Terrorism and the Law – By Clive Walker

Book reviews

Murder, Medicine and Motherhood, by emma cunliffe.Oxford: Hart Publishing, 2011, xiii + 207 + (references + appendix + index) 24pp (£35hardback). ISBN: 978-1-84946-157-3.

The impact of gender role expectations where women are concerned has been ofinterest to various academic fields and has generated a substantial body of literature.Criminologists, lawyers, sociologists, political scientists, anthropologists, historiansand media studies scholars, to list but a few, have utilised the methodological tools oftheir various disciplines to explore how these gendered narratives manifest themselvesand their consequences. A sub-area within this field relates to how the social con-struction of motherhood is invoked in cases where a woman is accused of murderingher children or the children of others, the assumption being that the maternal instinctis innate in all women and that the killing of children is an indication of illness ormonstrosity. Emma Cunliffe, Assistant Professor at the Faculty of Law in the Univer-sity of British Columbia, Canada, is the latest academic to consider this sub-issue bymeans of a detailed study of the Australian case of Kathleen Folbigg in Murder,Medicine and Motherhood (hereafter Murder). What marks Cunliffe’s contribution asa particularly significant one from a legal perspective is her focus on how proofbeyond a reasonable doubt is constructed in a case where medical evidence is incon-clusive. However, before I expand upon this, it is first necessary to provide a briefsummary of the Folbigg case and explain its significance in light of other equivalentcases.

Folbigg was convicted of the successive murder of three of her infant children andthe assault and manslaughter of a fourth in 2003. At death, their ages ranged from 19days to 19 months. All four infants had autopsies performed on them. Two deaths (thefirst and third) were categorised as instances of Sudden Infant Death Syndrome(SIDS). Blame for the second infant’s death was lain at complications arising from thechild’s pre-existing epilepsy. The initial autopsy on the fourth child stated that thecause of death was ‘undetermined’, but it was noted that myocarditis (inflammation ofthe heart muscle) was a possible cause of death. The prosecution argued, despite theabsence of any supporting medical evidence, that Folbigg smothered all four infantsand the main thread of their case was the theory attributed to and propounded bypaediatrician Roy Meadow that a third infant death in a family is a homicide, unlessproven otherwise (Meadow’s Law).1

During a brief period from the mid-1990s to the mid-2000s, Meadow’s Law gainedtraction within forensic pathology. The theory, in particular the statistical probabilitieson which it relied, has since been discredited but while it held sway five womenin addition to Folbigg were charged with killing their children. Three of these cases,R v Clark,2 R v Cannings3 and R v Anthony,4 involved convictions of women before theEnglish courts that were subsequently overturned on appeal on the basis that the

1. Murder, p 54.2. [2003] EWCA Crim 1020.3. [2004] EWCA Crim 1.4. [2005] EWCA Crim 952.

Legal Studies, Vol. 32 No. 1, March 2012, pp. 154–176DOI: 10.1111/j.1748-121X.2011.00222.x

© 2012 The Authors. Legal Studies © 2012 The Society of Legal Scholars. Published by Blackwell Publishing, 9600Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

expert medical evidence that supported their convictions was deficient. Folbigg’sdefence tried to invoke these cases at various points of the trial and appeal. Theyinitially sought in vain to delay the trial for 10 days until the appellate decision inClark was released.5 They also unsuccessfully attempted to rely on dicta from Can-nings on appeal.6 The remaining two cases, neither of which progressed to full trial,are Australian. Charges were withdrawn in both R v Phillips7 and R v Matthey8

because the respective trial judges did not allow coincidence evidence to be put beforethe jury. In Clark and Cannings coincidence evidence that the prosecution sought torely on or had relied on was also excluded.

For Cunliffe the Folbigg case raised a number of questions, in particular how theprosecution sought to prove beyond reasonable doubt that Folbigg killed her fourchildren in the absence of conclusive medical evidence and what role social construc-tions of motherhood played in the weight given to the circumstantial evidence in thecase. She writes: ‘the Folbigg case has the potential to tell us far more about ourcultural expectations of motherhood and the faith we place in the twinned institutionsof criminal trials and forensic science than about Folbigg herself.’9 What she finds istroubling, and supports her belief that Folbigg was wrongfully convicted.10

As noted above, the main thread of the prosecution case was Meadow’s Law. Inthe trial of Sally Clark, Meadow testified that the likelihood of a single familyexperiencing two instances of SIDS was one in 73 million.11 Although he did nottestify in the Folbigg case, the influence of his theory loomed large. In pre-trialsubmissions, reference was made to a report by pathologist Janice Ophoven whereshe stated that the odds of a fourth natural death were one in one trillion.12 Althoughit was ruled by the trial judge that expert witnesses could not testify about theprobability of four successive natural infant deaths in one family,13 the prosecutionskilfully circumvented this ruling by instead asking the expert witnesses whetherthey had ever treated, heard of or come across documented cases of multiple naturaldeaths occurring within a single family.14 All answered ‘no’, and this ‘no’ andwhether it was an accurate assessment of the medical literature formed the basis ofchs 3, 4 and 5 of the book.

Chapters 3 and 4 review medical literature that sought to solve the mystery ofmultiple unexplained infant deaths. They also look at whether it is possible to dis-tinguish between natural but unexpected infant deaths and those that derive fromdeliberate smothering, and whether recurrence within a single family is indicative ofhomicide. Cunliffe found that unless there are other indicators of foul play, medicalscience is unable to distinguish authoritatively between SIDS and homicide when theinfant is under 12 months of age. She also found that there were at least eightdocumented cases involving multiple deaths, the majority of which underwent

5. Murder, p 72.6. Ibid, p 10.7. [1999] NSWSC 1175.8. [2007] VSC 398.9. Murder, p 4, footnote omitted.10. Cunliffe uses the legal understanding of wrongful conviction which is wider than factualinnocence. See ibid, p 13, n 53.11. This testimony was criticised by the Court of Appeal. Clark, above n 2, at [177]–[178].12. Murder, p 27.13. Ibid.14. Ibid, p 75.

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© 2012 The AuthorsLegal Studies © 2012 The Society of Legal Scholars

forensic and criminal investigation without any prosecutions ensuing.15 This notwith-standing, the uncertainty that the medical literature revealed was not reflected in thetestimony presented at trial, which is reviewed in ch 5 of this book.

Before progressing onto why this misrepresentation mattered, I should first note acriticism of chs 3 and 4. It arises, paradoxically, out of one of the great strengths of thebook. Cunliffe has made a significant contribution to the literature in the area byintroducing the concept of double-counting, but such is the potential for the conceptthat more grounding for it is needed.16 According to Cunliffe, double-counting occurswhere one form of evidence is held up as independent validation of another form ofevidence without any recognition that this second form of evidence was in fact basedin part on the first. Medical evidence is generally regarded by the law as being‘untouched by values or social interests.’17 Accordingly the fact that the medicaltestimony in Folbigg’s case appeared to be supported by behavioural and coincidenceevidence put her conviction beyond reproach. The New South Wales Court of Appealwas explicit: Folbigg’s diary ‘lent terrible credibility and persuasion’ to the experttestimony.18 Yet Cunliffe argues that the medical experts drew on this behavioural andcoincidence evidence to help them decide that the children were deliberately smoth-ered when the medical evidence alone could not. For example, she notes that whenvarious specialists testified about the second infant’s death, they gave testimony thatcontradicted the opinions that they had given immediately following his death. Shepostulates that one of the reasons for this change may have been their awareness of thefurther deaths when they testified.19 She notes later that the prosecution’s expertwitnesses were given copies of Folbigg’s interviews with the police and other docu-ments, probably including the diaries, to help them prepare their testimonies.20 Theclearest example is the testimony of Dr Allan Cala, the pathologist who performed theautopsy on the fourth infant. He initially reported that the cause of death for this childwas ‘undetermined’ but that myocarditis may have played a role. He noted in asubsequent letter that he would have given the cause of death as myocarditis had henot been aware of the previous infant deaths in the family.21

The revelation that different strands of evidence can be entwined and therebydouble-counted is a major insight and Cunliffe should rightly be praised for it, but theproblem is that there are gaps in the analysis and these gaps should either be filled oracknowledged. For instance, Cunliffe does not go into sufficient detail about howpathologists conduct caregiving assessments generally or more specifically what thepathology process is in New South Wales. It could be that this information is notavailable – she refers for example to an English study which provided a ‘rare glimpse’into this process indicating the lack of material on point.22 However, given thesignificance she attaches to this practice in her arguments, an acknowledgment of the

15. Ibid, pp 62–67 and 78.16. Ibid, pp 23 and 64.17. Ibid, p 199, quoting S Jasanoff Science at the Bar: Law, Science and Technology inAmerica (Cambridge, MA: Harvard University Press, 1994) p 207.18. Murder, p 64.19. Ibid, p 26.20. Ibid, p 194, n 2.21. Ibid, p 93.22. This study found that the decision whether to classify a death as natural or unnatural relied‘in significant part on a team’s assessment of the caregiving capabilities of an infant’s primarycaregiver, usually the mother.’ Ibid, p 64, discussing P Fleming et al Sudden Unexpected Deathsin Infancy: The CESDI SUDI Studies, 1993–1996 (London: Stationery Office, 2000).

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speculative nature of this analysis would have been appropriate. In addition, a gene-alogy of the concept of double-counting should have been provided. It appears that itis informed by Dorothy Smith’s concept of objectification, yet this connection is notexplicitly acknowledged. The concept of objectification is first mentioned withoutdefinition in ch 4.23 Yet the definition that is eventually provided in a footnote at theend of the chapter – ‘given institutionally authorised status as fact through a processthat conceals the socially constructed nature of institutional knowledge’24 – seems togo to the core of her critique with regard to the double-counting of behavioural andcoincidence evidence through its subsumption into supposedly objective medicalevidence. As such greater emphasis should have been placed on it.

Cunliffe’s concern with regard to the misrepresentation of the medical literatureduring the trial as revealed in ch 5 is two-fold. The first is that it raises the prospect thatFolbigg’s guilt was not proven beyond a reasonable doubt. Her response to this is topropose various safeguards with regard to the admissibility of medical evidence, suchas the requirement that experts need to explain the limits of what they can answer.25

The second concern, considered in chs 6 and 7, is that in the absence of conclusivemedical evidence of homicide, the prosecution and the defence referenced (con-sciously or not) normative understandings of what constitutes a good mother in theirrepresentations of Folbigg. Cunliffe writes:

‘[d]iscourses about proper mothering came to work as a circuit breaker forscience, transferring public focus away from the inability of forensic pathology toexplain a set of infant deaths. A longstanding gap in science could thereby bewritten off as never having been a gap at all.’26

The problem with this strategy, as rigorously detailed by Cunliffe, was that itabstracted the practice of mothering from the social context within which it occurs.Drawing from Chunn and Lacombe’s observation that the trial is a hegemonic processthat ‘actively contributes to the legitimation of a social order’,27 Cunliffe argues thatFolbigg’s trial legitimated a ‘privatised, gendered ordering of childcare responsibili-ties within the heterosexual nuclear family.’28 As such, whether Folbigg was convictedor acquitted, the reliance on the ideology of motherhood by both sides was problem-atic as it glossed over the unequal distribution of parenting labour that it entails.Moreover, the lack of acknowledgment of this unequal distribution meant that certainresponsibilities that were consequent on Folbigg’s status as the children’s primarycaregiver became coincidence evidence that tied her to the deaths of her children, forexample that she found each child when moribund or dead.29 But, as the English Courtof Appeal in Clark noted in response to similar coincidence evidence in that case:‘[c]hildren frequently spend the majority of the early part of their life in the sole careof their mother, and hence it cannot in any way be said to [be] an unusual feature forjust two events to occur when the babies are in the mother’s sole care.’30

23. Murder, p 41.24. Ibid, p 68, n 174.25. Ibid, pp 201–202.26. Ibid, p 37.27. Ibid, p 98, quoting DE Chunn and D Lacombe ‘Introduction’ in DE Chunn and DLacombe (eds) Law as a Gendering Practice (Toronto: Oxford University Press, 2000) p 10.28. Murder, pp 98–99, footnote omitted.29. There were eight factual similarities listed and two medical similarities. Ibid, pp 108 and115.30. Ibid, p 109, quoting Clark, above n 2, at [15].

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In addition to the coincidence evidence that ostensibly linked Folbigg to the infants’deaths, the prosecution used Folbigg’s own words against her. In her diaries, which arethe focus of ch 7 of the book, Folbigg recorded that she was frequently frustrated withthe children and that she resented her husband’s lack of support, in addition to keepingtrack of housework/childcare duties. However, it was to four entries in particular that theprosecution turned. These entries suggested that the deaths of the infants were not dueto natural causes, eg ‘[w]ith Sarah all I wanted was her to shut up.And one day she did’;and ‘. . . I was short tempered and cruel sometimes to her and she left. With a bit ofhelp.’31 However, as Cunliffe notes, despite their unsettling nature, they are not directadmissions of guilt.Yet this is precisely how they were represented by the prosecution,primarily through the conflation of Mark Tedeschi SC’s interpretation of the diarieswith the words themselves. Cunliffe is particularly concerned that this strategy mightconfuse the jurors into thinking that his additions were in fact Folbigg’s own words.This fear, Cunliffe believes, is substantiated by the court reporter’s confused transcrip-tion of his comments. S/he places quotation marks around the quoted excerpts from thediary and the ‘confession’Tedeschi extracts from them.32 I am not entirely convinced bythis line of argument as a typographical error can sometimes be just that and it seemsclear from the quoted extract that Tedeschi is differentiating between Folbigg’s wordsand his own interpretation of them. However, the fact that this technique of modifyingFolbigg’s written words to create a direct confession is replicated by a journalist33 givesweight to Cunliffe’s general argument that a confession, even a manufactured one,served an important social and legal function in the Folbigg case. Socially, a confessionshows that Folbigg recognised that her actions were wrong and thereby acceptedsociety’s moral values. Legally, a confession negates the need for further evidence andthereby ‘manag[es] the fear presented by the revelation that science cannot distinguishbetween natural infant deaths and homicide.’34

Chapter 7 raises important questions with regard to how diaries are to be inter-preted in trials. Cunliffe does not answer these questions, noting that to do so wouldrequire a separate study in and of itself,35 but in raising these questions and highlight-ing the problems they posed in the Folbigg case she presents food for thought. My onecriticism of this chapter relates to an apparent point of self-contradiction. Cunliffeunderstands but is critical of the more nuanced stance the defence took in theirrepresentation of the evidence marshalled against Folbigg, arguing:

‘[a] defence that is predicated solely on holding the prosecution to its burdenof proof may fare badly . . . because it does not provide jurors with an alternativestory about the facts of the case. In fact, adopting this strategy may increase the riskthat jurors will fall back on “prevalent, often erroneous, stereotypical narratives” inreaching their decisions.’36

Yet Cunliffe falls back on this precise narrative in her conclusion to the chapter. Shewrites: ‘[r]eading these entries, it is easy to wonder whether Folbigg killed herchildren. However, to wonder is not to prove.’37 This conclusion fits with Cunliffe’s

31. Murder, p 140.32. Ibid, pp 145–146.33. Ibid, pp 184–185.34. Ibid, p 147.35. Ibid, p 154.36. Ibid, p 150, references omitted.37. Ibid, p 155.



careful delineation of what she means by wrongful conviction38 and by her concernthroughout the book that there was not sufficient medical or other evidence to provebeyond reasonable doubt that Folbigg killed her children, but it does seem odd tocriticise the defence for being in agreement with her. However, as already noted, it ispossible that this contradiction is apparent only. The defence’s arguments weredirected at a particular audience and Cunliffe’s are directed at another very differentone, but if this is the reason for the approach that Cunliffe takes, then it should havebeen stated explicitly.

The final substantive chapter in the book, ch 8, examines the response of the mainSydney newspapers to the case, one tabloid/popular, the Daily Telegraph, the otherbroadsheet/quality, the Sydney Morning Herald. This chapter does not add significantvalue to the text, primarily because it reaffirms what has been found time and againabout the media reporting of crime and how tabloid and broadsheet coverage differs.It also does not seem to fit with the rest of the book, the main focus of which is howreasonable doubt was dispensed with despite the absence of definitive medical evi-dence of smothering. Arguably therefore, ch 8 could have been excluded for greaterthematic coherence. However, that being said, there are aspects of the chapter thatwarrant attention. First, it introduces an innovative technique. Cunliffe directly com-pared the trial transcripts of the case with how that case was reported in the media.39

This allowed her to state authoritatively that the media coverage was not balanced andthat the press coverage seemed to suggest that the evidence against Folbigg wasoverwhelming.40 Secondly, although not expressly considered in the book, Cunliffe’sfindings provide further material for those interested in moral panics and the relation-ship between the media and its audience. She finds that the press seemed moreconcerned with the reduction of Folbigg’s sentence from 40 years with a non-paroleperiod of 30 years to 30 years with a non-parole period of 25 years than the public did.The Daily Telegraph ran a phone-in survey asking readers if they agreed with thereduction and Cunliffe notes that there was a noticeably lower participation rate forthis survey than for others in the same time period and that there had been a smallnumber of published letters following her initial conviction.41 However, it could beargued that the reduction was not a significant one in terms of non-parole period – amere five years – and that may have explained the lack of reader interest in the survey.Finally, as noted previously, reference to a journalist’s editorialising of Folbigg’sdiaries provides further confirmation of the point that Cunliffe makes in ch 7.

In sum, this book makes for a very absorbing but disquieting read and is highlyrecommended. It is of great credit to the author that one is left with the very strongsense that Folbigg has been wrongfully convicted. What is even more upsettingthough, and this is not dealt with by Cunliffe, is the feeling that even if Folbigg isvindicated and released, serious damage has already been done. The post-release lifeof Sally Clark provides the cautionary tale. Released in 2003, Clark died in 2007. Thecoroner found that she had died from alcohol poisoning.42 It was also noted that shehad developed serious psychological problems as a result of her experience of wrong-ful conviction and that she had struggled after her release despite the support of friendsand family. After her conviction, Folbigg was diagnosed with a personality disorder.

38. Above n 11.39. Murder, p 161.40. Ibid, p 158.41. Ibid, pp 159–160.42. F Gibb ‘Grief-stricken Sally Clark “drank herself to death” ’ Times 8 November 2007.

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Cunliffe notes that this ‘was presumably predicated at least in part on her convic-tions.’43 It is to be hoped that a book such as Cunliffe’s will lead to a re-opening of theFolbigg case. It is also to be hoped that should Folbigg be released, she is given all thesupport she needs to reintegrate into society.

dr catherine o’sullivan*

Law and Religion, by russell sandberg.Cambridge: Cambridge University Press, 2011, 216pp (including index) (£19.99paperback). ISBN: 978-0-521-17718-4.

In the twenty-first century religion has become increasingly relevant in Europe, and itsplace within the public sphere has been the centre of ongoing discussion. After anumber of years in which the secularisation thesis was uncontested in some circles,the resurgence of religion in the UK and elsewhere has now become unquestionable.As Russell Sandberg rightly highlights in Law and Religion, debates on the wearingof religious symbols and dress in schools, the relationship between religious libertyand free speech, and the status of Islamic Law and its courts have frequently arisen inrecent years.

Although the last few years have witnessed a remarkable increase of publicationsin this field,44 Law and Religion remains a very young discipline in the UK. This isdifferent from the situation in other European countries, where this subject has beenlong established.45 The Centre for Law and Religion at Cardiff University, to whichSandberg belongs, has played a vital pioneering role in the development and deliveryof courses (both in Cardiff and in other UK institutions),46 scholarship, and researchnetworks (such as the Law and Religion Scholars Network) in the field.47 Many othercentres and research clusters have been subsequently set up at other British universi-ties and this is a testimony to the strength of this discipline nowadays. The presenceof specialist journals, such as Ecclesiastical Law Journal48 and Law & Justice,49 hasalso enhanced this fast transformation. Furthermore, at European and internationallevel, the establishment of organisations like the European Consortium for Church andState Research and the International Consortium for Law and Religious Studies(ICLARS) proves that Law and Religion has a presence worldwide.

43. Murder, p 132, n 144.* University College Cork, Faculty of Law.44. Among others, N Doe Law and Religion in Europe (Oxford: OUP, 2011); J Rivers TheLaw of Organized Religions (Oxford: OUP, 2010); A Bradney Law and Faith in a Sceptical Age(Oxford: Routledge Cavendish, 2009); L Vickers Religious Freedom, Religious Discriminationand the Workplace (Oxford: Hart, 2008); N Addison Religious Discrimination and HatredLaw (Oxford: Routledge, 2006); R Ahdar and I Leigh Religious Freedom in the Liberal State(Oxford: OUP, 2005).45. For instance, Spain and Italy, where Derecho Eclesiástico and Diritto Eclesiastico havebeen taught for decades.46. Some of its members have offered courses in ‘Law and Religion’ in different Britishuniversities. For instance, David Harte has been teaching it at the University of Newcastle fora number of years and I did the same, first in Bangor and from this year onwards, as part of awider course, ‘Modern Constitutionalism’, at the University of Manchester.47. N Doe ‘The first ten years of the Centre for Law and Religion, Cardiff University’ (2008)10(2) Ecclesiastical Law Journal 222.48. Its editor is Professor Mark Hill QC.49. Its editor is John Duddington.



Despite the attention of a number of academics whose numerous and high-qualitypublications have strengthened our discipline throughout the last two decades, themajority of texts have understandably only focused on certain aspects of the overlapbetween law and religion50 and, consequently, students were bound to rely on a widerange of sources which were often unaffordable for private purchase. Sandberg’s Lawand Religion addresses this weakness and students will hugely benefit from thecoherent structure and the comprehensive contents of this book. The book is set tobecome the required reading on most law and religion courses, although practisingand academic lawyers are also natural readers of Law and Religion as it makes severalnew contributions to knowledge. Furthermore, this book does not diminish the sig-nificance of previous publications51 because, as the author himself states, he aims tocomplement, and not replace, previous literature. This is achieved through usefulfootnote references and online resources.

Sandberg’s Law and Religion, divided into ten chapters, provides a thoroughaccount of the legal framework concerning religion in the UK in the twenty-firstcentury. The first chapter, ‘What is “Law and Religion”?’, is an excellent opportunityto explore terminological issues. As this is one of the main problems surrounding thisdiscipline, Sandberg rightly focuses on this question from the outset and rules out theuse of the terms ‘Ecclesiastical Law’ (commonly used in other European countries, egSpain and Italy, but which refers to the legal framework of the Church of England inthis jurisdiction) and ‘Canon Law’ (which deals with the internal laws of religiousorganisations, typically the Roman Catholic Church and the Church of England).Moreover, interestingly, Sandberg argues that the almost unanimously accepted term‘Law and Religion’ is incomplete, as the scope of our discipline goes beyond the studyof the interaction between law and religion. The author states that three areas of studyshould be included within this label: 1. Religion Law (the law of the State or otherpublic authorities with regard to religion); 2. Religious Law (the internal law ofreligious communities, such as Islamic Law or Methodist Law); and 3. the generalstudy of the relationship between Law and Religion. This sophisticated analysis isgroundbreaking and places our discipline in a much more ambitious context.

Chapter 2 is a good analysis of the historical development of religion in the UK,designed to contextualise the analysis of the current law in the chapters that follow. Theauthor goes back to the Norman conquest and explores the response of public authori-ties to religion throughout the centuries. There is an important emphasis on the EnglishReformation and the transition from intolerance and discrimination to religious tol-eration. Sandberg points out the significant differences between a period of tolerationand the positive acknowledgment of religious freedom nowadays. He rightly identifiesthe enactment of the Human Rights Act 1998 (currently contested by some politicalparties and social sectors) as an outstanding landmark in this transformation.

In ch 3 the author returns to terminological matters; however, while the first chapterdealt with the definition of ‘Law and Religion’, the third one discusses the meaning ofreligion itself. Even though Sandberg looks at important classical pronouncements byour courts (Re South Place Ethical Society),52 he mainly focuses on the current

50. I taught ‘Law and Religion’ at the University of Bangor from 2005 to 2010.51. Such as N Doe The Legal Framework of the Church of England: A Critical Study in aComparative Context (Oxford: Clarendon Press, 1996); MD Evans Religious Liberty andInternational Law in Europe (Cambridge: Cambridge University Press, 2008); M Hill Eccle-siastical Law (Oxford: Oxford University Press, 3rd edn, 2007).52. [1980] 1 WLR 1565.

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framework. While he welcomes the fact that the definition of religion is generally notused as a filtering device, Sandberg equally acknowledges that statutory definitions(such as that found in the Charities Act 2006) are partial and simply aim to help thecourts by pointing out some characteristics that a religion may have. In the UK, in fact,there is no list of protected religions as such.

Chapter 4 offers an explanation of the different categories of religious groups in theUK. Despite the fact that the author mainly deals with England and Wales, he alsorefers, albeit briefly, to the situation in Scotland. The question of establishment and itscompatibility with the non-negotiable principle of religious freedom in a democraticsociety is far from easy,53 but the author clearly succeeds in his analysis of the currentposition. Sandberg describes the main features of the models of high establishment inEngland (eg the relationship between the Church and the Monarch, as well as Parlia-ment), but does not underestimate the importance of the low establishment, whichwould refer to the commitment of the Church of England to the daily lives of thecitizens of that nation. The inclusion of the study of the legal framework of the Churchof Scotland, which unfortunately is often neglected in the literature, is to be wel-comed. Sandberg also explains how, alongside these two established Churches, allother religious denominations are non-established and are treated as voluntary asso-ciations. As a result of the doctrine of ‘consensual compact’, religious groups aregenerally regulated by private rather than public law, although there can be public lawrecognition of these groups as it happened with the Methodist Church Act 1976. Thechapter also explains how, historically, English courts have been reluctant to becomeinvolved in adjudicating internal disputes within religious groups and this principle,which Sandberg defines as ‘non-interference’, has meant, in practical terms, that as ageneral rule the variously styled courts and tribunals of all religious communitiesother than the Church of England are not subject to Judicial Review by the High Court.However, Sandberg shows that this non-interference principle is subject to the Forbesv Eden54 exception, according to which courts of the State will exceptionally interveneto enforce the laws of a religious group under two circumstances:

‘1. where there is a financial interest on the part of the secular authorities,because the parties to the dispute have deliberately left the sphere of mattersspiritual over which the religious body has exclusive jurisdiction and engaged inmatters that are regulated by the civil courts, and 2. where the dispute relates to theadministration of property’.

In other words, State courts will get involved if the dispute relates to a civil ratherthan a spiritual matter and in those cases the courts will be bound to apply religiouslaw. Following this principle, our judiciary should refrain from answering questionson religious truths, as this is far from their remit. Unfortunately, this general rule inEnglish law (rightly complemented by the Forbes v Eden exception) seems to beunderestimated by some of the members of the judiciary, who have recently regardedthemselves as sufficiently competent to judge on religious matters. For instance, inPlayfoot v Millais School Governing Body,55 a widely publicised case concerning aChristian girl whose decision to wear a purity ring was in stark contrast with thenon-jewellery policy of her school, the court was prepared to declare that Christianity

53. See J García Oliva ‘Church, State and establishment in the United Kingdom in the 21stCentury: anachronism or idiosyncrasy?’ [2010] Public Law 482–504.54. (1867) LR 1 Sc & Div 568.55. [2007] EWHC 1698 (Admin).



did not require Ms Playfoot to wear a purity ring. This sort of pronouncement, usuallyin relation to Christianity, is deeply suspect because the secular authorities are con-travening a traditional stance (ie non-interference) which had worked well throughoutthe years. Although he is far from uncritical of the law, Sandberg’s account of thetraditional principle of non-interference provides a preferable approach to that takenin relation to recent religious dress symbols. Sandberg closes ch 4 with a short analysisof the Church in Wales, in which he rightly emphasises the hybrid nature of thisdenomination; despite having been disestablished in the first half of the twentiethcentury, the Church in Wales still enjoys some vestiges of establishment. Sandberg’ssuggestion that the analysis of the legal position of the Church in Wales may cast morelight upon the nature of establishment and the legal position of non-establishedreligious groups points to an area where more research is needed.

Chapters 5 and 6 deal with the most important developments in this area in the last15 years: the new understanding of religious freedom as a human right andthe growth of discrimination law to cover religion or belief. As Sandberg states, theHuman Rights Act 1998 has been discussed in a plethora of cases concerning a rangeof religious issues such as corporal punishment, religious dress, purity rings, sacredbullocks and open air funeral pyres. The very thorough discussion of many of thesecases56 is one of the many strengths of this book. The legislative transformationsshould not be underestimated, but in a country like the UK the response of thejudiciary is vital. Following Art 9 of the ECHR, the manifestation of one’s religion orbelief (the forum externum) is qualified and can therefore be limited by the exceptionscontained in Art 9(2). Sandberg explains how the ECtHR has traditionally focusedupon the question of interference – rather than justification – to dismiss claims, andone example of the interference approach has been the use of what Sandberg refers toas the specific situation rule. This principle is triggered when someone has voluntarilysubmitted him or herself to a system of norms, usually by means of a contract. Thisvoluntary submission creates a ‘specific situation’ which means that the claimantcannot subsequently claim a right to manifest their religion in a way which breachestheir contractual obligations. This doctrine has been invoked in the armed forces anduniversities, among other establishments. However, ironically, although Strasbourgseems to be leaving this doctrine behind, Sandberg rightly identifies an undue ten-dency on the part of the English courts to apply this rule and to focus upon theinterference limb instead of looking at justification. Sandberg criticises this tendencyon the basis that focusing on justification would give rise to much more nuanced,sophisticated and respectful judicial decisions. Although the outcome may be thesame at times and some manifestations of religion will be restricted either way, it canbe argued that affirming that issues such as the wearing of religious symbols in publicestablishments is not related to Art 9 (because of the interference theory) is blatantlyunfair. Sandberg accurately states that this undue emphasis on the question of inter-ference, rather than justification, does not adequately protect religious freedom.

Chapter 6 looks into the remarkable transformations that have recently takenplace in the UK in relation to discrimination on grounds of religion. The legalframework (now mainly found in the Equality Act 2010) is duly explained and, onceagain, the author carefully analyses crucial terms in this relatively new legal branch

56. Eg R v Secretary of State for Education and Employment and others, ex parte Williamson[2005] UKHL 15; R (on the application of Begum) v Headteacher and Governors of DenbighHigh School [2006] UKHL 15; New Testament Church of God v Stewart [2007] EWCACiv 1004;R (on the Application of Swami Suryananda) v Welsh Minister [2007] EWCH (Admin) 1736, etc.

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(discrimination law). This is the first in-depth discussion in the law and religionscholarship of religious discrimination since the enactment of the Equality Act 2010.For these purposes, a proper definition of religion, belief, victimisation and harass-ment is key. Sandberg describes the distinction between direct and indirect discrimi-nation and declares that there are fewer cases concerning the former category and itis far more difficult for the claimant to become successful. Many more claims havefollowed the indirect discrimination route and in those situations, in which the claim-ant challenges decisions that indirectly put them at disadvantage because of theirreligion or lack of it, many more citizens have been successful. Sandberg chooses twoimportant areas to illustrate his proposals: working hours and religious dress. Clearlyconnected with the previous chapter, Sandberg differentiates between unsuccessfulclaims, which failed on grounds of justification, and those others which did so, ongrounds of interference. This is to be welcomed. In an innovative way, Sandbergconsiders both Art 9 and the law on religious discrimination as the two pillars ofreligion law and highlights that a detailed scrutiny of the decisions of the courtsseems to suggest that Art 9 is now of little use to litigants in that a claimant is morelikely to be successful under discrimination law. The importance and novelty of thisanalysis makes it, in my view, the core message of this book.

Chapter 7 focuses on religious offences. For many years the maintenance of the lawof blasphemy in the UK, which strictly speaking only protected the Church ofEngland, was a cause of concern and controversy. Despite the fact that the Englishmodel met with the approval of Strasbourg under the widely contested doctrine of‘margin of appreciation’,57 there was a growing unease about its existence. Sandbergexplains the different stages that the law of blasphemy went through until its finalabolition in 200858 but also focuses on the new religious offences, which comprisereligious hatred and religiously aggravated offences. One of the main criticisms thatcould be made to the offence of religious hatred59 is that the excessive emphasis on theprotection of freedom of speech makes it useless. Although Sandberg argues that thisis unproblematic in that the criminal law is usually the wrong vehicle to regulatereligion, many commentators would disagree with this view seeing an important rolefor the criminal law here which is not merely symbolic.

In ch 8 the author discusses the situation of religion in schools. The English andWelsh school system is far from straightforward and Sandberg feels the need toexplain the different categories of schools before looking at those that do and do nothave a religious character. In schools without a religious character in England andWales, religious education (RE) must be provided and the Education Act 1996requires that this teaching must ‘reflect the fact that the religious traditions in GreatBritain are in the main Christian while taking into account of the teaching andpractices of the other principal religions represented in Great Britain’.60 Furthermore,the syllabus must be decided by a Standing Advisory Committee on Religious Edu-cation (SACRE), which consists of ‘representative groups’ and other ‘persons coopted

57. See for instance Handyside v United Kingdom (Application no 5493/72) and the case ofLautsi and Others v Italy (Application no 30814/06).58. See R Sandberg and N Doe ‘The strange death of blasphemy’ (2008) 71 (6) Modern LawReview 971.59. See J García Oliva ‘The legal protection of believers and beliefs in the United Kingdom’(2007) 9 Ecclesiastical Law Journal 66; A Jeremy ‘Religious offences’ (2003) 7 EcclesiasticalLaw Journal 127.60. Education Act 1996 s 375(3).



as members of the council by members of the council’.61 The ‘representative groups’must include ‘a group of persons to represent such Christian denominations and otherreligions and denominations of such religions as, in the opinion of the authority, willappropriately reflect the principal religious traditions in the area’ and, in England,there must be ‘a group of persons to represent the Church of England’.62 Moreover, inall English and Welsh schools there must be a daily act of worship. Furthermore, incompliance with the School Standards and Framework Act 1998, ‘the required col-lective worship shall be wholly or mainly of a broadly Christian character’.63 AlthoughSandberg acknowledges that the above legislation is ECHR compliant, in his view thisdoes not mean it should remain. He comments that the law on collective worship isanalogous to the former law of blasphemy and so should share its fate. Sandbergconsiders that the maintenance of this preference for Christianity is at odds with thenew developments of religion law, but I respectfully disagree with the author in thisparticular issue. The maintenance of a symbolic presence of Christianity does notimply any privilege, it does not give rise to any social concern or alarm and it is amere recognition of the importance of this faith in the shaping of our society. Sometraditions are no longer acceptable and they should certainly go, but this explicitmention of Christianity in the legislation seems to me completely harmless.

In the same chapter, Sandberg discusses the legal framework concerning schoolswith a religious character, usually known as ‘faith schools’. These schools have becomecontroversial in the last few years as some citizens see them as a source of segregationrather than understanding and respect. It could be argued that, in a multicultural society,students should be exposed to members of other faiths and no faith at all. Whether faithschools, which are usually regarded as academically excellent, help towards an under-standing of ‘the others’or, on the contrary, unduly emphasise our legitimate differencesis an ongoing and fascinating debate. In the same chapter, the author looks at indepen-dent schools with a religious character. Sandberg’s calm elucidation of the legalframework in these areas adds light to areas where there is often much heat.

Religious law is dealt with in ch 9. It is clear to me that the author is more of anEcclesiastical than a Canon lawyer (in the continental European meaning of the terms)or in his own terminology, more of a ‘Religion Lawyer’ rather than a ‘ReligiousLawyer’. This, however, is a strength. Law and Religion is a very broad discipline andalthough one can move from one sub-area to another, naturally commentators feel moreinclined to choose one branch and Sandberg has done so successfully in this book.Those seeking a detailed account of Islamic law or the law of the Church of Englandshould look elsewhere. Having said that, this book would have been incomplete withouta chapter on ‘Religious Law’ and therefore the inclusion of ch 9 is to be welcomed.Those of us who regard ourselves as ‘Religion lawyers’ are bound to deal with internallaws of religious denominations on many occasions and a proper understanding of theresponse of public authorities to the religious dimension requires, necessarily, someknowledge of the different religious traditions. The subsection entitled ‘The recognitionof religious law’ is particularly engaging. The hysterical reaction on the part of themedia and many citizens to the very nuanced and balanced lecture delivered in 2008 byDr Rowan Williams,64 the Archbishop of Canterbury, about the recognition of religious

61. Ibid, s 390.62. Ibid, s 390.63. Sch 20.64. See R Williams ‘Civil and religious law in England – a religious perspective’ (2008) 10Ecclesiastical Law Journal 262.

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law shows the strong feelings and misunderstandings that currently exist. Sandbergseeks to contextualise this moral panic by explaining the extent to which English lawalready recognises religious laws and religious courts.

In the tenth and final chapter of this book, Sandberg summarises the findings of hisresearch, highlighted throughout this review, and insists on a crucial idea: that far fromhaving become an exclusively private matter, the public dimension of religion hasgrown considerably in the last decades and there is a crying urge for an interdiscipli-nary analysis of this phenomenon, which should bring together sociologists, histori-ans, political scientists and also Religion and Religious lawyers. Sandberg’s analysisof what he refers to as the ‘juridification of religion’, in particular, should open thedoor to further interdisciplinary research.

As stated earlier, Law and Religion is a very young discipline in the UK, but thework carried out by academics such as Sandberg has contributed towards a fast andimpressive growth. Sandberg’s book is an excellent tool, which suggests many ideas,proposals and conceptualisations that are bound to have an effect on the academiccommunity and students across the UK and elsewhere. In this, his first book, Sandberghas produced an invaluable and remarkable piece which should be highly recom-mended in British universities and to all those with an interest in religion and law,theology, history, political science and sociology. One would like to see future editionsin due course, as the law in this field is changing by the day and a second edition mightusefully contain a comparative element of the situation in other European jurisdic-tions. Writing this book was an ambitious project, and Sandberg should be congratu-lated on his very successful achievement.

javier garcía oliva*

Terrorism and the Law, by clive walker.Oxford: Oxford University Press, 2011, lxxiii + 538 + (index) 15pp (£145.00 hard-back). ISBN: 978-0-19-956117-9.

Since 11 September 2001, terrorism and the legal responses of liberal democracieshave been the subject of intense debate. At the heart of this debate is a question of theutmost constitutional importance: to what extent can or should constitutional normssuch as the rule of law and legality be used to restrain states’ responses to terrorism?

Clive Walker’s Terrorism and the Law is his latest attempt to ‘keep pace with, andto derive meaning from’65 prodigious amounts of complex, and often incoherent,anti-terrorism legislation. In his characteristically forthright manner, Walker describesthe current ‘crop of special legislation’ as ‘unprincipled, incomplete, and disjointed’while also describing our counter-terrorist strategy, known as ‘CONTEST’,66 as ‘clear,clever and comprehensive.’67

* University of Manchester School of Law & Research Associate, Centre for Law andReligion, Cardiff University.65. Terrorism and the Law, at v.66. CONTEST was adopted by the UK government in 2006 and revised in 2009 and isorganised around four principal values; PURSUE, to stop terrorist attack; PREVENT, to stoppeople becoming terrorists or supporting violent extremism; PROTECT, to strengthen ourprotection against terrorist attack; and PREPARE, where an attack cannot be stopped, to mitigateits impact.67. Terrorism and the Law, at vi and p 7.



It is difficult at first blush to see how a clear and comprehensive strategy canhave led to unprincipled, incomplete and disjointed legislation, but the reader isgradually won over by the author’s attention to detail and encyclopedic knowledge ofthe minutiae of anti-terrorism legislation in the UK.

The sheer volume of anti-terrorist legislation introduced in the UK since 2000 (eightdifferent acts) is worthy of note. In chronological order, these are theAnti-TerrorismAct2000, the Anti-Terrorism, Crime and Security Act 2001, the Communication Act 2003,the Civil Contingencies Act 2004, the Prevention of Terrorism Act 2005, the TerrorismAct 2006, the Counter-Terrorism Act 2008, and the Crime and Security Act 2010.68

CONTEST is intricately woven into the discussion throughout Terrorism and theLaw. Part I begins by looking at the meaning of the word ‘terrorism’ in both law andpolitics. Part II looks at the investigation and policing of terrorism offences. Part IIIdeals with the criminal law and criminal process as they relate to terrorism. Part IVdeals with what is described by the author as ‘other legal controls’ (control orders,deportation, and proscription of organisations),69 and Part V reviews the regionalvariations in Northern Ireland and Scotland.

As a starting point the author defines terrorism as follows: ‘terrorism can beconceptualised as a sub-set of political violence – the application of certain forms ofviolence for specified political ends.’70 I remain to be convinced of the utility of thisdefinition for a number of reasons. First, is terrorism really a ‘sub-set of politicalviolence’or can all political violence be characterised as terrorism? Secondly, is it only‘certain forms of violence’that can, at law, amount to terrorism, and if so how should thelaw distinguish between these forms? It is submitted that a better working definitionwould make explicit the link between political violence and the state; it is a rare breedof terrorist that seeks to target an individual, as terrorism, by its very nature, is an attackupon the established order. However, the definition of terrorism is hotly contested inscholarship, law and politics generally and so some reasonable disagreement about thedefinition adopted by Walker cannot be said to be a criticism of the book itself.

What Walker’s definition does do is to highlight the endemic problem faced bylegislators in attempting to define terrorism, let alone draft a coherent legislativeresponse to it. At the heart of this problem is the fact that it is virtually impossible toformulate a value-neutral, non-morally-relative definition of terrorism. Walker recog-nises this definitional problem when he writes: ‘The careers of Éamonn de Valera,Menachim Begin, and Nelson Mandela bear witness to the fluidity of the label.’71 It is,it is submitted, this fluidity that is at the heart of the problem: before a state canrespond to terrorism it must decide what terrorism actually is and why it has decidedto draw the line in the sand between terrorism and other civil disobedience in the placethat it has.

In the Prevention of Terrorism (Temporary Provisions) Act 1989, terrorism wasdefined, rather simplistically, as ‘the use of violence for political ends and includesany use of violence for the purpose of putting the public or any section of the publicin fear.’72 It would appear that the 1989 definition emphasises the purpose of theviolence, rather than the violence itself. By 2006, this definition had altered almost

68. This contrasts with six pieces of UK-wide anti-terrorism legislation between 1939 and1996 when ‘the Troubles’ in Northern Ireland were at their height.69. Terrorism and the Law, at xii.70. Ibid, p 4.71. Ibid, p 4.72. S 20 (1) Prevention of Terrorism (Temporary Provisions) Act 1989.

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beyond recognition. The Terrorism Act 2006, s 1 widens the meaning of the term‘terrorism’ to extend it beyond actual violence to ‘the use or threat of action’, butsurprisingly goes on to restrict the purpose of the action: ‘the use or threat is made forthe purpose of advancing a political, religious, racial or ideological cause.’ It isdifficult but not impossible to envisage circumstances where the use or threat of actionwas not made for one of these purposes, and it is for this reason that it is submitted thatthe reviewer prefers the definition in the earlier Act.

Walker goes on to describe anti-terrorism legislation in terms of its constitutionalsignificance. He argues that liberal democracies committed to the rule of law andconstitutional government must ensure that the overall purpose of anti-terrorismlegislation is ‘the restoration of normal existence without the regular invocation ofspecial powers’, but recognises that ‘models of executive measures have persistedalongside criminal prosecution for all but a few months during the past threedecades.’73 The author’s use of language is of interest here; he uses the Schmittianterm ‘models of executive measures’ to describe responses to terrorism that cannot beaccommodated under the umbrella of the ordinary criminal law, but can still beaccommodated under the umbrella principle of legality. He includes under thisheading detention without trial and control orders, a category of measures which hedistinguishes from the ‘legal back hole’74 that appeared in the USA following 9/11.75

The author makes a valiant attempt to justify such executive measures, arguing that‘a democracy is not a suicide pact . . . exceptional measures have long been recogn-ised as a legitimate reaction of a liberal democracy to clear and present dangers.’76

While there is some merit in this argument, surely the better argument is that suchexecutive measures should be brought within the umbrella of the ordinary criminallaw? Terrorism is a criminal act and demands a legal response not a political one;experience has already shown that politicians cannot be relied upon to use suchexceptional powers only in the circumstances envisaged by parliament during thepassing of the relevant provisions.77

The author goes on to make the rather tenuous assertion that ‘the repeal of allemergency laws is likely to abnegate the influence of the legislative and judicialbranches and to gift absolute power to the executive.’78 If by ‘absolute power’ theauthor is referring to executive use of the prerogative, I am at a loss as to how thiscould ever amount to absolute power. The case-law is quite clear on this point; theprerogative and its exercise is limited by law and parliament may, if it so chooses,curtail or abolish executive prerogative, a position that has existed since 1611.79 It ismuch easier to accept the author’s subsequent claim that legislative responses toterrorism follow a ‘classical’ pattern, namely, ‘a significant attack occurs. Then the

73. Terrorism and the Law, pp 14–15.74. J Steyn ‘Guantanamo Bay’ (2003) 53 International and Comparative Law Quarterly 1.75. Since then the UK Supreme Court has made it clear that Guantánamo Bay detainees areentitled to the protections of Common Art 3 of the Geneva Conventions (Hamdan v Rumsfeld(2006) 548 US 557) and at least some constitutional rights (Boumediene v Bush (2008) 553 US723).76. Terrorism and the Law, p 16.77. In October 2008 the Anti-terrorism Crime and Security Act 2001 was used to freeze theBritish assets of the Icelandic bank Landsbanki following the collapse of the Icelandic financialsystem; could this truly be said to be an exception to the norm, a state of affairs so dangerousas to justify the use of anti-terrorism legislation?78. Terrorism and the Law, p 23.79. Case of Proclamations (1611) 2 Co Rep 74.



government reveals its proposals . . . warns parliament of the need for a firm anddecisive response, and condemns any opponents as “weak on terrorism”’80. There is aclear dividing line between these two statements; the first asserts that parliament ispowerless in the face of the executive, the second asserts not that parliament ispowerless per se but that it abdicates its constitutional responsibility to restrain theexecutive in times of national crisis. Neither of these positions sits comfortably withthe idea of constitutional government, particularly when history has shown reluctanceon the part of the judiciary to review the executive use of the prerogative wherematters of national security are involved.81 The problem here is not simply of sepa-ration of powers in the abstract, but the real danger that if the law is not used in aproportionate manner, ‘the likes of the Terrorism Acts will foster the very extremismthey were meant to prevent.’82

In Part II Walker turns his attention to terrorist investigations, a core component ofthe CONTEST strategy given its recognition that good intelligence is ‘vital to defeat-ing terrorism.’83 This Part provides a detailed analysis with three sub-sets of powers(including relevant statute and jurisprudence): (1) powers allowing access to, andsearch of, documents and places; (2) powers relating to surveillance; and (3) powersrelating to ‘all-risks policing.’84 What is startling are the sheer volume of provisionsthat are now in force and the unclear role of the law in regulating their use. Walkermakes this point clearly when he writes, ‘there is much intelligence activity which,while not outside the law, does not produce any transparent legal product.’85 In essencethe author argues, again in terms reminiscent of Carl Schmitt, that terrorist investiga-tions are an example of how and why anti-terrorism law must fall outside of theumbrella of the ordinary criminal law. He argues that terrorist investigations are notprimarily about obtaining evidence for a criminal prosecution, but are much moreconcerned with the monitoring and disruption of terrorist activities.

Part II also deals with the legislative regime regulating the disclosure of informa-tion about terrorism. In an approach reminiscent of George Orwell’s 1984, the currentlegislative regime turns ordinary citizens into state informers, not as a matter ofindividual conscience but under duress of criminal sanction. Under s 38(b)(2) of theTerrorism Act 2000 it is an offence if a person ‘without reasonable excuse, fails todisclose relevant information about terrorism.’ This provision is remarkable in that itimposes liability for an omission; the offence can be committed through total inac-tivity or by partial suppression of information. Such a provision is far wider than theadverse inference that may be drawn from silence under ss 34 to 37 of the CriminalJustice and Public Order Act 1994. The defence ‘without reasonable excuse’ containedin s 38(b)(2) is as problematic as the section itself. Walker highlights a number ofcircumstances in which this defence proves to be controversial. First, where there is aclose personal relationship between the person involved in terrorism and the person

80. Terrorism and the Law, p 30.81. Council for Civil Service Unions v Minister for the Civil Service [1985] AC 374. Cf Thereis a view that this might be changing; that courts might be becoming more assertive. See forexample F de Londras Detention in the ‘War on Terror’: Can Human Rights Fight Back?(Cambridge: Cambridge University Press, 2011).82. Terrorism and the Law, p 47.83. Home Office ‘Countering International Terrorism: The United Kingdom’s Strategy’ (Cm6888, London, 2006) para 65.84. Terrorism and the Law, p 56.85. Ibid, p 108.

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with knowledge of it, should ‘personal ties yield to the public interest’?86 Not accord-ing to the government: a 2000 Home Office circular states that ‘Having a legal orfamilial relationship with someone does not constitute immunity from the obligationto disclose information’87 and a number of successful prosecutions have followed.88

Secondly, it is unclear whether the defence impacts upon legal privilege. Walker notesthat the current advice to solicitors from the Law Society (that ‘it is proper for a lawyerto advise a client on how to stay within the law and avoid committing a crime, or towarn a client that proposed actions could attract prosecution, and such advice will beprotected by privilege’) is yet to be tested.89 Thirdly, it is unclear whether or not theprivilege against self-incrimination provides a reasonable excuse for non-disclosureand, fourthly, there is no exception provided for investigative journalism as thebedrock of a democratic society; this is surely a matter of considerable topical interestgiven the remit of the ongoing Leveson Inquiry.

Walker criticises s 38(b)(2), justly it is submitted, for two reasons. First, hewrites that ‘there is no clear evidence that it has achieved its central goal of increas-ing the flow of information to the police, and it seems improbable that it will everdo so’; and, secondly, he argues that ‘insufficient account has been taken of thevalue of free reporting and comment on issues as important as terrorism.’90 Theauthor argues that, rather than encouraging the flow of information, our currentcounter-terrorism surveillance and intelligence regime threatens individual humanrights and ‘discourage[s] community trust and willingness to cooperate.’91 This ishardly to be surprising: the idea that terrorists or their supporters would be encour-aged to abandon terrorism and become state-informers on the back of s 38(b)(2) issimply misguided.

Walker then turns his attention to the most politically sensitive aspect of anti-terrorism law and policy, namely the arrest, detention and treatment of detainees.The key statutory provision is this regard is s 41 of the Terrorism Act 2000, whichprovides, ‘A constable may arrest without warrant a person whom he reasonablysuspects to be a terrorist.’92 Worryingly the protections offered by s 28 of the Policeand Criminal Evidence Act (PACE) 1984 do not apply to arrest under s 41.93 Theauthor offers two competing assessments of s 41. On the one hand he argues that, froma statistical point of view, the criticisms of s 41 are unfounded, as most arrests underthe section are based not upon suspicion of ‘terrorism’, but upon suspicion of aspecified arrestable offence, albeit that many of those arrests do not subsequently lead

86. Ibid, p 115.87. Home Office Circular 7/2002, p 5.88. R v Girma [2009] EWCA Crim 912 and R v Abdul Sherif [2008] EWCA Crim 2563.89. Available at http://www.lawsociety.org.uk/documents/downloads/dynamic/practicenote_terrorismact2000.pdf, p 8.90. Terrorism and the Law, p 126.91. Ibid, p 139.92. The meaning of ‘reasonably suspects’ was considered by the ECtHR in O’Hara v UnitedKingdom App no 37555/97, 2001-X in which it was held that ‘facts which raise a suspicion neednot be of the same level as those necessary to justify a conviction, or even the bringing of acharge.’ The ruling of the court in O’Hara must surely stretch the definitional bounds of thewords ‘reasonable’ and ‘suspicion’ almost to breaking point.93. PACE 1984, s 28 requires that the detained person be informed of the reason for theirarrest as soon as practicable, whereas s 41 Terrorism Act 2000 simply requires that the detaineeis informed that they are being arrested on suspicion of ‘terrorism’.



to prosecution. On the other hand, he argues that s 41 can be said to afford ‘excessiveand oppressive powers’ to those involved in its application, particularly when theexercise of those powers is not subject to the ordinary safeguards contained in PACE1984.94

Walker then suggests that these powers pose a real risk of (i) a miscarriage ofjustice95 and (ii) undermining community relations through ‘institutionalised racism;suspects used to be detained ‘primarily because they [were] Irish’,96 and are nowdetained primarily because they are ‘Muslim’.97 The latest available statistics showthat between 2001 and 2008, 91% of those convicted of terrorism offences in the UKclassified themselves as Muslims.98 The power of detention subsequent to an arrestunder s 41 departs considerably from the PACE norms. The police may detain asuspect for up to 48 hours without need for reference to any judicial authority andunder Sch 8 detention can be extended up to 28 days from the date of arrest.99 Equallyas worrying as the length of the permitted period of detention without charge, is thatbetween 2001 and 2009 only two applications for warrants of further detention wererefused upon application to the relevant judicial authority.

In Part III, Walker turns his attention to the criminal law and criminal process asthey relate to terrorism through the PURSUE part of CONTEST. Successive gov-ernments have claimed that ‘prosecution is – first, second, and third – the govern-ment’s preferred approach when dealing with suspected terrorists’.100 Walker arguesthat this criminalisation approach ‘logically demands that terrorists should not betreated as offenders or prisoners with political motivations which might mark themout as deserving special status’,101 but surely this is exactly what is achieved both byprosecuting such offenders with ‘special offences’ under anti-terrorism legislationand by classifying terrorism itself as a sub-set of political violence?102 Walker rec-ognises these problems when he writes that, although the modifications to the crimi-nal justice system brought about by anti-terrorism legislation have been ‘peripheral’,the:

‘very incorporation of the term “terrorism” into the formulation of policepowers and crimes inevitably emphasises that the offender has a political orideological motivation to cause harm . . . persons subjected to special policingpowers, special crimes and special disposals will not readily accept their depictionas “common criminals,” nor will the communities to which they belong.’103

94. Terrorism and the Law, p 153.95. Sir J May Report of the Inquiry into the Circumstances Surrounding the ConvictionsArising out of the Bomb Attacks in Guildford and Woolwich, Final Report (1993–1994 HC 449)para 21.8: ‘If all the safeguards of PACE are necessary to avoid miscarriages of justice then itmust be recognised that in terrorist cases greater risks of injustice are accepted than in theordinary course of criminal cases.’96. P Hillyard Suspect Community (London: Pluto Press, 1993) p 7.97. Terrorism and the Law, p 153.98. Lord Carlile Report on the Operation in 2008 of the Terrorism Act 2000 (London: HomeOffice, 2009) p 66.99. Terrorism and the Law, p 154.100. T McNulty Hansard HC Deb, vol 472, col 561, 21 February 2008.101. Terrorism and the Law, p 203.102. For examples of ‘special’ offences see Terrorism Act 2000, s 54 (engagement in weaponstraining); Terrorism Act 2000, s 56 (directing a terrorist organisation); Terrorism Act 2000, s 57(possession of items for terrorist purposes).103. Terrorism and the Law, p 275.

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However, what is clear is that this ‘focus on the Old Bailey rather than Belmarsh’104

is much to be preferred to the alternative approach of executive measures. Walkersuggests that to avoid undermining this criminalisation approach, among other things(i) prosecutors should consider ‘as a priority charges under “normal” offences – aprinciple of “normalcy” and (ii) the courts should ‘recognise that they are on their ownpatch . . . they must act as prime guardians against unwarranted intrusions in theindividual rights of suspects.’105

In Part IV, Walker considers what he refers to as ‘other legal controls’, namelycontrol orders, deportation and exclusion in relation to individuals and proscription oforganisations. The author describes these ‘other legal controls’ as executive measuresthat reflect the political reality of a conflict or clash of priorities between nationalsecurity on the one hand and individual rights and procedural fairness on the other. Hedescribes the advantage of executive measures as stemming from them being ‘civil’ asopposed to ‘criminal’ in nature. The advantage to the state of such executive measuresis clear: ‘the more exacting standards of criminal process under Art 6 of the EuropeanConvention’ do not apply. The primary purpose of such executive measures is thusdescribed as ‘to secure an outcome favourable to the executive and better protect theassets of the state and the safety of the population.’106 The question that remainslargely unanswered is at what cost?

In the concluding section, Part V, Walker turns his attention to other jurisdictions.What follows is not a comparative study of the anti-terrorism provisions currently inforce in other jurisdictions (the law of states including Australia, Canada, Ireland,France, Germany and Spain is considered at various points throughout the book),but a discussion of the regional variations in law in Northern Ireland and Scotland.The jurisdictional question of particular interest to the reviewer was that arisingfrom the Glasgow airport bombing of 2007. Common law requires that an offencebe prosecuted within a jurisdiction where much of the actus reus took place. In thiscase, much of the planning occurred in London but the attack itself took place onScottish soil. Walker writes that ‘the prospect arose that the attacks could not betried conveniently together in either Scotland or England.’107 The result was theCounter-Terrorism Act 2008, s 28 which provides that for specified terrorismoffences committed in the UK, proceedings may be undertaken at ‘any place’;an interesting legislative solution given devolution and the growing calls forindependence.

At the beginning of the book, Walker writes that ‘A law academic could enjoy afulfilling but hectic career devoted entirely to the consumption of the prodigiousamount of laws and public policy which has been fashioned in response to terror-ism’108 and this is exactly what Walker has done. Terrorism and the Law is a welcomeaddition to the literature in this complex and controversial area of law and is made allthe more readable by the author’s forthright manner; there is no other academic in theUK today that can rival Walker’s encyclopedic knowledge of this most important ofsubjects.

james roebuck*

104. Ibid, p 252.105. Ibid, p 252.106. Ibid, p 299.107. Ibid, p 255.108. Ibid, p v.* Lecturer, Aston Law, Aston University.



The Boundaries of the Criminal Law, edited by ra duff, lindsay farmer, semarshall, massimo renzo and victor tadros.Oxford: Oxford University Press, 2010, x + 261 + (index) pp (£50 hardback). ISBN:978-0-19-960055-7.

Should ‘we understand the criminal law as one technique amongst others in the state’stoolkit for the control of behaviour, differing from other techniques only as saw differsfrom chisels’109 or does the criminal law have a distinctive character or distinctive aimsof its own? If the former, we are not really asking about criminalisation in particular,but about coercive regulation more generally: ‘we must ask what ends state regulationshould serve, and then – as a quasi-technical question – which of the availabletechniques are likely to be most efficient in serving those ends in different contexts.’110

However, if the criminal law is not just one technique for the regulation of behaviouramong others, then it is worth asking ‘what kinds of conduct should be subject to thedistinctive mode of control that is the criminal law.’111 This question, or, perhaps, thesetwo versions of the question, are clearly about the boundaries of the criminal law anddirectly animate most of the entries in the collection. In what follows, I will highlightsome of these entries.

In the Introduction, the editors outline the framework within which most of thefollowing chapters are located. The tone is pretty much conceptual and methodologi-cal, as the authors spell out the nature and scope of the criminalisation question. Thetheory of criminal law they have in mind is a normative one. This, however, is not tosay that only the conceptual methods typical of analytical philosophy are deemedappropriate; quite the contrary. Historical and interpretative methods feature just asprominently in this collection. In fact, not only do we find chapters stemming mainlyfrom specific disciplinary standpoints such as philosophy, history, comparative law,and law and technology, but also chapters that directly engage different disciplines(see for example, Lindsay Farmer’s entry discussed below).

The Introduction also usefully summarises the state of the art in the theory ofcriminalisation. The stage is set around the harm principle and the growing sense ofits demise. Against this backdrop, some alternatives are briefly sketched includingforms of legal moralism powered by a single master-principle, and, then, thosepositions according to which ‘decision about criminalization, even at the first “inprinciple” stage, can only be made in a piecemeal way that cannot be captured by anyneatly structured set of principles.’112 Although some philosophers would baulk at theidea that a normative theory worthy of its name may expressly fail to be structuredaround neatly defined principles, this is certainly an important possibility to explore,not only in light of the demise of more structured theoretical alternatives but also inlight of the real world of criminal practices.

It is an informed view of the latter, and in particular of US criminal procedure, thatanimates Carol Steiker’s piece. Steiker notices how some of the main criminalisationtheories are wrongfully addressed univocally to the legislatures. The latter ‘do notwholly determine the contours of the criminal law, nor do individual legislatorsimagine or hope that they do.’113 Steiker then proposes to shift the focus onto other

109. The Boundaries of Criminal Law (hereafter Boundaries), p 5.110. Ibid.111. Ibid, p 6.112. Ibid, p 21.113. Ibid, p 28.

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discretionary actors such as police, prosecutors, juries, sentencing judges, paroleboards, and executives exercising clemency and pardoning powers. If there are con-cerns with overcriminalisation or, more precisely, with overpunishing, one (largelyunexplored) way to address these concerns is to reinforce the discretionary veto ofthese actors. Steiker’s prudential account of mercy is intended to do precisely that.

Sitting right at the boundaries of English criminal law today one can find preventiveorders. In a nutshell, violations of these orders may result in full-fledged criminalsanctions (including incarceration) without the possibility for the offender to usecriminal procedures in his defence. What is more, the orders normally forbid indi-viduals from engaging in behaviour that is not otherwise criminal. Two essays in thecollection, A Duff’s, and AAshworth and L Zedner’s, deal with this important topic atsome length. Rightly so, one would add, for this is a perfect subject for sharpening ourintuitions about what it is that makes the criminal law the appropriate kind of measurefor the regulation of behaviour.

The topic of the appropriate scope and nature of the criminal law is also taken upat length by V Tadros’ ‘Criminalization and regulation’, which contains a number oforiginal views. Tadros defends an instrumentalist but non-consequentialist account forthe justification of punishment and, contrary to contemporary trends, doubts theimportance of condemnation as part of the justification of punishment. Most interest-ingly, however, he works on the distinction between punishment, which primarilyinvolves the idea of making the offender suffer, and penalties, which ensure fairnessin the distribution of resources. This distinction provides a basis to determine thescope of the criminal law, which is and ought to be about punishment rather thanpenalties. An upshot of Tadros’ instrumentalist view is that punishment is imposed onpeople as a means to prevent further wrongdoing by others (provided that the con-straint on treating people in that way is lifted because of their wrongdoing). This view,however, is at some level not in line with growing evidence from psychology, whichshows that even those who expressly define themselves as consequentialists, tend topunish as retributivists.114 Obviously, this is not as such enough of a ground to dismissTadros’ view. Yet, too large a discrepancy between what the people, on the one hand,and the state, on the other, are in the business of doing when punishing, may beproblematic for the implementation of any criminalisation theory.

J Stanton-Ife’s entry, ‘Horrific crime’, deals more directly with the question of thenormative principles that ought to be employed in setting the boundaries of thecriminal law. He argues that neither the harm principle, nor the Kantian maxim thatproscribes treating people merely as means, can be appropriate grounds for thecriminalisation of horrific crimes such as murder, torture, rape, and maiming. He alsothinks that these crimes cannot be distinguished from regular crimes by appealing tothe idea that they involve the setting back or violation of particularly importantinterests or rights. Instead of violating the rights of persons, horrific crimes violatepersons themselves, in that they involve the crossing of boundaries that play animportant role in defining their victim’s selfhood. One initial problem with Stanton-Ife’s approach is the very idea that actions such as murder, rape, maiming, and tortureare the appropriate object of feelings of horror. The problem is that the criterion fordetermining which instances of these feelings are appropriate (their so-called formalobject) is never clearly spelled out. From the text, one evinces that as we experience

114. See for example KM Carlsmith, JM Darley and PH Robinson ‘Why do we punish?Deterrence and just deserts as motives for punishment’ (2002) 83(3) Journal of Personality andSocial Psychology 284.



horror we evaluate the situation as involving the idea that something very badhas occurred (and, I would add, that the bad that has occurred cannot be repaired orrestored).115 This seems on the right track and yet, at the same time, it may be anundesirable feature for Stanton-Ife’s account, for it seems to take his account closer tothe harm principle, which he considers to be essentially irrelevant to our understand-ing of the legitimate criminalisation of ‘horrific crimes’. But why would a characteri-sation of horror in terms of badness take the account closer to the harm principle? Thatis because just as the idea of badness is at the core of these feelings, it is also at thecore of the idea of harm and, hence, of the harm principle. If I understand Stanton-Ife’s view properly, however, I can imagine on his behalf a response along these lines.Appeals to harm, although not incorrect,116 are not what ultimately explain the badness(and wrongness?) of such crimes; it is rather the fact that they are violations of thevictim’s body and self that does that work. With that explanation in hand it would beotiose to appeal to the notion of harm.

I will end this review with a quick mention of the more historically informed essaysin the collection, namely M Dubber’s and L Farmer’s. Dubber traces the developmentof the concepts of public and private law from the Roman to the Modern period, withparticular attention to the way in which the criminal law placed itself between publicand private law. In brief, public Roman law is based on an administrative or ‘police’model geared towards the protection and promotion of the welfare of the state. Romanpublic criminal law concerns itself with acts that affect the operation and administra-tion of the Roman state. The state has practically limitless disciplinary powers likethose of a pater familias over his household. Crimes, in this view, ‘are offences againstpatriarchal sovereignty and their punishment a discretionary reassertion of that sov-ereignty designed to affirm the (quasi-)householder’s superior power vis-à-vis theoffender.’117 Traces of this conception are clearly to be found in modern criminal law.A number of offences make reference to what may be considered ‘public interests’:offences against the existence or stability of the state, offences against public admin-istration, and offences against public order and decency. The victim of crime here isthe state and its officials. The sovereign state literally takes offence at the violation ofits commands, and is free, but not required, to reaffirm its authority for any violationof ‘its’ norms. With the advent of modernity and the rise of the autonomous individual,however, the idea of the equality of governor and governed was posited. The ‘police’model of the criminal law can no longer be coherently held and it becomes urgent tounderstand what the ‘publicness’ of the criminal law may entail outside its originalRoman conception. Providing such understanding is what Dubber somewhat hastilysets out to do in the last few pages of his article.118

The object of Farmer’s critique is an approach, common to a number of currentphilosophers of the criminal law, according to which crimes are special kinds of moralwrongs. Their legal wrongness is established from there, independently from thesocial, legal, and political practices and institutions that they inhabit. On thisapproach, we must have some account of ‘how we should move from the concept ofa moral wrong to an account of legal wrongs, that is to say, from moral theory tocriminalization.’119 Farmer, however, argues that this move is not easily done. He

115. Boundaries, p 141.116. Ibid, pp 160–161.117. Ibid, p 197.118. Ibid, pp 210–213.119. Ibid, p 216.

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makes his point, inter alia, by showing how both the structure and substance of whatcounts as a criminal wrong has significantly changed in line with major cultural, legaland socio-economical shifts. Farmer concludes by envisaging two broad methodologi-cal approaches to criminalisation: we could either ‘accept that there is some sort ofunchanging moral concept of wrong, but that its legal content is continually changing’or, more radically, ‘that particular moral concepts of wrong themselves change overtime’.120 While Farmer thinks that the former approach would have to operate with anidea of moral wrong that is too ‘remote and general to be of much assistance indeveloping an account of criminalization’, all he has to offer to those who consider theother option is that they ‘need to understand more how our conceptions [of moralwrong] have come about.’ Although Farmer has ably demonstrated that this under-standing will undermine some commonly held assumptions, such as the idea that thereare ‘core’ or paradigmatic crimes,121 one would have wished to hear more about whatelse follows for one’s normative theory from the fact that positive moral concepts andlegal wrongs are the subject of change through time.

All in all, this collection is highly recommended and readable. It contains a wealthof generally highly focused ideas right on the topic of its title. It will surely be mosthelpful to those who already have an interest in the topic of criminalisation but theframing in the Introduction means that the material it contains makes this collectionalso accessible to those with no previous interest and expertise in this area.

raffaele rodogno*

120. Ibid, p 237.121. Ibid, pp 217–221 and pp 230–233.* Philosophy, Aarhus University.



Documents

Terrorism and the Law – By Clive Walker