The Separation of the Investigatory Powers in Terrorism 

Introduction

This dissertation will primarily focus on the investigatory powers given to law enforcement agencies to control terrorism. In doing so, the author will discuss landmark attacks such as the 1996 Irish Republic Army bombings, 9/11 , 7/7 bombings and more recently, ISIS attacks and the subsequent effects of such attacks on the creation and development of legislative provisions. Whilst considering the aforementioned, this dissertation will also assess the developments made within modes of terrorism such as the use of social media and the impact this has had at a national and international level. In order to fully comprehend the effectiveness of investigatory powers given to law enforcement agencies, this dissertation will be divided into four chapters. It will then conclude that enforcement agencies do not have sufficient investigatory powers to deal with terrorism for the reasons discussed herein.

Chapter one will focus on the definition of terrorism and the uncertainty surrounding the term despite its archaic existence. It will first consider the impact of the Irish Republic Army (IRA) on terrorism provisions within the United Kingdom and discuss the manner in which the concept of terrorism has evolved. The Terrorism Act 2000 currently defines terrorism as; ‘the use or threat of action designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public ’ and ‘the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause ’. Although this definition is widely accepted amongst several jurisdictions, the author will consider the challenges faced in the application of this definition through an analysis of case law such as R v F and R v Gul . Here, courts sought to clarify the legislative definition to ascertain the stance adopted by courts within the UK, the application of such provisions and the international implications. This chapter will also focus on the criticisms made by academics in relation to the above.

Chapter two will discuss the powers bestowed upon law enforcement agencies through legislative provisions such as the above-mentioned Terrorism Act 2000, Terrorism Act 2006, Police and Criminal Evidence Act (PACE), Counter Terrorism and Security Act, Investigatory Powers Act 2016 and various other provisions. This chapter will explore the ways in which the provisions are implemented on a regular basis to control the threats received within the United Kingdom both covertly and overtly through various agencies, so as to enable the author to establish the effectiveness of investigatory powers. For example, whilst stop and searches are common methods known to members of the public, national security agencies such as the Secret Intelligence Service (SIS), more commonly known as MI6, work through an international forum, ‘operating within a strict legal framework’ reporting directly to government ministers. The former MI5 Director General, Sir Jonathan Evans, acknowledged ‘risk can be managed and reduced but it cannot realistically be abolished ’ however, the current threat level on the United Kingdom (UK) remains severe suggesting a failure within the system to adequately utilise resources and measures to reduce the overall risk.

The penultimate chapter will explore the developments within terrorism which can be associated with the challenges faced by law enforcement agencies in dealing with terrorism. As stated by Combs (2016), ‘a modern era of terrorism has begun at the end of the twentieth century ’as terrorist groups’ were now advancing ideologies through the use of technology, gaining social prominence. In particular, ISIS utilised these means as a way of recruiting, training and carrying out terrorist attacks internationally. The concept of social media as a means of radicalisation has been further explored in the work of academics such as Robin Thompson and Md. Sazzad Hossain and will be further discussed within this chapter. This chapter shall aim to provide the reader with a clearer understanding of the developments within the modern era of terrorism, drawing a distinction with conventional terrorism. It will also examine the current legislative provisions.

To establish the authors claim as set out above, the final chapter shall entail a detailed analysis of the submission as a whole. It will consider the definition of terrorism to determine whether the broad nature of the definition presents challenges in effectively utilising investigatory powers. It will further assess legislative provisions to determine whether law enforcement agencies have sufficient power, in particular, when addressing the modern era of terrorism and enhanced use of technology. To conclude, the author will demonstrate that despite having several legal provisions, the system fails in preventing attacks and the threat of terrorism within the UK.

The Foundations of Domestic Terrorism

Acts of violence on a national level have played a crucial role in determining the generalised notion of ‘terrorism’, more specifically, acts of violence within Ireland. Prior to the establishment of the Irish Free State, civilians partook in national movements such as the ‘White Boy Movement’, dating back to the 18th century, as a means of achieving political and social agendas. The Irish community soon after witnessed the establishment of a nationalist party, the Irish Republic Army (IRA), who successfully removed the British rule over Ireland. However, the division of the Irish Republic Army has presented to be a challenging area till present day. It is important to draw a distinction between the ‘Official IRA’, who have adopted less confrontational and peaceful means, and the Provisional IRA, who have continued to use widespread violence resulting in several fatalities. In the early 1990’s, the Provisional’s were superseded by the Real IRA.

For the purpose of clarity, the author’s primary focus when discussing the acts of the IRA herein will be in regard to those conducted by the Provisional IRA. This chapter will demonstrate such agendas were often achieved through the use of violence and instilling fear within a targeted section of society and in doing so, contributed to the development of the current definition of terrorism.

The Role of Domestic Terrorism in Establishing the Irish Free State

The ‘White Boy Movement’, although not significant when considered alone, can be said to demonstrate the archaic existence of ‘terrorism’ as mentioned in the introductory section of this submission, a view supported by Clive Walker.

In 1761, Ireland witnessed a major outbreak of ‘Whiteboyism’ in which working class civilians partook in agrarian protests in an attempt to prevent the enclosure of common land. In pursuit of this, members of the movement, also known as the ‘levellers ’, employed guerrilla tactics as a means of threatening and intimidating land owners. This included the use of threatening letters, the destruction of property, open fire and assaults on individuals opposing their ideologies. In instances where the aforementioned means were less fruitful, the levellers resorted to assassinations and in some instances, buried ‘those who did not comply with orders ’. In achieving their aims, the effects of the movement were described as having caused ‘… infinite damage in the country ’.

It is evident from the above that violence has been used as a means of achieving political and social agendas for centuries and in particular, within Ireland. Whilst the ‘White Boy Movement’ was not labelled a terrorist act, the reader will note from the definition noted above, the elements of ‘action for the purpose of advancing ideological cause’ is a significant theme in the actions taken by those accepting ‘Whiteboyism’. In any event, the attacks conducted by the IRA hold more prominence in both establishing the Irish Free State and the concept of terrorism.

During 1881 and 1887, Ireland became the home of yet another republican movement , the Irish Republican Brotherhood, more commonly known as the ‘Fenians’ , who were committed to achieving the Irish Free State and removing British imperialism . Academics such as Thomas Bartlett more accurately described the aim as forcing ‘England to withdraw from Ireland by holding British cities to ransom’. This movement was soon after superseded by ‘Clan na Gael’ which resulted in an uproar of fear specifically within civilians and law enforcement agencies from 1883 to 1885 as the parties further pressed for the establishment of the Irish Free State.

On 14 January 1881, England witnessed its first dynamite attack on Salford barracks which resulted in four injured civilians and soon after, the death of a young boy aged seven. This marked the beginning of what became known as the ‘Dynamite War’ given the use of dynamite around England. During the course of the movement, town halls, police headquarters and the London underground became primary targets although the above-mentioned groups were not always successful in carrying out such attacks. Leading examples of the Fenians failures can be seen through the attempted bombing of the City of London Mansion House on 16 March 1881 and 12 May 1882 which failed to explode on both occasions due to devices being inadequately built.

Nonetheless, one of the ways in which the movement was successful in instilling fear was through attacks on the Monarch. Such attacks were often politically motivated and greatly concerned with issues within Ireland, as can be seen through attacks carried out on Queen Victoria. The first attack, commissioned on 29 February 1872, was conducted by a Fenian identified as Arthur O’Connor who demanded the release of fellow Fenians who had been imprisoned during the course of the movement. Whilst Queen Victoria suffered no harm on this occasion, the second attack demonstrated the high level of commitment Fenians had in securing Irish independence. On 2 March 1882, following the commencement of the ‘Dynamite war’, a second attack on Queen Victoria was pursued as she boarded her train at Windsor. Roderick MacLean, the second assailant, open fired at the carriage and was later attacked and disarmed by civilians. Although the Queen did not suffer any injury, this attack was considered to have ‘challenged law and order throughout the kingdom ’. It can be argued that the republican movement remained successful in challenging law enforcement agencies particularly through the years of 1883 to 1885 where Britain was subjected to an influx of both successful and unsuccessful dynamite attacks.

Similarly, various attacks can be said to hold substantive significance in ascertaining the impact of the Dynamite War on terrorism, predominantly those carried out by the Clan-na-Gael. For example, on 20 January 1883, the republicans were successful in commissioning coinciding terror attacks on Glasgow Corporation’s Tradeston Gasworks, Buchanan Street Station and Possil Street Bridge. Even with the latter attack being considered a failure, the nature of the attacks was reported as the ‘town being laid siege to by terrorist ’. On 15 March 1883, dynamite bombs exploded at the Times Office and Whitehall simultaneously, targeting a range of civil service agencies including the Home Office, Foreign Office and Local Government Board. It has since been reported that the latter attack was heard approximately forty-six miles away. Having considered the nature of this attack, it is evident that the implications of the attack proved to be yet another challenge for the government in maintaining law and order. One can suggest this was due to the increasingly violent nature adopted by the republicans in achieving their political agendas within Britain and the element of surprise in the attacks commissioned. In any event, one could also suggest that the law enforcements’ inability to implement security measures was evidence of the overpowering nature of the IRA.

In April 1883, parliament enacted the Explosive Substances Act which held any individual who maliciously caused any explosion through the use of an explosive substance, endangering life or property, guilty of an offence . However despite its enactment, the dynamite attacks continued throughout the nation including an attack on Charing Cross and Praed Street station causing approximately fifty casualties. The attacks on London Underground caused extensive structural damage as was seen on 26 February 1884 following the attack on Victoria Station. The attack on 30 May 1884 on Scotland Yard has been said to have caused the most political harm as per academics such as McConville. This was due to the IRA successfully targeting the special Irish branch as a result of which, several offices and records were destroyed. Many of these documents were in relation to Irish revolutionary conspiracy theories which had been gathered during the conflict.

The final successful dynamite attack was labelled ‘dynamite Saturday’ which took place on 24 January 1885. The republicans successfully attacked Westminster Hall, the House of Commons and the Tower of London causing excessive damage at the House of Commons all within minutes of one another . Fortunately, despite the magnitude of the attack, there were only four civilian casualties. This was considered one of the greatest attacks given its historic and touristic location .It is evident that the nature of the attack was successful in instilling fear amongst civilians of all ages and in demonstrating the republican’s capabilities.

The aforementioned attack also resulted in enforcement agencies such as the Police and Criminal Investigation Division being criticised for ‘tolerating terrorism’ and lacking intelligence. As a result, twenty-five Fenians responsible for several dynamite attacks we arrested in addition to the perpetrators caught during the course of the war. This concluded the dynamite war. A further success followed in June 1887, where agencies were successful in disrupting an attack due to take place at the Queens Jubilee by arresting two of the three perpetrators. Additionally, forces in Liverpool successfully seized documents and weapons which were intended to commission further attacks and contributed to comprising the organisation as a whole.

Following the dynamite war, another attempt was made in establishing the Home Rule through the Government of Ireland Act which sought to establish an independent parliament, permitting governing bodies to make legislative provisions for all matters concerning Ireland .Whilst civilians and the IRA interpreted the bill as receiving national independence, Dicey described such independence as ‘a half-way house to separation’ .Nonetheless, as a result of the war against Germany, a Suspensory Act was passed preventing its enactment .

The conflict within Ireland escalated particularly in the spring of 1916, despite Britain’s ongoing conflict with Germany. In April 1916, through the use of German firearms and explosives, 13,000 revolutionary volunteers seized towns around Dublin in an attempt to prevent British armed forces from entering the capital which had been occupied by a further 3,000 volunteers . This became known as the Easter rising which consisted of six consecutive days of violence resulting in approximately 500 deaths, the execution of 16 leaders, 3,000 arrests and the declaration of Martial law . The rise in Irish nationalism thereafter could be attributed to the actions taken by the British forces when regaining control over Ireland. In the general elections of 1918, the nationalist part of Sinn Fèin won 73 of 105 seats allowing them to pursue independence. The death of two Royal Irish Constabulary (IRC) officers at the hands of the IRA marked the beginning of the Irish war of independence.

In the fight of self-determination, the IRA continued to target the IRC which led to the death of approximately 500 officers so as to enable them to acquire artillery supplies prior to attacking the British Empire. Given the historic violence, the IRA found themselves scarce on supplies and seized weapons where possible. The British response however, was militant as the declaration of Martial law was extended across Ireland while placing immense pressure on the IRA. As a result of the armed forces, twenty IRA members died across Ireland. They were also held liable for the attack on Cork, deliberately setting buildings alight and attacking civilians. However, the use of guerrilla warfare allowed the IRA to attack British soldiers particularly through the use of flying columns. The element of surprise and the transitional nature of the tactic prevented militants from responding in a proportionate and effective manner.

The ongoing conflict continued to deplete financial and social resources as a result of which the British government and Sinn Fèin began negotiations. In 1921, the Anglo-Irish Treaty declared Southern Ireland the Irish Free State, though Northern Ireland remained a part of the United Kingdom. This resulted in increase hostility and violence towards Britain and a greater number of fatalities as will be evidenced below.