National security concerns do trump human rights, sometimes

AM v. Secretary of State for the Home Department [2011] EWHC 2486  - read judgment 

The Home Secretary Theresa May was lambasted last week for an inaccurate reference to cats, but the more general view expressed by her and most of the media that the Human Rights Act is routinely getting in the way of national security interests is also arguably misleading.

Ironically, in the same week as the Home Secretary was telling the Conservative Party conference that ‘the Human Rights Act must go’ the High Court emphatically upheld her decision to renew a control order on a suspected terrorist.

There is a handy guide to the control orders regime here, and to “TPIMs”, their proposed successor, here. Essentially, control orders are strict conditions imposed on a terrorist suspect such as a curfew, electronic tagging or regular searches. In this case the suspect’s conditions included a ban on any internet access at his home, a ban on using USB memory sticks to transfer any data from his home to his university, restrictions on his access to the internet at university or when he visited his parents, and a requirement to make a phone call every day to a monitoring company.

More human rights arguments

AM argued that the refusal of the Home Secretary to modify these conditions was in breach of his human rights because: (i) he had not been provided with adequate disclosure of the allegations and evidence against him, and had not had reasonable opportunity to demonstrate that such conditions were unnecessary; (ii) the restrictions were unnecessary and disproportionate.

Mr Justice Silber (who has given this speech about the control orders regime) gave short shrift to the first set of arguments, holding bluntly that

I have kept the Article 6 [right to a fair trial] rights of AM under constant review…nothing has been shown to me to suggest that any further disclosure is required

and

the combination of the statutory safeguards and the reviews carried out by CORG are more than sufficient to provide to each controlled person a reasonable opportunity to demonstrate that the control orders and/or any obligations in it are no longer necessary.

The decision

Mr Justice Silber considered the second, more substantive, argument in some detail. A previous review judge had noted that “there is overwhelming evidence that [AM] was a person prepared to martyr himself and, in so doing, to kill large numbers of other people“, that “he has repeatedly, systematically and carefully lied” and that he “remains committed to terrorist activity“.

However, AM’s argument was that the individuals he had previously been involved in planning terrorist activity with were now in jail or under control order themselves and that he had grown up and matured considerably in the past few years. AM is now 23, has completed two years of a degree at university and has a job. He complained that the wearing of an electronic tag is demeaning, the requirement to daily report to an electronic monitoring company is stressful and frustrating and he had been suffering from anxiety as a result. The judge was also asked to consider that the stress of the control order had caused AM’s parents to separate and AM to have added responsibility of caring for his sisters.

The judge was unimpressed, holding generally that:

It is true that with maturity some young people abandon their criminal past and instead become more law-abiding but that is usually where they accept the folly of their earlier criminal activities. [S]uch a change is unlikely to apply to somebody, like AM, who wished to become involved in terrorist activities because of his strongly held views and ideology, especially where he has been found to be dishonest and where he still denies that he has been involved in terrorism or extremist behaviour.

He then went on to deal specifically, and in considerable detail, with whether any of the conditions of the control order were disproportionate. In finding that all of the conditions were necessary and proportionate, perhaps the most interesting thing to note is how often there are serious practical difficulties in having less stringent restrictions. For example:

  • USB memory sticks are much simpler to hide than paper documents, and the material on them can be easily deleted
  • It is possible to wipe a hard drive (to e.g. delete internet history) in a non-detectable way by removing the hard drive from the machine, taking it to another place and using wiping software run from another computer.
  • It is not possible to monitor use of the internet and block any sensitive words comprehensively, because perfectly innocent English words are often used by terrorists to conceal terrorism-related activities, key words in a wide range of foreign languages would also need to be blocked, and the list would have to be constantly expanded and updated.
  • There are too many vulnerabilities in the Windows operating system to allow the Security Service to restrict a person’s access to ‘standard user’ level with any certainty.

Overall, Silber J comprehensively rejected AM’s argument and held that “it would be impossible to successfully monitor AM’s use of the internet and the threat to national security of his access to home internet cannot be mitigated”.

Comment

It is interesting to compare the judgment in this case with the recent ruling by the Court of Appeal that absolute bans on internet usage as part of Sexual Offences Prevention Orders are unlawful (see analysis here). In making control orders the courts have been clear that the Home Secretary must consider carefully how to achieve sufficient protection for the public with minimal interference with the suspects life. However, when national security concerns are in the frame the courts are clearly willing to take a harder line and allow more sweeping restrictions that might be appropriate in a more typical criminal case, even one involving potentially heinous crimes like sexual assault on children.

This decision shows that the courts are highly sensitive to national security issues and actually very careful to deal with human rights appeals in a context-specific and security-conscious way, much as parts of the press and the Government would have us believe otherwise. On the basis of this judgment, in fact, it seems that the Home Secretary should be more concerned about the loopholes in Windows software than the judges misinterpreting the Human Rights Act.

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