Defining Miscarriages of Justice in the Context of Post 9/11 Counter Terrorism

Abstract

This paper examines a number of different definitions of miscarriages of justice including a broad and influential definition provided by Clive Walker in the 1990’s that extends miscarriages of justice well beyond factual innocence or even wrongful convictions to include a variety of rights violations and unjust laws. It argues that Walker’s definition applies well to post 9/11 counter-terrorism. Moreover, it raises troubling questions for both criminalization strategies and the use of various alternatives to the criminal law including military and immigration detention and targeted killing. Nevertheless the paper concludes that a Walker’s broad rights based approach to understanding miscarriages of justice has not been embraced in common consciousness. It suggests that the best examples of post 9/11 recognitions of miscarriages of justice fit more closely a more limited factual innocence model that is unsuited to apply to modern terrorism prosecutions and most other forms of modern counter-terrorism. It also concludes that this factual innocence model has focused on innocent rendition victims and innocent victims of targeted killed and has not yet produced recognized wrongful convictions such as the famous Irish wrongful convictions recognized before 9/11 and this raises questions whether post 9/11 counter-terrorism offences have defined innocence out of existence.