Terrorism/Crime/Murder - Semantics?

Deane,

Nobody here is "rushing" into legislation drafting.

First let's see if we can RECOGNISE/IDENTIFY a difference between a murderer and a terrorist, ie does a difference exist.

I think think it does. What about you?

Whether a Parliamentary Draughtsman can then capture these differences in words that CANNOT be misinterpreted is another question. Which we can come to later.

Cheers

Don

quote:

Originally posted by andy c:
Sorry, Deane. I was adding more to my post.

Which Govn't don't you trust, the UK one or the NZ one, or both?

I have doubts about any person, body or thing which holds authority anywhere in the world.

Does that sound extreme? I agree with J. Ralston Saul that doubt is the only human activity capable of controlling the use of power in a positive way.

andy c

Glad it amused you. I wasn’t aware of the change in the Theft Act, but then I haven’t done any criminal stuff since I was an articled clerk (which is more years ago than I care to mention) and not much then: a few drink/driving cases, one ‘doing a runner’ from a restaurant and one memorable one where my guy was charged with blackmail, perjury and an attempt to pervert the course of justice. I was quite looking forward to that one – and then the police dropped the charges!

Certain cases just stick in the memory (Donoghue v. Stephenson, Hadley & Baxendale, Wagon Mound No. 2, Carlill v. Carbolic Smoke Ball … and not forgetting the splendidly titled Tsakiroglu v. Noblee Thorl GmbH) – and the Collins case is one of them. Mind you, I’m pleased that I was able to recall the year (1973), more or less.

Another bit of memory work: for some reason the name of Roskill LJ (presumably just Roskill J then) springs to mind as the judge in the Collins case. If Deane F is going to read it, I’ll be grateful if you could confirm whether that’s correct.

Getting more serious for a moment … I’m with Deane F in thinking that existing criminal law is more than adequate to deal with terrorist offences – at least insofar as concerns defining murder, assault, etc. and prescribing sanctions and penalties. Of course, a terrorist incident that kills 50 at one time is perceived as being more heinous than the ‘normal’ one-off murder but … murder is still murder (and the terrorist incident is one murder fifty times over) and the nature of the incident and attendant facts are all taken into account on sentencing and punishment.

I can see a theoretical difference as regards intent. The ‘spur-of-the-moment’ murder (domestic argument, jealous lover, drunken fight, etc.) and even the pre-meditated murder directed at one person (insurance money, perceived insult, business rival, etc.) seem somehow less morally reprehensible than the terrorist group that plots and plans for months to kill en masse and probably means to do so repeatedly. But does there need to be a legal distinction (or at least one that does not already exist)? The intent of all is still to kill … and from the victim’s perspective the result is the same. It seems to me that this is more of a sanction/sentencing issue.

I suspect the question has more to do with prevention – and particularly prevention of terrorism and police powers. In the case of a ‘spur-of-the-moment’ murder, where the intent is formed and the act done in the space of minutes or even seconds, there is not much that can be done in the way of prevention. With terrorists, however, the planning and preparation can take months or years and prevention is a serious consideration.

The problem is then one of balancing civil liberty against public safety and interest. I don’t think any police force is going to complain about being given more powers (stop and search, removal of the right to silence, detention without charge, access to bank & financial records, etc.) and I often get the feeling that governments revel in the opportunity / excuse to meddle more and more in private affairs.

The paradox is that in order to protect our liberty, the government argues that it has to diminish the self-same liberty. To safeguard our rights and our way of life, we end up losing many of those rights and edging towards totalitarianism. How far does this have to go before the terrorists can claim a technical win?

Deane F mentioned Northern Ireland – and it’s a good case in point. The “Diplock Courts” and other measures of the 1970s/80s rode roughshod over individual rights and liberties and achieved … nothing, really. I’ve lived in Northern Ireland, on and off, since 1995 (and my wife has lived here most of her life) and I’ve had the experience of being stopped and questioned by army patrols. It’s not nice.

Before that I lived in the West Bank of Palestine and I’ve seen, at first hand, how they go about combating terrorism there. Not nice to the nth degree.

So, how far do you go in protection of the greater good, by legislation or otherwise, if the effect of such protection is to diminish or even destroy what made that ‘good’ in the first place?

Dan

Whilst I share some of your concern, it beclomes more grey as to what you do with persons found to be funding terrorism, or providing premises etc for some future act of which the intended victim/time/place is not yet know.

In order for an attempt you need to do something that's more than meremy preparatory to the substantive offence, even if that offence is impossible to complete due to unknown circumstances.

I can see where you are coming from...

quote:

But does there need to be a legal distinction?...... The intent of all is still to kill .. and from the victim’s perspective the result is the same. It seems to me that this is more of a sanction/sentencing issue.

Dan, Deane,

This is at the heart of a very serious issue and not one to be glossed over at this fundamental stage.

Terrorists set out to terrorise. Murderers don't. So YES there does need to be a legal distinction. That doesn't mean it will be simple, or easy (the UN couldn't agree on what constitutes terrorism......no surprises there)

To lump them both together simply because they both usually end up with dead people, is simply cutting corners (gross understatement!!). I get the impression that you would both find it convenient to avoid the distinction between the different "motives" or "intents" of these two types of criminal?

The motive of the terrorist is to terrorise (for change or revenge etc). That should be his crime. Murder is simply one of his means.

The murderer has completed his task when he has a dead body.

Society is entitled to ask that they be treated differently. Grasp the principle first.

Don't avoid the issue simply because a few power-crazy polititians/judges/policemen take advantage of badly drafted new/old legislation. Ensure we understand the crime, then draft good new laws accordingly (or use existing ones sensibly)

Cheers

Don

PS. yes, I appreciate that your interpretation of "sensible" probably wouldn't align with Mick Parry's version. I think this has something to do with democracy and freedom...

quote:

Originally posted by Don Atkinson:
I get the impression that you would both find it convenient to avoid the distinction between the different "motives" or "intents" of these two types of criminal?

Don

I have tried to give the impression that I'd like some discussion in a wider arena than this about the issues. Perhaps I have failed?

You make good points about the differences between terrorism and murder.

Deane

quote:

I have tried to give the impression that I'd like some discussion in a wider arena than this about the issues. Perhaps I have failed?

I appreciate that, but.....

A common failing in any problem-solving excersice is that everybody jumps in at the start with "solutions". This is what Dan and Andy are doing already.....and (typically) they are almost nit-picking over the relative trivialities of a small selection of existing laws, trying to convince themselves (and others) that these laws can/can't be applied.

The succesful way to solve problems is to define the problem, identify the ROOT causes or root issues, figure out what the options are for dealing with the root causes/issues, chose the best option(s), then draft implementation laws/procedures that hopefully stand the best chance of succes.

Of course, we don't have a "facilitaiter" to control/guide the problem-solving here. But it's probably worthwhile being able to recognise which stage of problem-solving is being invoked, when all stages are running in parallel.

But since its "not-for-real" I won't get hung-up about it........

Cheers

Don

Don

The way you model the sequence of problem solving is interesting and I will have to give it some thought.

I guess my approach is different. I apply scepticism as part of my approach and divide it into three parts: the problem ; doubt, enquiry, dialogue, discourse; the solution. If the doubt part is done well the solution will naturally present itself. Probably the only part that is different from your approach is an emphasis upon scepticism when looking at the options.

The discourse part of the approach in societal and legislative matters is extremely important. We rely a lot on the news media for discourse on these matters and I don't see a lot of it at the moment. It worries me.

Deane

Don,

You are quite right to mention problem solving...
Deane Implies some of the solutions may not be needed, but what we don't know is what 'scanning' for the relevent problem has been done, and exactly what 'analysis' has been done of the results of the 'scanning', either. Hence we are discussing 'reaction'...

I mentioned in an earlier reply the new legislation may be due to hole that have been found in existing legislation by the 'scanning' agencies involved...

Have you been watching movies Andy?

Please, what is this "scanning" business you talk of?

While one hates to interrupt your legalese huddle... applying legislation to ex-human mincemeat is not apt to be very productive.

What is needed is to greatly increase the chances of the terrorist being caught before he/she can blow themselves (and others) to pieces.

What you do with them when you have them safely disarmed and in custody is then open to further discussion.

If you think that setting penalties for terrorism is going to affect their behaviour or thinking one iota is simply ignoring the facts.

Redneck reactionary nonsense doesn't interrupt anybody's legalese huddle.

Deane,
I watch loads of movies ta!

The SARA model is a basic problem solving model. Scanning is the obtaining of any relevant info pertaining to the problem that needs sorting out. You then analyse what you have found - if you haven't found enough to move onto the reaction stage you go back and do more scanning.

A vague example would be crime in a certain area - you'd look at what is happening, including location. You'd look at what has been done before to combat it and how tose results show etc.

Another simple model is Past, Presnet, Future.

I know you think I am evasive re answering questions but If you require any more detail than this I will try to provide it.

regards

andy c!

sitting on the fence as usual!

andy

Somebody should start a systems dynamics thread.

In fact, I think what happens in a democracy as far as problem solving goes is quite organic. There's mimesis but I can't quite put my finger on what it is.

Deane

Deane,
your use of words is very good, but I don't know some of them! I'm a bit of a thicket!!!

Does not make me a bad person, tho!

Systems Dynamics is the study of systems with feedback. I knew somebody who had a doctorate in the subject. It's a little known field here in NZ but it fascinates me - from memory my friend's doctoral thesis studied public health and psychiatry and the way the outcomes affected practice - something like that anyway. Google the phrase and you'll get straight to the orgs homepage.

Mimesis is the mimicry of biological phenomena - it can be a way of modelling a social phenomena like the spread of religion ie: like a virus.

The use of problem solving can be sporadic and results poor if not done properly - there are loads of variable as you can imagine, especially in my line of work.

andy c!

Do you see your role as that of a "problem solver" Andy? I ask merely for information - I'm not setting a trap.

Not setting a trap? has something changed???

Yes we do problem solving on various levels all the time - if done properly and structured it yields good results...

quote:

While one hates to interrupt your legalese huddle...

What is needed is to greatly increase the chances of the terrorist being caught before he/she can blow themselves (and others) to pieces.

Nime, You could be getting closer to what I have in mind.


ISTM that the problem includes:-

we don't know (or can't agree on) what a terrorist is
We don't know (or can't agree on) who is a terrorist


Is it better to allocate (large) resources to catching terrorists (i agree with you on this)
or (relatively small) resources on punishing them?


Do we need new laws to make it easier to catch them
and find them guilty (eg on the balance of probability rather than beyond all reasonable doubt)
Will this alienate people who would otherwise be against the terrorists


As I said before, nit-picking the finer points of existing (national) law STM to be trivial compared to the problem. But on subject of legalese, if there is ANY doubt about the sufficiency of existing law, draft out specific new ones, try them out in court on a few trivial cases, and modify as necessary.....

Cheers

Don

Don, Nime

I can't help thinking of the Indonesian bomber and his elation at being sentenced to death in an Indonesian court.

Deane

quote:

I can't help thinking of the Indonesian bomber and his elation at being sentenced to death in an Indonesian court.

perhaps we could ask some of our arab neighbours how they would punish terrorist offenders?

Yes - perhaps we could get some advice from them on how to treat our women too? <irony>

Apologies for the late return to this thread. I’m working flat out on a deal that completes in less than 2 weeks and can only dip in and out when there’s a lull – like now …


Don

I want to get this straight in my mind. According to you, I am (i) glossing over a serious issue, (ii) cutting corners, albeit a gross understatement [I’ll see your two exclamation marks and raise you one more], (iii) conveniently avoiding distinctions, (iv) failing to grasp the principle, (v) avoiding the issue, (vi) jumping in with “solutions”, (vii) nit-picking over relative trivialities and (viii) trying to convince myself, and others, of something or other. Did I miss anything?

With all due respect, this is highly presumptuous on your part; some might say to an extent bordering on insult.

It might be that I am simply approaching the subject from a different, but equally valid, angle. Alternatively, it could be the case that I have already worked through the process you advocate, reached my conclusions and moved on to a later phase.

If I understand you correctly, your position can be summarised as: (i) there is a difference between terrorism and murder, (ii) that difference lies in motive and intent, (iii) there should be a legal distinction to recognise this difference, and (iv) we (in general) should follow a process to reach a solution, starting with defining the problem and continuing as you have already stated. Please feel free to correct me if I have misunderstood anything.

To me, this says that you think something needs to be done but you are still at the stage of principles, theories and ‘processes’. I think that, sooner rather than later, consideration has to be given to the practical realities. If the distinction cannot be properly and meaningfully made and enacted, if it serves no useful purpose or if the cost to society of acting on it is unacceptable, then this needs to be taken into account in whatever process is employed.

Time to grasp the nettle.

I accept, unequivocally and unreservedly, that there is a world of difference between a terrorist and an ‘ordinary’ murderer – and that the difference lies in motive and intent. An ‘ordinary’ murderer is not a terrorist; merely a murderer. A terrorist who causes death is both a murderer and terrorist. I see no reason why the terrorist killer should not be charged, tried and punished for the crime of murder. This is not to say this should be exclusive or exhaustive; the charge sheet can be as long as one chooses and could include the crime of ‘terrorism’ if such exists.

I accept also that the motive and intent of the terrorist is to terrorise (for change, revenge or whatever reason) and that murder is simply one of the means of achieving that. You have stated that you would have no difficulty in passing differing legislation to deter/prevent these crimes and sentence anyone convicted of these crimes.

That’s all fine and dandy, but … what are “these crimes”? Are we talking about a new crime or existing crimes committed with a different motive? Let’s take your suggested first step and attempt to define the problem. Actually, I doubt we could come up with a sensible legal definition in a short space of time so let’s limit ourselves to the more realistic goal of identifying some of the elements that define terrorism.

Bear in mind that the definition needs to be as accurate, precise and complete as we can make it. Take the crime of theft as an example. That should be easy to define, shouldn’t it? Surely it’s not much more than taking something that doesn’t belong to you? Wrong. The legal definition of theft is “the dishonest misappropriation of property belonging to another with the intention to permanently deprive them of it”. To make a conviction for theft stick the prosecution has to establish every single element beyond a reasonable doubt: it must be dishonest, it must be misappropriation, the item(s) must meet the legal definition of property, it must belong to another and there must be an intention of permanent deprivation.

Let’s get back to defining elements of terrorism … and let’s start with your words, namely “a terrorist … wants to leave you in perpetual fear” and “the motive of a terrorist is to terrorise”. I agree absolutely with these statements. Therefore, I suggest the first element of our definition is that it must be intended to inflict terror on others. I imagine we can all agree on that.

This raises the question of what constitutes ‘terror’. I can say with reasonable confidence that the fear of being killed or maimed/seriously injured would qualify as terror. Equally, I can say with some confidence that the fear of having one’s journey to or from work delayed by a few hours would not qualify as terror.

Next, let’s consider how the terror is created and inflicted. The terrorist can kill and injure other persons to inflict terror – and he can do it by issuing threats and hoaxes. Both approaches have the same effect potentially, but it seems to me that we have to allow for a distinction between the terrorist who actually kills and injures and the one who threatens to do so without ever meaning to follow through. The motive is the same but the actions are rather different.

Further, there needs to be some element of scale. Someone who seeks to inflict terror upon an entire nation is clearly a terrorist. Someone who seeks to inflict terror on just one specific individual is almost certainly not a terrorist. What about seeking to inflict terror on a small group such as a family, a club or association or even a village? At what point does the plain vanilla unlawful intimidation cross the boundary into terrorism? I don’t see that it can be done on a quantitative basis – but any meaningful definition of terrorism will require some means of making the distinction.

This is where the problems set in. Any definition of terrorism, which will be required for your “differing legislation” has to take account of all these elements, and probably many more, with clarity, accuracy and precision. It will need to establish appropriate boundaries, standards, tests and even the applicable burden of proof.

Of course, a major purpose of doing this will be to set appropriate punishments for crimes either of terrorism or crimes motivated by, but incidental to, terrorism. This accords with your reference to “differing legislation to … sentence criminals convicted of these crimes”.

But … legislation is already in existence that will achieve just that. The terrorist that kills people in furtherance of his aims can be convicted of murder and sentenced accordingly. The terrorist that injures people can be convicted of one or other of the varieties of assault. The same goes for the terrorist who issues threats and hoaxes; the legal definition of assault goes beyond actual physical harm and already encompasses threats, intimidation and the creation of fear – not forgetting civil remedies for nervous shock and other matters. On top of that there is a wide range of already-existing crimes, all with prescribed penalties, for such things as criminal damage, interference with public utilities, incitement, etc. Moreover, terrorist activists, sympathisers and fellow-travellers can all be punished under existing laws relating to attempted crimes and accessories to crimes. There are even existing laws that allow punishment to be levied for crimes not yet committed; namely conspiracy to commit a crime in the future.

At this point, let’s clearly distinguish between legislation to prevent terrorism and legislation to impose punishment on terrorists – and deal with the latter first. I think you are saying that the punishment for a terrorist who kills and the punishment for an ‘ordinary’ murderer should not necessarily be the same – and that the motives of each should be taken into account on sentencing. I agree absolutely.

My point is that existing law and legislation already includes this capability. Motive can be, and frequently is, taken into account on sentencing. The ordinary murderer can be sentenced to x years imprisonment with eligibility for parole at an earlier time. The terrorist can be sentenced to life imprisonment with no possibility of parole – ever. Short of the re-introduction of the death penalty, what more could anyone require?

So far as concerns this aspect (and leaving aside the ‘prevention’ issue – temporarily), it might be appropriate to consider amending sentencing and punishment powers but I don’t see any need to create new categories of crimes.

Now let’s look at the ‘prevention’ issue. Nice principle, but it needs to be made to work in practice. It’s much easier to identify an act as terrorism after it has occurred, obviously. For prevention, however, we need a way to identify terrorism before an act or a crime occurs. This mean adding to the elements of our definition in a way that allows identification of terrorism and justifies the application of punishment before an act occurs.

Let’s see … how about something along the lines of destabilising, deposing or overthrowing the duly-elected government? Too broad – one could argue that all opposition political parties are acting in concert to do this very thing. How about destabilising, etc. the government by illegal and/or violent means? But … if we add illegal and violent to the mix then, by definition, these matters are covered by already-existing laws.

OK, specific references to the government probably won’t work in our definition, so we need something else. What do we use? Concepts such as “the nation”, “the people”, “public interest”, “public order”, “our way of life” and “free and democratic society” are all extremely vague and uncertain. The possibilities for misinterpretation, abuse and injustice seem endless. Whichever way one tries to define it, the door opens on the possibility of all kinds of peaceful and lawful interest groups, lobbies and activists coming under the terrorism spotlight. If our definition of terrorism includes reference to the motive of imposing change on society, then we have to find a formula that distinguishes genuine terrorism from environmentalist groups, trades unions, animal rights activists, political think tanks, reform groups and even the legal system. All of these strive to bring about change but, generally, in ways that no one would regard as terrorism.

Maybe I’m missing something obvious here. If so, I will be happy for anyone to enlighten me.

As for new legislation that enlarges the power of the authorities to investigate and act upon suspected terrorism, I see many, many issues and problems there.

Law serves many more functions than simply defining transgressions and specifying sanctions. This includes, among other things, a serious role in protecting the rights of the innocent individual, defining the required standards of proof and setting the rules of evidence. More than that, the “rule of law” (both in principle and practice) is an essential part of a free and democratic society. If one waters down such things as standards of proof and rules of evidence to a material extent then the “rule of law” is damaged and our society is diminished and degraded as a consequence. If that happens to any appreciable degree, it seems to me that the terrorists who want to inflict harm on us have succeeded to some degree.

How far are we prepared to go to facilitate prevention of terrorism – and how many of the rights and liberties that contribute to the fabric of our free and democratic society, and which we take as given, are we prepared to forego? Random stop and search without reasonable cause? How about random search without cause at 3.00 am? Detention without charge / trial? For how long? Identity cards? Electronic tagging? Restrictions on travel? Curfews?

Do we automatically start rounding up the family, friends and associates of any suspected terrorist for indefinite detention and questioning? After all, there’s no smoke without fire and it could easily be argued that it is in the interests of public safety. Better safe than sorry, right?

Do we allow terrorist ‘profiling’ based on such things as ethnic origin, religious affiliation, recent travel patterns, non-conformist behaviour and who knows what else?

Most people support the principle of preventing terrorism in an airy-fairy, unconsidered fashion. This tends to be based on the assumption that whatever new legislation is enacted will not actually have any impact on them and their day-to-day lives. By that time that occurs, it’s already too late and our free and democratic society has been irrevocably affected. It’s all very well to discuss principles and processes but that’s only half (at most) of the story; the devil is in the detail.

Terrorism presents many difficult problems and challenges. To quote Professor Ronald Dworkin, from his book Taking Rights Seriously:

“Hard cases make bad law”.

The last thing we need is a rash of ill-considered and downright bad laws that make no contribution to a solution while pretending to protect our rights and interests by removing some of them.

Apologies for length. I’m a bit wired at the moment (only 9 or 10 hours sleep in the last 3 days) and I got carried away.

Dan

The problem with new legislation is that for every person that sees it as a further erosion of civil liberties, there will be another that sees the imposition as just and proportionate.

This is like having a politics discussion...