In 2024, governments continue to grapple with legal and political ramifications posed by repatriating foreign terrorist fighters (FTFs). Criminal justice systems and governments taking different approaches to returning individuals suspected of committing acts of terrorism overseas has become an area of international contestation. Inconsistency in repatriating FTFs has highlighted differences between legal systems across Europe, Asia, and North America. In England and Wales, growing interest in the repatriation and prosecution of terrorists has outlined barriers to effective research on terrorism trials and legal decision-making processes. Dismantling barriers to researching the courtroom is central to promoting legal transparency and accountability, understanding how appropriate legal responses to terrorism are articulated and enforced, and drawing attention to the potential impact of implicit biases in the prosecution of terrorists in the criminal justice system. The study of terrorism trials and sentencing is an interdisciplinary endeavour which allows for the fields of law, terrorism studies, and criminology to investigate intersections between criminality, justice, and national security. However, relatively little work has explored these junctures. This article outlines methodological, practical, and conceptual barriers which hamper research on terrorism trials in England and Wales and suggests new methods which can promote transparent interdisciplinary legal research.

Under Australia’s counter-terrorism laws, sentenced offenders face the possibility of continuing detention for rolling three-year periods after serving a term of imprisonment. At both stages of decision-making – sentencing and post-sentence – Australian courts favour punishment, deterrence and community protection over the need to rehabilitate offenders. The need to pre-empt terrorist risks is clear, but these processes lack a sufficient evidence base about recidivism and risk assessment. In this article, I compare, contrast and critically analyse decision-making processes followed by Australian courts when making decisions about imprisonment in terrorism cases. These decisions are made at two different stages: (1) initial sentencing under criminal offences for terrorism, and (2) post-sentence under a Continuing Detention Order (CDO) scheme. Whereas initial sentencing decisions are made under criminal law and impose punishment on offenders, CDOs fall under civil law and are considered non-punitive, even though they extend the initial punishment. Neither stage relies on a strong evidence base to predict future behaviour, and yet assumptions about future risk are given sufficient weight to justify ongoing deprivations of liberty and undermine core principles of criminal justice.