Nudging or Fudging? The UK Courts’ Counterterrorism Jurisprudence Since 9/11

Abstract

Counter-terrorism decisions of senior appellate courts tend to garner headlines and attract international recognition. Explanations of judicial “triangulation” between security and fundamental rights which rely upon such high-profile decisions, however, risk over simplifying the judiciary’s role. Much of the common-law scholarship on the judiciary as a strategic actor has focused on cases concerning prominent executive counter-terrorism measures, including those relating to the United Kingdom’s (UK) employment of detention without trial and control orders. On the basis of decisions like Belmarsh Detainees, the UK judiciary are increasingly cast as strategic actors, “nudging” the executive away from the use of rights-eroding powers. By contrast, despite the importance of the criminal justice systems of these countries in their counter-terrorism strategies, comparatively little attention has been given to how their judiciaries have adapted criminal law principles to facilitate counter-terrorism action. This lack of attention has disguised the degree to which the UK judiciary has acquiesced in the erosion of the safeguards against abuse of executive power contained within the “ordinary” criminal law in the interests of counter-terrorism. Taking criminal justice decisions into account either adds a layer of complexity to accounts of the judiciary as strategic actors or reduces such accounts to incoherence.