Legitimacy and State Responses to Terrorism: The UK and France

Contagion, counterterrorism and criminology: The Case of France

“…Indeed, by the time of its amendment under ss. 59-62 of the Protection of Freedoms Act 2012, following a challenge in the European Court of Human Rights, hundreds of thousands of searches had been carried out under this provision without any recorded convictions for terrorism (Hodgson, 2013).…”

“…This offence, introduced in 1996, took the controversial step of autonomously criminalizing participation in a criminal group in relation to terrorism but at a very early stage in the iter criminalis , namely, membership of a group ‘established for the purpose of preparation, characterized by one or more material facts’. It has been severely criticized for its affront to principles of legal certainty as well as the very low thresholds of evidence for establishing participation in such a network (Cahn, 2010; Hodgson, 2013; Human Rights Watch, 2008). As one French judge, interviewed by Human Rights Watch (2008: 23) for its report on French counterterrorism, candidly observed: ‘[y]ou send people to prison in counterterrorism matters for very weak reasons.…”

“…The existence in France since 1986 of a parallel criminal procedure or criminal procedure bis , comprising a series of special procedural rules and diluted procedural safeguards for terrorist crimes, has undoubtedly greatly increased the risk of normalization (Lazerges, 2003). As in other jurisdictions, the extension of special measures is most likely to occur in relation to other serious crimes, particularly organized crime, 5 and it is therefore unsurprising to observe in the French criminal justice system an almost ‘reciprocal’ relation between the two areas, ‘with exceptions in one sphere, seamlessly applying to the other’ (Hodgson, 2013: 17). Following the introduction of wider police powers to search vehicles and residences in the 2001 and 2003 Acts – which, as already noted, applied to both terrorist, weapons and drugs offences – the ultimate fusion between organized crime and terrorism occurred with Act 2004-204 of 9 March 2004 (Cahn, 2010; Hodgson, 2013).…”

“…As in other jurisdictions, the extension of special measures is most likely to occur in relation to other serious crimes, particularly organized crime, 5 and it is therefore unsurprising to observe in the French criminal justice system an almost ‘reciprocal’ relation between the two areas, ‘with exceptions in one sphere, seamlessly applying to the other’ (Hodgson, 2013: 17). Following the introduction of wider police powers to search vehicles and residences in the 2001 and 2003 Acts – which, as already noted, applied to both terrorist, weapons and drugs offences – the ultimate fusion between organized crime and terrorism occurred with Act 2004-204 of 9 March 2004 (Cahn, 2010; Hodgson, 2013). The Act, whose stated aim was to adapt justice to the evolution of criminality, introduced the offence of organized crime not by defining it as such, but rather through the simple listing of 19 qualifying offences, terrorism being the 11th in the list (Oehmichen, 2009).…”

“…This becomes particularly problematic when the sheer scope of application of the law is considered. Referred to by the CNCDH (2016: 18) as, ‘vast, fluctuating and inconsistent’, the highly fluid nature of the definition of organized crime in France means that, as Hodgson (2013: 18) notes, ‘[a] group of boys who come together in order to steal another boy’s bus pass would fall within [it]’.…”