Crossing Legal Boundaries in Defence of the State
Edited by Aniceto Masferrer and Clive Walker
Terrorism is one of the biggest problems and challenges a society can face. Its importance is not to be underestimated as it has a huge social, psychological and political influence. Even though there have been some positive developments in recent times concerning this phenomenon – like the declaration of a definitive end to the armed activities by the Basque separatist group ETA (Euskadi ta Askatasuna) in October 2011 – terrorism in all its facets still poses a huge problem. Not only societies and politicians struggle with how to deal with terrorism, criminal doctrine and law also face a special challenge. Therefore, one might rephrase the first sentence of this paper as follows: terrorism is one of the biggest problems and challenges criminal law can face, especially a criminal law code that strives to be governed by the rule of law’s demands for formal certainty and substantive fairness and equality. To illustrate this point one only has to examine current anti-terrorism laws in Europe. Relevant case studies include those of the UK and Spain. In the UK, the Terrorism Act 2006 (TA 2006) introduced new offences that have remained controversial ever since. To name but two, especially problematic are section 1 of the TA 2006 that criminalises ‘encouragement of terrorism’ and section 5 that criminalises the ‘preparation of terrorist acts’. The former – which includes inter alia the concept of the ‘glorification’ of terrorism5 – has been criticised mainly because of its uncertainty and its tendencies to undermine freedom of expression.
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