The Normalisation of Secrecy in the United Kingdom and the Netherlands: Individuals, the Courts and the Counter-Terrorism Framework

Abstract

Since 9/11, States have persistently sought to adapt their counter-terrorism toolkit to the, perceived as unprecedented, threat of terrorism . What has been a considerable departure from previous approaches is the extent of transnational State cooperation on matters of national security —particularly in the context of intelligence gathering, processing and information sharing. What can be described as entrenched ‘information intoxication ’ of security agencies has not only resulted in operational changes within the intelligence community but has also led to procedural shifts within national courts. In order to accommodate the growing utilisation of sensitive intelligence evidence within national security and criminal investigations, domestic courts have been increasingly called upon to engage with such evidence in closed proceedings. In the United Kingdom , courts have been tasked with evaluating sensitive intelligence evidence to assess whether an individual should be subjected to a particular counter-terrorism measure and/or the impact of this measure on their individual human rights . Within the Dutch courts, such evidence has been examined when deciding whether to impose a criminal conviction for engagement in terrorism activities . The sensitivity and complexity of such cases have been accommodated through so-called conditional inclusion of intelligence within court proceedings models despite the courts’ traditional reluctance to engage with such evidence . In this context, the following discussion proposes to engage in a critical reflection on whether—and if yes, how—the respect and protection of individual rights and human dignity within the United Kingdom and the Netherlands has changed since the introduction of these models.