. Yet, as McCulloch and Pickering (2009) have observed, as time moves on, such exceptional power becomes normalized along with the security practices associated with them (see also Zedner 2009: 122). The question remains: how valid and viable is this kind of response? In addressing this issue, critical legal scholars have looked to Agamben’s (1995: 169) notion of the ‘state of exception’:
The state of exception, which was essentially a temporary suspension of the rule of law on the basis of a factual state of danger, is now given permanent spatial arrangement, which as such nevertheless remains outside the normal order.
Agamben’s notion of the exceptional has been used to understand how it has been possible to create responses to threats that are neither legal nor non-legal – but ensure the continued legal projection of power (Whyte 2010: 150). He goes on to point out:
In advanced capitalist societies, the state of exception has a range of simultaneous functions: as ideological or propaganda supports, as means of expanding or enhancing state security apparatuses, legitimizing colonial reach externally, and so on. But of those functions it is those that are connected to the preservation or deepening of a social order that continually seeks to expand its capacities for capital accumulation.
(Whyte 2010: 150)
It is at this juncture that the messy boundaries between the role of the state and the role of the security industries, in the form of security entrepreneurs, re-emerge. Moreover it is no great surprise to find that those subjected to the processes under discussion here are those who invariably find themselves at the lower end of the socio-economic pile. Indeed, the ‘exceptional’ powers of the state have contributed to the construction of them as ‘police property’ – perhaps better read as ‘state property’ – without recognising the embedded presumptions that such constructions entail, and with little heed to their impact (Walklate and Mythen 2015: 139). There is nothing exceptional in this for those so targeted. As Hillyard (1993) opines, it was ever thus. However, when overlaid with a state-endorsed loss of civil liberties accompanied by a legally endorsed presumption of guilt rather than innocence, the capacity for criminal justice to ensure the moral culture required for its own sustainability is also severely curtailed.
In addition to considering the imperilment of democratic rights and liberties for all raised by the introduction of exceptional measures, we also have to ask what the impact of pre-emptive security policies is likely to be on the populations that are targeted. Do the extending tentacles of the state discipline populations and deter would-be offenders or do they serve to marginalise and alienate? When examining the effectiveness of criminal law in general and counter-terrorism measures in particular, it is the capacity to enhance collective security in the long-term which is crucial. Of course, those in the intelligence services are quick to remind us of their successes in keeping the public safe through revealing foiled plots and thwarted attacks (see Parker 2013). Yet it is clear that particular forms of pre-emptive intervention have served to further frustrate and alienate Muslim minority groups leading to a decline in trust and a fracturing of community relations (see Kundnani 2009; Mythen, Walklate and Khan 2013; Spalek and Lambert 2008). Such circumstances do not make for fertile grounds for information sharing that may help in the fight against terrorism, nor do they bode well in terms of reducing grievances. As Daalgard-Nielsen (2010: 800) reasons, ‘the question of whether anti-terrorism laws have in themselves become a significant factor in violent radicalization in Europe remains an open question – a question with obvious policy implications’. In the light of the thousands of citizens born and brought up in European countries presently choosing to travel to Syria to fight with radical Islamic militia, finding answers to this question becomes all the more pressing. What must be more firmly factored into future discussions about policy-making around the terrorist threat is the possibility that interventions can aggravate rather than reduce the situation and thus increase rather than decrease the risk. Borrowing from the natural sciences, we have alluded previously to such iatrogenic effects as the ‘law of inverse consequences’ (Walklate and Mythen 2015).
In the turn to pre-emption in security policy what is at stake is more than a trade-off between the liberty of the few for the security of the many. Rather, the dilemma is to what extent is it acceptable that the principles of justice for all of us, and by implication the social good of the criminal justice system, be compromised in the interest of states that must be seen to be doing something. The diminishing of this social good for us all has been lost in the concern for justice for the few. Terrorist attacks are always a provocation, but it is the response to this provocation which is critical. As Hillyard (1999) observed some time ago, rather than the prevention of terror, dominant responses by the state seem to have generated the inverse effect: the terrors of prevention. In this chapter, we have been concerned to address the ethical implications of the pre-emptive turn in responding to the terrorist threat for criminal justice.
We have taken the view that criminal justice is a thick public good in which we all have vested interests, particularly in terms of how it is delivered, in order to ensure social justice for us all. Etzioni (2007: 7) reminds us that most people most of the time do what they do in ways that sustain social order, ‘because they believe it is right and just’. In this sense, any criminal justice system performs a vital role in sustaining that moral culture. Arguably such moral culture is the value-glue that binds us all together, socio-economic differences notwithstanding. Criminal justice as a ‘thick’ social good, as suggested at the start of this chapter – along with other institutional features of any society – in terms of its ethics can contribute to or undermine that moral culture. The tendencies we have documented here can, and do, threaten that potential contribution and afford the space in which such moral glue becomes differently informed. It is justice, but not as ‘we’ would like to know it.
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