#14821 - Security Policing And The Right To Life - Criminal Justice, Security, & Human Rights

Introduction:

• The policies relating to the use of lethal force can cover a wide variety of situations (routine police procedure vs. activities to prevent major terrorist attacks)

• If shoot to keep policies in the context of anti-terrorism are no longer to be considered exceptional, there are questions to be raised about how to legitimate such measures in a way that conforms to the RoL (rather than opting out of it)

The RoL: the argument is there needs to be a system of law in place in order to authorize use of lethal force

• Campbell argues that a legal positivist construction of the RoL can be used to generate a strategy that afford effective and democratically legitimate modes of protecting and promoting defensible conceptions of rights to life in the counter T context he proposes that a SoP is required in a system which holds the executive to account in terms of democratically enacted laws by courts whose duties are confined to applying specific laws to concrete situations defined in terms amenable to objective assessments by courts through evidence based DM = endorsing normative legal positivism and excluding HR’s constitutionalism

• In relation to defensible uses of lethal force for counter T purposes departing from those applicable to other spheres of policing, he argues this could be accommodating by limiting the applicability of uses of lethal force to periods of terrorism-defined states of emergency, whose authorization requires court approval based on positivist rule of law standards this provides a way for morally legitimate authorization of counter T use of lethal force which can be accommodated within a constitution of democratic ruled governance

• ***NOTE: link to Gross here are we within or outside of the law?

• Schmitt (Nazi philosopher): liberal states are undermined by the fact that liberal democratic states retain the power to suspend the constitution and rule by emergency powers highly discretionary shoot to kill policies involving powers not normally exercised in standard police practice could be an example of this sort of lawlessness

• On the other side of the debate is the argument that even a grave emergency cannot warrant the exercised of unlimited and legally unsupervised discretionary coercive power shoot to kill policies just like all official policies need to be subjected to a regime of legitimate law

• In response to Gross – proposal is undermined by failing to realize that it involves judicial constraint of executive action being bypassed at the very time it is most important

• Theory: prescriptive legal positivism – normative thrust is that there are major benefits to be derived from adopting an aspirational model of law; the focus is on formally good rules and a SoP

• Under this theory, there is no assumption that whatever is democratically decided is morally right – it generates a prima facie political obligation independently of the content of the decision in question

Preventing terrorist carnage

• Are the rules of engagement/police guidelines for the use of firearms relating to STK capable of being expressed in terms that can be clear guides can be useful in the moment of action and objectively adjudicated after the event?

• Broad principles might be clear (eg. SD) but there are particular needs for clarity/specificity in rules that are to be applied in the heat of dramatic events – if we rely on concepts such as reasonableness or proportionality to set the standards this is a drafting failure

• On the other hand, the rules will need to be followed in dramatic and fast moving circumstances but we shouldn’t forget we are talking about personnel who should have been trained thoroughly in this area

• The rules in the AT context are likely to require significantly different conduct because of the potential extent of harm to third parties, the fear and alarm caused by terrorism to entire populations, the suffering caused by the economic damage that results from terrorist acts, the extended indiscriminatory aggressive motivation of terrorism, the complexity of the calculations of risks involved in taking pre-emptive action, the evident nature and extent of the limitations to civil liberties in counter T tactics

• The De Menezes shooting supports the argument that post 9/11 there is a different style of policing emerging

• Positivist responses to these differences?

• Careful articulation of a distinct set of rules – making allowances for greater risks involved and difficulty of knowing whether or not the target persons are a major danger

• EG. There might be less reason to give as much priority to police safety, who might be expected to take greater risks with their lives in this context

• In this case, we might reasonably expect to see more tolerance of false positives, more acceptance of superior orders and a looser definition of necessity and less reliance on absolute rights in policy directives

• What matters is the nature and extent of the potential damage that might be perpetrated by the target

• Note the vague and open-ended definitions of T problematic for positivism

• The content of these rules in the AT context are likely to generate anxiety on the part of civil libertarians since the suggestion is that the rules would anticipate less protection for suspects and increased likelihood of abuse of counter terror powers in the context of police activities which is exacerbated by the pressure on police to be seen as decisively acting in these scenarios

States of emergency

• If the circumstances justify a different set of rules, one obvious path for the legal positivist is to work at getting the special rules required into as good formal shape as possible

• However, it would appear there are some grounds for acknowledging that at least in some respect, operational directives are likely to be too loosely worded and discretionary to meet the positivist standards of clarity/decisiveness

• A further move therefore is to make the application of these formally unsatisfactory rules conditional on the prior existence of an officially declared state of emergency

• Suggestion: the precondition to civil liberty threatening rules should require the declaration of a state of emergency on terrorism grounds this takes some of the vital decisions out of the heat of the moment the occasions to use lethal force will be in the cauldron, but the assessment of the possible outcomes of T can be subject to measured consideration

• A possible objection: declaring a state of emergency in within the power of the executive and therefore open to abuse but emergency provisions could be precise in their requirements and subject to judicial oversight

• Benefits of declaring a formal state of emergency:

• Avowal that the measures are exceptional and likely to be temporary or subject to review

• The requirement that objective evidence be presented that there is a de facto emergency

• The fact that it can operate in tandem with the requirement that the Parliament make a similar judgment after having had the opportunity to challenge such information and evidence laid before it by the government

• The legislature can clearly identify what is to count as an emergency in the legislation – what constitutes an emergency can be precisely articulated and applied to a particular situation

• The court can then objectively judge whether these conditions exist as defined in state without having recourse to moral considerations

• All this must be put into the context of the wider debate concerning whether courts or legislatures are the better path for effectively protecting rights in the T context

• Dealing with the fundamental RTL with respect to suspects and victims and those involved in counter T organisations

• This ought to be subject to the strongest form of judicial review available

• Some argue in emergency situations, the executive is better placed than the judiciary – the argument is that the judiciary is slow and lacks information the critique of this position is that political and legal controls in times of emergency should not be alternatives but supplementary

• But the critiques miss the role of the courts they assume that HR’s judicial review is what courts can offer and assume we are dealing with moral judgments with proportionality being desirable

• The argument is that the impact of the court would be better being derived from a more traditional administrative form of judicial review, turning on the black letter...