David Anderson QC, the Independent Reviewer of terrorism legislation, has released his first report into the operation of Terrorism Prevention and Investigation Measures, introduced in 2011 with the aim of protecting the public from persons believed to have engaged in terrorism, but who can neither be prosecuted nor deported.
TPIM subjects in 2012 were subject to restrictions including overnight residence at a specified address, GPS tagging, reporting requirements and restrictions on travel, movement, association, communication, finances, work and study. Like their predecessor, control orders, TPIMs have been highly controversial and, as Anderson points out, “vigorously attacked – from opposite directions – by civil libertarians and by the more security-minded.” However, his conclusion is that they are broadly acceptable: Continue reading
AT v Secretary of State for the Home Department  EWCA Civ 42 – Read Judgment
The Court of Appeal has upheld a challenge to a control order on the basis that the person subject to the order (‘the controllee’) had not been given sufficient information about the case against him.
How do you solve a problem like a suspected terrorist? For successive governments, the answer has proved to be far from straightforward, as the recent controversy surrounding radical cleric Abu Qatada has demonstrated.
The focus of this blog post is on yet another challenge to the imposition of a control order. Introduced by the Labour government in the Prevention of Terrorism Act 2005, a control order is a controversial tool used to restrict and monitor suspected terrorists. They have now been superseded by Terrorism Prevention and Investigation Measures (or “TPIMs”, described by some critics as “control orders lite”), which will in due course have their time in the legal spotlight. For now, there remain a small number of cases brought under the old control orders regime which are being determined. As this decision demonstrates, even their consignment to history has not shielded them from careful judicial scrutiny.
AM v. Secretary of State for the Home Department  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.
Updated | Next week will mark the 10th anniversary of the 11 September 2001 terrorist attacks. Despite the intervening decade, the states threatened by terrorism are still puzzling out the right balance between the powers of security services and the rights of suspected terrorists to due process.
Although terrorism is now mercifully low on the public agenda, the effects of 9/11 are still being felt across the legal system. The United Kingdom is soon to open an independent inquiry into the improper treatment of detainees by security services following the terrorist attacks. As things stand, the UK’s major human rights groups are boycotting the inquiry for fear that the government will be able to suppress evidence.
The intelligence services have now tightened up their policy towards interviewing detainees overseas, but one policy which is still in flux is the control order regime, soon to be succeeded by Terrorism Prevention and Investigation Measures (TPIMs).
CD v Secretary of State for the Home Department  EWHC 1273 (Admin) Read judgment
As readers of this blog will know, control orders have often been successfully challenged in the courts on human rights grounds. But in this case, an order forcing a person to relocate to a different part of the country was found to be lawful.
The Prevention of Terrorism Act 2005 gives the Home Secretary the power create to control orders, which impose obligations on persons “for purposes connected with protecting members of the public from a risk of terrorism”. One of the obligations permitted is a restriction on an individual’s place of residence.
Updated | The government is soon to reveal the future of control orders, controversial anti-terrorism measure which have been repeatedly found by the courts to infringe human rights. But what are they? And why have they caused such trouble since they were introduced?
What are control orders?
Control orders are an anti-terrorism power which allows the secretary of state to impose strict conditions on a terrorist suspect (the ‘controlee’).
The debate over whether control orders will survive the anti-terrorism review has been rumbling on for the past weeks, with a surprising amount of internal discussions being aired in public.
The human rights organisation Liberty, which opposes the orders, has posted a useful summary of the recent back and forth, which it calls (allegedly quoting the Prime Minister) a “car crash”. Reading the summary, it seems clear that there are a number of strongly held but opposing views within the coalition, apparently split down party lines. There also appears to be no clear picture from within the security services either.
CA v Secretary of State for the Home Department  EWHC 2278 (10 September 2010) – Read judgment
The High Court has ruled that a a control order which required the “controlee” to relocate and live at an address in Ipswich, away from his family in Crawley, was unlawful.
In Secretary of State for the Home Department v AP  UKSC 24, the Supreme Court allowed the appeal of a man subject to a control order based on the argument that confinement to a flat 150 miles away from his family amounted to a breach of his human rights under Article 5 of the ECHR (right to liberty). The case of CA provides another example of the court striking down a relocation provision in a control order, and is the latest in a long series of court judgments which have chipped away at the controversial scheme.
AN v Secretary of State for the Home Department  EWCA Civ 869 (28 July 2010) – Read judgment
The Court of Appeal has held that control orders of three men suspected of terrorism revoked by the Government should in fact be quashed altogether. The decision opens the door for the men to claim compensation, and deals another blow to the controversial control order scheme.
This is the latest in a long and tortuous series of court judgments which have chipped away at the controversial control order scheme. This latest decision arises from a 2009 House of Lords (now the Supreme Court) decision that it was a breach of the right to a fair trial under Article 6 (the right to a fair trial) to hold someone under a control order without sufficient information about the allegations against him, even where the case against the “controlee” was based on closed materials, the disclosure of which would compromise the country’s national security (see our summary).
Secretary of State for the Home Department v AP  UKSC 24 (16 June 2010) - Read judgment
The Supreme Court have given the latest judgment on the controversial control order scheme, and in this case have allowed the appeal of a man suspected of terrorism on the grounds that confinement to a flat 150 miles away from his family amounted to a breach of his human rights.
The Appellant was an Ethiopian national who was the subject of a control order. This confined him to a flat for 16 hours a day in a Midlands town 150 miles away from his family in London.
The Supreme Court unanimously allowed the appeal, set aside the decision of the Court of Appeal and restored the High Court’s order. Lord Brown gave the leading judgment. Lord Rodger and Sir John Dyson SCJ delivered concurring judgments. The press summary of the judgment can be read here and the summary below is drawn from it.
The Parliamentary Joint Committee on Human Rights (‘the Joint Committee’) has released its report on the Annual Renewal of Control Order Legislation 2010, in which it heavily criticised the control order scheme. The scheme, introduced in 2005, allows courts to put terror suspects under restrictions resembling house arrest by placing them under curfews of up to 16 hours a day and, typically, constraints on their movements and communications. There were 12 suspects subject to control orders in December 2009.
Whereas the Joint Committee has previously criticised the scheme, this is the first time that it has recommended for it to be discontinued. The committee said:
We have serious concerns about the control order system. Evidence shows the devastating impact of control orders on the subject of the orders, their families and their communities. In addition detailed information is now available about the cost of control orders which raises questions about whether the cost the system is out of all proportion to the supposed public benefit. We find it hard to believe that the annual cost of surveillance of the small number of individuals subject to control orders would exceed the amount currently being paid to lawyers in the ongoing litigation about control orders. Finally, we believe that because the Government has ignored our previous recommendations for reform, the system gives rise to unnecessary breaches of individuals’ rights to liberty and due process.