1 MI5, ‘Evidence and Disclosure’, {http://www.mi5.gov.uk/output/evidence-and-disclosure.html}.

2 M. Jacobson, The West at War: US and European Counterterrorism Efforts, Post September 11 (Washington DC: Washington Institute for Near East Policy, 2006), pp. 44, 45.

3 Interview with a French police counter-terrorist official [FR-E], Paris, 4 July 2006; French Government, France facing Terrorism: White Paper of the Government on internal security in the face of terrorism (Paris: Documentation Francais, 2006), pp. 35–7; Interview with a Metropolitan Police counter-terrorist officer [UK-I], London, 21 November 2005. See also the comments of the then head of MI5, quoted in: ‘MI5 tracking “30 UK Terror Plots”’, BBC News Online (10 November 2006), {http://news.bbc.co.uk/1/hi/uk/6134516.stm}.

4 Peter Clarke, ‘Learning from Experience – Counter Terrorism in the UK since 9/11’, Speech to the Policy Exchange, 24 April 2007, {http://www.policyexchange.org.uk/publications/publication.cgi?id=15}.

5 French Government, France facing Terrorism, pp. 31–2.

6 While prevention has been a key element of British and French counter-terrorist operations and legislation since the 1970s, the perception of mass casualty terrorism has intensified its importance. This is discussed further in Frank Foley, Similar Threat, Different Responses: France and the UK facing Islamist Terrorism, (unpublished dissertation, European University Institute, 2008).

7 Jacobson, The West at War, p. 44.

8 Interview with a Metropolitan Police counter-terrorist officer [UK-E], 17 July 2006.

9 MI5 may admit the results of bugging devices (placed in cars or homes, for example) to court cases. This must be distinguished from telephone taps or intercept, which it does not as yet admit to court. See ‘Fertiliser bomb trial: Bugged Talk’, BBC News Online (30 April 2007), {http://news.bbc.co.uk/1/hi/uk/6466817.stm}.

10 Second Interview with a former senior UK government official [UK-A], London, 25 January 2007. For an example, see, ‘Terror cell bugged, court hears’, BBC News Online (16 May 2006), {http://news.bbc.co.uk/1/hi/uk/4988002.stm}. It should be noted that all of the former officials interviewed for this article were in post until at least 2004 (with one exception: FR-N).

11 Jacobson, The West at War, pp. 43–4.

12 Bradley W. C. Bamford, ‘The United Kingdom's “War Against Terrorism”’, Terrorism and Political Violence, 16: 4 (2004), pp. 741–42; Clarke, ‘Learning from Experience’.

13 Clarke, ‘Learning from Experience’.

14 Interview with a Metropolitan Police (Special Branch/Counter Terrorism Command) officer [UK-B], London, 26 January 2007.

15 Clarke, ‘Learning from Experience’.

16 Interview with a Metropolitan Police counter-terrorist officer [UK-E], 17 July 2006. See also, Jacobson, The West at War, p. 43.

17 Clarke, ‘Learning from Experience’. See also, ‘Timeline: Operation Crevice’, BBC News Online (30 April 2007), {http://news.bbc.co.uk/1/hi/uk_politics/6207348.stm}.

18 Interview with a Metropolitan Police counter-terrorist officer [UK-E], 17 July 2006.

19 Metropolitan Police Service, ‘New Counter-terrorism Command launched’, MPS Bulletin 514, (2006), {http://cms.met.police.uk/news/major_operational_announcements/new_counter_terrorism_command_launched}.

20 ‘MI5 expands to meet terror threat’, BBC News Online (22 February 2004), {http://news.bbc.co.uk/1/hi/uk/3510611.stm}; Frank Gardner, ‘One year on – Is the UK any safer?’, BBC News Online (3 July 2006), {http://news.bbc.co.uk/1/hi/uk/5140958.stm}.

21 Under the French system, an investigating magistrate carries out an ‘impartial’ investigation and prepares a file on the case, which he eventually passes to the public prosecutor and the defence, who then argue the case at a trial which is presided over by independent trial judges. See Jacqueline Hodgson, French Criminal Justice: A Comparative Account of the Investigation and Prosecution of Crime in France (Oxford: Hart, 2005); and J. Shapiro and B. Suzan, ‘The French Experience of Counter-terrorism’, Survival, 45:1 (2003), pp. 77–8.

22 Shapiro and Suzan, ‘The French Experience of Counter-terrorism,’ p. 82; Interview with a senior counter-terrorist official of the Police Judiciaire [FR-O], Paris, 9 February 2007; Interview with a French police counter-terrorist official [FR-E], Paris, 4 July 2006.

23 Interview with a former DNAT and DST counter-terrorist investigator [FR-H], Paris, 16 February 2007; Interview with a former senior DST counter-terrorist intelligence official [FR-F], Paris, 30 January 2007.

24 For example, French officials believed that the hijackers intended to crash the plane in central Paris (this did not happen because French Special Forces seized the plane while it was on the ground in Marseille). See Shaun Gregory, ‘France and the War on Terrorism’, Terrorism and Political Violence, 15:1 (2003), p. 131.

25 Interview with an Investigating Magistrate specialised in terrorism [FR-M], Paris, 22 February 2007.

26 It was not until 2006 that the national police's anti-terrorist unit began to be given some Islamist terrorism cases once again. See P. Smolar, ‘La création d'un service unique pour renseignement intérieur se precise’, Le Monde (17 May 2006); Interview with a senior counter-terrorist official of the Police Judiciaire [FR-O], Paris, 9 February 2007; and Interview with Gilbert Thiel, an Investigating Magistrate specialised in terrorism [FR-K], Paris, 22 February 2007.

27 J. Alderson, ‘A Fair Cop’, Red Pepper, 24 (1 May 1996), pp. 11–13.

28 For a more theoretically-informed account of these factors, see Frank Foley, ‘Reforming Counterterrorism: Institutions and Organizational Routines in Britain and France’, Security Studies, 18:3 (2009), pp. 435–478.

29 These include the national Police Judiciaire, the Gendarmerie Nationale (a military body with domestic policing duties) and the Direction centrale du renseignement intérieur (DCRI), which was formed in 2008 as a result of the fusion of two domestic intelligence services – the DST and the Renseigements Généraux (RG). See below, n. 34. The Paris police division houses its own section of the RG – the Renseigements Généraux de la Préfecture du Police (RGPP) – and the Section Anti-Terrorist (SAT) of the Paris Brigade Criminelle does law enforcement investigations into terrorism in the capital.

30 See the Decree of 22 December 1982 (DST) and Police Nationale memorandum no.643 of 19 March 1976 (RG), quoted in Nathalie Cettina, ‘The French Approach: Vigour and Vigilance’, in Marianne van Leeuwen (ed.), Confronting Terrorism: European experiences, threat perceptions and policies (The Hague: Kluwer Law International, 2003), pp. 79–80.

31 Brodeur and Dupeyron, ‘Democracy and Secrecy: The French Intelligence Community’, in J. P. Brodeur, P. Gill and D. Tollborg, (eds), Democracy, Law and Security: Internal security services in contemporary Europe (Aldershot: Ashgate, 2003), p. 14.

32 Shapiro and Suzan, ‘The French Experience of Counter-terrorism’, pp. 78–9. Foley, ‘Reforming Counterterrorism’.

33 Interview with a former Investigating Magistrate and Prosecutor and current Member of the French National Assembly [FR-N], Paris, 5 July 2006; Interview with an Investigating Magistrate specialised in terrorism [FR-M], Paris, 22 February 2007.

34 Mr Sarkozy pushed through his long-stated policy of merging the RG and DST in 2008, but he was unable to tackle other overlapping mandates, such as the DST's sharing of counter-terrorist law enforcement with the national police.

35 Interview with a former senior counter-terrorist officer of the Metropolitan Police [UK-C], London, 14 December 2005; Second Interview with a former senior UK government official [UK-A], London, 25 January 2007.

36 The main statutes governing the intelligence agencies are the Security Service Act 1989 and the Intelligence Service Act 1994. See Cabinet Office, National Intelligence Machinery (London, TSO, 2006), pp. 3–4. For the Act of Parliament which authorised the extension of MI5's mandate into serious crime intelligence, see the Security Services Act 1996, {http://www.opsi.gov.uk/Acts/acts1996/ukpga_19960035_en_1}.

37 See, for example, ‘UK Special Branch Guidelines’, Statewatch, 4:6 (November 1994), {http://www.statewatch.org/news/2004/mar/special-branch-1995.htm}.

38 Home Office, Scottish Executive and Northern Ireland Office, Guidelines on Special Branch Work in the United Kingdom (March 2004), p. 8.

39 Interview with a former senior counter-terrorist officer of the Metropolitan Police [UK-C], London, 14 December 2005.

40 On French statism and its ‘state-centred conception of justice’, see Robert Elgie, Political Institutions in Contemporary France (Oxford: Oxford University Press, 2003), pp. 71–4.

41 Fédération Internationale de Ligues des Droits de l'homme (FIDH), France: Paving the way for arbitrary justice, Report No. 271–2, March 1999, p.4, {www.fidh.org}.

42 For a profile of a leading magistrate who embodies this phenomenon, see Piotr Smolar, ‘Jean-Louis Bruguière, un juge d'exception’, Le Monde (6 January 2005).

43 Shapiro and Suzan, ‘The French Experience of Counter-terrorism’, p. 83; Foley, ‘Reforming Counterterrorism’.

44 Interview with a former Investigating Magistrate and Prosecutor and current Member of the French National Assembly [FR-N], Paris, 5 July 2006 (emphasis added).

45 Shapiro and Suzan, ‘The French Experience of Counter-terrorism’, p. 83; Interview with Gilbert Thiel, an Investigating Magistrate specialised in terrorism [FR-K], Paris, 22 February 2007.

46 On judicial independence in Britain, see David Judge, Political Institutions in the United Kingdom (Oxford: Oxford University Press, 2005), pp. 223–6.

47 R. Verkaik, ‘Judges are not the servants of the government … our duty is to the public’, Independent (10 October 2005). (Emphasis added).

48 This includes search warrants and certain forms of detention. See Lord Carlisle, Report on the operation in 2005 of the Terrorism Act 2000, May 2006, p. 20.

49 Home Office, ‘Frequently asked questions regarding terrorism legislation’, {http://www.homeoffice.gov.uk} last accessed on 14 April 2005, but since removed – print copy in author's possession). See also David Omand, ‘Security Dilemmas’, Prospect, 129 (December 2006), pp. 12–3.

50 This was according to a statement made in 2005 by the Home Office, the government department which oversees and most closely reflects the views of MI5. See Home Office, ‘Frequently asked questions regarding terrorism legislation’. Following a review in 2007–2008, the government decided to allow a minimal admittance of intercept material as evidence to court.

51 While British police and prosecutors have developed closer co-operation on terrorism cases in recent years, the intelligence agency, MI5, is not as closely involved in the prosecutorial-judicial sphere as its French counterparts. For details, see Foley ‘Reforming Counterterrorism’.

52 Home Office, Statistics on Terrorism Arrests and Outcomes, 13 May 2009, p. 5, {http://www.homeoffice.gov.uk/rds}.

53 Jacobson, The West at War, pp. 104–5; S. O'Neill, ‘Trial by jury no longer guarantees justice’, The Times (15 September 2008).

54 The British government implicitly recognised this weak link between intelligence and justice when it considered creating a group of ‘security-cleared’ judges as an attempt to enable more sensitive intelligence material to be admitted to court. The proposal was ultimately not pursued, however. See Joint Committee on Human Rights, Counterterrorism Policy and Human Rights: Prosecution and Pre-charge Detention, HC 1576 (London: TSO, August 2006), pp. 20, 23–4.

55 Interview with an Investigating Magistrate specialised in terrorism [FR-M], Paris, 22 February 2007; Interview with Gilbert Thiel, an Investigating Magistrate specialised in terrorism [FR-K], Paris, 22 February 2007.

56 A senior British official said that maintaining public confidence in the impartiality of the justice system was part of the government's CONTEST strategy to undermine support for Islamist terrorism over the long term: Interview with a former senior UK government official [UK-A], London, 4 November 2005. For an argument in support of this position, see Michael Clarke, ‘Haste and Leisure in the War on Terror’, The Guardian (9 September 2008), {http://www.guardian.co.uk/commentisfree/2008/sep/09/uksecurity.terrorism}.

57 French counter-terrorist police officers said that there is little co-operation between them and the DST and they questioned the appropriateness of an intelligence agency doing law enforcement investigations. Interview with a senior counter-terrorist official of the Police Judiciare [FR-O], Paris, 9 February 2007; Interview with a counter-terrorist investigator of the Police Judiciare [FR-G], Paris, 9 February 2007.

58 See Foley, ‘Reforming Counterterrorism’.

59 The richest comparative discussions have tended to focus on Britain and other Anglophone countries. While edited volumes have increased our knowledge of non-Anglophone cases, they are more concerned with drawing general conclusions than comparing the UK to continental European countries.