Prosecuting terrorism: secret courts, evidence and special advocates. The panoply of challenges facing criminal justice, the United Kingdom perspective

Abstract

ABSTRACT Crimes such as terrorism pose some of the biggest contemporary challenges to criminal justice systems across the world. Systemic reaction in preventing such criminality raises numerous legal and political issues, for instance, cross-jurisdictional collaboration, investigation and prosecution and of course the erosion of civil liberties such as the right to privacy. This article explores two current criminal justice challenges posed by terrorism: the successful prevention, prosecution and management of perpetrators and matters relating to due process and fairness. The idea of a National Security Court (NSC) or ad hoc NSC is developed around the criticisms levied at the use of secret courts and Diplock trials, the rigorous testing of evidence and special advocates in the United Kingdom. The evidence used to prosecute such criminality is explored, taking motivation from Foucault’s ‘panopticons’ and Benjamin’s ‘crystal constellations’ to create ‘coincidental forensics’, where fragments of evidence from criminality are brought together to complete a picture. The overarching aim of this article is to highlight some of the contemporary challenges facing criminal justice in balancing a set of complex competing interests in relation to terror crime.