Counter-Terrorism, Human Rights and the Rule of Law
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Counter-Terrorism, Human Rights and the Rule of Law

Crossing Legal Boundaries in Defence of the State

Edited by Aniceto Masferrer and Clive Walker

The initial responses to 9/11 engaged categorical questions about ‘war’, ‘terrorism’, and ‘crime’. Now the implementation of counter-terrorism law is infused with dichotomies – typically depicted as the struggle between security and human rights, but explored more exactingly in this book as traversing boundaries around the roles of lawyers, courts, and crimes; the relationships between police, military, and security agencies; and the interplay of international and national enforcement. The contributors to this book explore how developments in counter-terrorism have resulted in pressures to cross important ethical, legal and organizational boundaries. They identify new tensions and critique the often unwanted outcomes within common law, civil law, and international legal systems.
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Chapter 8: Safety interviews, adverse inferences and the relationship between terrorism and ordinary criminal law

Crossing Legal Boundaries in Defence of the State

Shlomit Wallerstein


A ‘safety’, or ‘urgent’, interview is one where the suspect is interviewed for information that might help the police to protect life and prevent serious damage to property. A senior officer can delay a suspect’s rights to legal advice and not to be held incommunicado in order to enable a ‘safety interview’ to take place and thereby secure public safety in situations of immediate urgency. English law permits the conducting of such interviews under strict conditions both in investigations concerned with ‘ordinary’ criminal offences and those related to terrorism. In practice, however, these interviews are reported as being mainly used in the context of terrorism. The chief difficulty with safety interviews is that when the court wishes to draw inferences, both from silence as well as anything that was said during such interviews, they come up against the defendant’s rights to a fair trial, to access legal advice and against self incrimination. The difficulties arise because safety interviews cross the boundaries from traditional investigative interviewing into arrangements for public safety. It is, therefore, necessary to consider whether these two concepts should always be kept distinct. If, however, the two are not distinct, then the legal system must face up to this transgression and ensure that the law provides a suitable normative framework for those exceptional situations where the functional boundaries are crossed (or mixed). This debate is of further importance because, by law, these arrangements are not limited to terrorism-related offences, and public safety considerations may also arise in a whole range of other cases.

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