Mind the gap: an empirical study of terrorism offences, law-making, and discretion

Abstract

The UK’s counter-terrorism strategy sees criminal law and criminal justice professionals take on prominent roles in the prevention of terrorism. Preparatory and pre-preparatory offences are central to this strategy, and are known for being both very broad in scope and very vague in drafting. These offences leave a lot of scope-defining work to be done by the officials who interpret the law and apply it to specific cases. In this thesis, I seek to clarify the scope, in practice, of a collection of broadly drafted and vaguely defined terrorism offences under the Terrorism Act 2000 and the Terrorism Act 2006: possession of articles, collection of information, encouragement, dissemination, and preparation. In doing so I set out to address a gap in the extant literature which raises a series of concerns about the scope of the offences in practice and their impact, but which largely lacks empirical footing to test these claims.

I frame this gap in the literature as ‘the practice gap’. I use a multi-methods approach to address this ‘practice gap’ by combining interview, doctrinal and archival methods to explore the scope of the offences in practice with a particular focus on the role and impact of discretion and prosecutorial decision-making. I approach my study of discretion drawing on the work of Keith Hawkins and Michael Lipsky, through which I position discretionary decision-making in its micro, meso and macro context and explore how officials shape and define the law and policy which they interpret and apply. This leads me to consider three sub-questions: how prosecutors understand their role in relation to counter-terrorism law and policy, how they interpret and apply law and policy in practice, and the effects thereof in relation to academic concerns in terms of criminal law principles as well as impacts on specific groups of people.

I begin by exploring the role of discretion in law, and how I have approached my research on discretionary practice and decision-making in a context where significant barriers to access impede empirical work. I then proceed to trace the offences from the inception of policy and government strategy through to parliamentary debates, the resultant statutory provisions, and their implementation – in particular in terms of interpretation and application in, and prior to, court. My enquiry offers a peek behind the curtain into the operation of the offences in practice, positioning this in the wider context of UK anti-terror law and policy. I explore and discuss the rise and centrality of mind-set material – a category of evidence which has become increasingly central in terrorism prosecutions which supports the framing of the accused as terrorist or terrorist-affiliated. I discuss how this evidence is seemingly being used to bridge the space between the unclear letter of the law and the mischief aimed at, and proceed to challenge the fairness of relying on this evidence as a means of normatively sifting for cases and selectively enforcing the offences. I focus in particular on the apparent intersection of evidence indicating risk and vulnerability as I shed light on, and problematise, the use of this evidence in practice and suggest routes forward with an eye to reform. My findings also support a greater understanding of the role of discretion and discretionary decision-making in this area of law with implications for how we understand the prosecutorial role generally.