TPIMs and Control Order Conditions

First, I intend to investigate what a control order is, and why the issue is problematic pursuant to Article 5 ECHR; the right to liberty and security of person. I will then assess the development of the caselaw since 2005 to try and perceive judicial development. Finally, I will move on to assess the proposed changes by way of the Review of Counter Terrorism and Security Powers 2011 (RCTSP) Findings, Lord Macdonald’s Report, the Equality Impact Assessment and the Summary of Responses. This should aid me in objectively assessing if the proposals for the new system of Terrorism Protection and Investigatory Measures (TPIMs) would alleviate any of the issues posed by Control Order restrictions.

The case A and Others v Secretary of State for the Home Department (2004), was a significant case concerning terrorism law before the Prevention of Terrorism Act 2005 (PTA), which introduced control orders. [1] It concerned the detention without trial of several foreign nationals in Belmarsh prison, under (ATCSA) 2001 s23. The House of Lords ruled in majority that although the men’s detention was legal under the parameters of ATCSA 2001 it was incompatible under the Human Rights Act 1998 with Articles 5 and 14 ECHR. The measure was seen as disproportionate and allowed the detention of suspected international terrorists in a way that discriminated on the grounds of nationality and immigration status. The RCTSP states this meant the detention of foreign nationals awaiting deportation, even if deportation was unavailable at that time, was unlawful. [2]

The result of the House of Lords judgement in this case was the PTA 2005, which did not differentiate between the nature of proceedings that could be brought against nationals and foreign nationals, as the ATCSA 2001 had done. [3] The Act allowed the Home Secretary to impose control orders on certain individuals suspected of terrorism, and where deemed appropriate such measures could ‘opt out’ of human rights laws. Initial criticism was that the detention of individuals who had not committed, nor were necessarily about to commit a crime, was a serious encroachment on the presumption of innocence. [4] The control orders section of the PTA 2005 allowed for markedly reduced rights of appeal, and the absence of double jeopardy restrictions. This latter point means that if a defendant won an appeal in court, the Home Office could simply reapply the same order again until the desired effect was achieved. Following the implementation of the PTA 2005, the appellants in A and Others (2004) were subsequently removed from prison and subject to control orders.

A control order can impose several restrictions and obligations on an individual. Control orders can determine what an individual can possess, where he may work, live, talk to and where he can travel. [5] As well as this, an individual must consent to when required, surrender his passport, have his abode searched by police and submit to electronic tagging. Furthermore, control orders can impose curfews and deny use of phones and the internet. [6] In essence an order should theoretically allow the authorities to apply a scale of technological restrictions to impose control, short of prison. Normally such an order should constitute a restriction of liberty, rather then a deprivation of liberty. At such a point as the latter occurs to be lawful it would have to be a derogating control order. To achieve this, the Home Office would have to apply to court and the derogation would have to satisfy Article 15 ECHR, where such measures are allowed if there is ‘war or other public emergency threatening the life of the nation’. [7] Since the PTA 2005, no derogating control orders have been implemented.

The most obvious intention of such measures is to prevent the planning of mass casualty attacks such as the 7/7 bombings in 2005. There are further considerations however; they are also intended to prevent the provision of financial, material or logistical support for terrorist organisations, to prevent travel abroad where the intention is to cause harm to British interests and to prevent the attendance of terrorist training camps. [8] Since the PTA 2005, 48 people have been made subject to a control order, 28 of which were foreign nationals. Ten of these were subject to a control order awaiting deportation following the ruling of A and Others (2004). The orders have lasted up to two years, apart from two individuals, who were subject to orders for four years before they were revoked. [9]

Control orders are controversial because they are executive measures that can impose severe restrictions on individual liberties, regardless of criminal procedure. [10] What this effectively means is that the criminal process is put on hold for an indeterminate amount of time, and the suspect placed in an evidentially indeterminate state. [11] These aspects represent both a practical and ethical concern. Other contributory facets are the use of closed material against suspects and the intrusive nature of some of the restrictions into the lives of those they are supposed to control. [12] Furthermore, the fact that a control order can render prosecution less, not more likely, is a point of criticism, and one that Lord Macdonald holds central to his reservations. Article 5 ECHR is the point on which control orders have drawn extensive criticism. When control orders are seen to derogate from Article 5 and begin to deprive rather then restrict liberty, a question of proportionality arises.

The case of Guzzardi v Italy (1980) represents a starting point of the judicial approach to measures involving cumulative restrictions and Article 5. [13] Suspected of Mafia crimes for which he was not yet convicted, he was sent to live on a small island under what was referred to as ‘special supervision’. Under this arrangement, the claimant was subject to a curfew between 10pm and 7am. Furthermore, there were restrictions on where he could go on the island, with whom he could associate, and on his activities during the day. In paragraphs 92-95, the court considered whether the arrangement in place contravened Article 5 ECHR. Individually, each restriction could not be said to have been indicative of a derogation of Article 5 (1). However, it was in paragraph 95 that the court stated that it was the combinative outcome that could be said to be a derogation.

The ruling of the Guzzardi case established authority on the ‘combined effect’ of restrictions, reflected in the Lord Carswell’s judgement of Secretary of State for the Home Department (SSHD) v JJ (2007) at paragraph 77:

‘…….I have considered the cumulative impact of the obligations and therefore the extent to which they restrict the respondents’ liberty in the six hours when they are allowed out of their residences………I would consider that house arrest for 18 hours each day, even if it was the only obligation (apart from obligations such as reporting and tagging to ensure that it was strictly observed) would be more realistically described as a deprivation of liberty, and not as a restriction on liberty, if it prevented the individual from pursuing a normal “in at home/out at work.” [14]

In JJ, the court ruled the control order should be quashed because it appeared the suspect was effectively under solitary confinement. Lord Brown suggested that a curfew period of 16 hours might represent a permissible boundary between a restriction on ‘liberty of movement’ (Article 2 ECHR) and a ‘deprivation of liberty’ (Article 5 ECHR). [15] However this does not appear to address the entire effect of Guzzardi; on its own such a curfew might indeed be passable, but it is disingenuous not to consider the full impact of multiple restrictions. Although he stated in paragraph 106 that 16 hours may be too long, his previous statements may have caused confusion as they appeared to suggest such curfews would be legally ‘acceptable’. Subsequently, the Home Secretary argued that control orders imposing curfews up to 16 hours a day did not constitute deprivations of liberty. He increased the curfews in four orders from 12 to 16 hours. The fact that he had previously reduced them from 18 to 14, and then to 12 hours following previous judgments suggests that there was marked uncertainty created by Lord Brown’s remarks.

In SSHD v MB (2007), Lord Bingham reiterated that it was the cumulative effect of restrictions that had to be the primary point of considering whether there had been a deprivation. He described the control order placed on the appellant however as markedly less stringent then that of the JJ case. [16] There was for example no geographical restriction or curfew. The aim of this order was to prevent the suspect leaving the country and travelling to Iraq to fight coalition forces. It is apparent that such a ban on leaving the country would not infringe upon Article 5 in a similar fashion to the restrictions in JJ.

In SSHD v AF (No 3) (2009), it was again found that any one of the restrictions taken by themselves, resultant of the fragmentation of the suspect’s accessible area would not amount to a deprivation of liberty. Together however he was deprived of a large proportion of his previous life. Significantly, restrictions on access to mosques, educational establishments and employment opportunities were key in deciding AF had been deprived of his liberty.

In SSHD v AP (2010), the Supreme Court found that the adjustment of AP’s control order between April 2008 and July 2009 precipitated a combinative effect the extent of which was unlawful. [17] The order required him to reside 150 miles away from his family in London, a fact that combined with the 16-hour curfew restriction and consequential social isolation constituted a deprivation under Article 5 ECHR. Lord Brown clarified the position on 16 hour curfews that had resulted from JJ, stating that it was not the sole factor upon which an order could avoid breach of Article 5. He stated such a measure could not be the ‘sole criterion of the loss of liberty’ but those other elements such as ‘type, duration and effects’ had to be considered concurrently. [18] A second important outcome of this case was in the remarks of Sir John Dyson SCJ, who stated that the burden was on the government to consider what the cumulative effect of the application or modification of an order was, in order to avoid the risk of the courts finding a deprivation of liberty. [19]

Lord Macdonald presents some of the central criticisms of control orders illustrated in the caselaw in his report on the RCTSP 2011. He maintains that when individuals are accused of terrorist activity, the primary objective to ensure protection should be that wherever possible they are prosecuted and ‘locked up’. Thus, Lord Macdonald maintains that any system which detracts from or hinders the investigatory and evidence gathering process should be subject to intense scrutiny. [20] In the report, Lord Macdonald suggested that: ‘perhaps we need a more adult relationship between the citizen and the State, that recognises some risks are worth taking in order to enjoy liberty.’ [21] This appears to suggest that certain facets of legislation are never going to be universally satisfactory or palatable, but they are nonetheless required in the interests of liberty.

Lord Macdonald’s major criticism of the control order system appears to be that it ‘acts as an impediment to prosecution’. [22] What he is relating to is the evidential hiatus mentioned earlier. He stated that any new system would have to avoid creating a situation where suspects become evidence neutral. Restrictions such as relocation, curfews and denial of the use of mobiles and the internet are all preventative measures which could thwart certain activities being carried out by suspects which could lead to the evidence needed to build a prosecution. Lord Macdonald states that that conventional approach to detection and prevention of crime is turned on its head by the very method of control order’s imposition. [23] In the example of Operation Overt, had a Control Order approach been taken the architects of that airline plot would still be living amongst the general population, which is not an ideal situation for ensuring security. [24]

There is an overarching consideration of public protection in any discussion on the topic, as logically the main effort must be to ensure security. To this end however, restrictions have been made on the suspicions of the Home Secretary rather than evidence demonstrated in court of law. Section 8 of the PTA 2005 focussed on whether the information the Home Secretary was relying upon should, in his opinion, give rise to a criminal investigation and stated that he would be required to communicate with the Chief of Police. [25] These measures were still reliant on a fluid notion of reasonable suspicion however. When combined with the limited communication that the suspect can be led to expect, the right of government to interfere with the lives of individuals clearly needs to be limited. [26] The perceived absence of a link with the criminal investigation process, illustrated in part by the requirement that the Home Secretary merely have reasonable suspicion, could be rectified to some extent by the creation of a mandated link with the Director of Public Prosecutions.

Suspects against whom there is insufficient evidence regardless of investigation, but are ‘known’ to be involved with terrorism are problematic. New measures should, in fact, encourage and facilitate the gathering of evidence. [27] Lord Macdonald argues that the majority of constitutional criticism of control orders would recede were measures part of the criminal process. [28] Lord Macdonald argues that restrictions need to be closely linked with an ongoing criminal investigation, and that any prohibitions on aspects of suspect’s lives should assist rather than hinder the evidence gathering effort. They would therefore, be more closely orientated to bail conditions. [29] The constitutional objections are exacerbated by the fact that it is the Security Service, not the Police that appears to take the leading role in the process. This can be seen as undermining criminal procedure, simply because the objective of the Security Service is to protect, not to prosecute. One might argue that in fact, the Police do review the evidence against suspects regularly. Lord Macdonald suggests however that these assessments are not adequate enough; the authorities should be actively building the case for prosecution at all times. [30]

Having assessed the general theory posed by the report, which concerns the detachment of control orders from the criminal process and the importance of evidence gathering, I will now look at some of the report’s criticisms in more detail, with a view to seeing if the Review’s suggested changes will create a system that does not carry such a risk of breaching Article 5 ECHR.

Relocation is one restriction potentially imposed by control orders that the review states should be done away with entirely. Lord Macdonald states that no British citizen should be told where they can or cannot live. He states, this ‘internal exile…. is utterly inimical to traditional British norms.’ [31] The report recommends its abolition as it is disproportionate and cited there was little justification for its retention. The reason for this is that the restriction not only appears to be an abuse of power, but particularly because it could prevent the gathering of evidence. Lord Macdonald illustrated this point most succinctly in the following way: ‘An individual in social and geographical purgatory is not a fruitful source of material justifying prosecution.’ [32]

In the past curfews have been imposed on individuals who have been charged with a crime and are awaiting trial, remaining on bail until guilt has been proven. [33] Similarly to relocation however, curfews have aspects which are related to house arrest. It is the view of Lord Macdonald that house arrest in any form should never be allowed be imposed in the absence of criminal proceedings. He states that the review was right to recommend their abolition as they were disproportionate. Primarily, orders to impose house arrest in the absence of criminal proceedings would be indicative of totalitarianism, not the rule of democracy. Secondly, on the basis of practicality, such curfews are unlikely to prevent determined terrorists anyway. [34] It is suggested that notification of address, workplace or place of study would suffice. Police could enforce such requirements by intelligence and spot visits, the only down side of which it would seem would be consumption of Police time. [35] The case Secretary of State for the Home Department v AP (2010) is an example of where measures such as curfews, used in conjunction with other restrictions have tipped the balance and infringed Article 5. [36]

Telephone and internet bans, association bans and geographical bans are restrictions that are similar in that they are deemed by the report to be contrary to the objective of evidence gathering. The main reason for the first mentioned is that technologically, it seems illogical to deny these forms of communication that could lead to the discovery of evidence. It would therefore be counterproductive and an unnecessary hindrance. Asking for details of phones and computers would constitute a justifiable interference with people’s individual autonomy. Lord Macdonald states that the review is right to recommend the abolition of such restrictions; however he also states that the review’s failure to define a ‘restriction on communication’ is an omission that needs clarification. [37]

One of the appellants in A and Others (2004), Abu Rideh, was subject to a restriction that he was not to meet with specific individuals. [38] Association bans such as this are in the same way as telephone and internet bans, damaging to the evidential process. In the unreported case concerning Cerie Bullivant in 2008, Collins J stated that the dangers of association bans unchecked by regulation are obvious. In this case, the suspect had been subject to a control order due to his keeping company with unsavoury characters, even though on the whole there was insufficient evidence to warrant it. In some situations it might be necessary in the interests of public protection to ensure that certain people do not meet, but the report suggests that this should only occur should it not hinder intelligence gathering. Furthermore, Lord Macdonald solicits that the type of person with whom the suspect cannot meet should fall within criteria to be set by statute to avoid abuse. [39]

The use of geographical bans, so as to avoid running afoul of Article 5 ECHR, should only prevent individuals from entering areas that make surveillance problematic. It should not prevent them from entering whole geographical areas. The restrictions in Secretary of State for the Home Department v AP would not be lawful under this understanding, as the suspect had been denied access to London. [40] Lord Macdonald states that again, the review’s failure to specify what a reduction in power actually means is an omission. [41] The Review finding merely states ‘greater freedom of movement’ with only ‘limited restrictions’. [42] These are terms which could be seen as somewhat ambiguous, and while they would appear to offer a change towards greater individual liberties due to the indistinct nature of such remarks the true scope of such a change is ultimately uncertain.

The Summary of Responses to the RCTSP 2011 stated that the majority of contributors saw control orders as ineffective and against the interests of open and fair justice. [43] Furthermore, it was stated that community groups felt that more needed to be done to prevent radicalisation and that there were widespread concerns over surveillance in Muslim communities. [44] The need to bring any restrictive system into line with the criminal process is central to rectifying the perceived infringement upon personal liberties caused by the PTA 2005. The development of the caselaw towards AP, illustrated that the cumulative effect of restrictions could often amount to a deprivation of liberty under Article 5 ECHR. The risk of the courts coming to this conclusion would have rendered the continued use of the orders inefficient and would have increased litigation, so change was clearly needed.

TPIM’s should reduce the capacity of the executive to circumvent criminal procedure, a hallmark more akin to autocracy and totalitarianism then a democratic nation that values individual autonomy. It has been suggested that the new system of TPIM’s are a reduced weight version of the previous system, perhaps unfairly. There are certainly some areas of ambiguity where further clarifications on definitions are needed, for example in the instances of telephone and internet bans, and geographical restrictions. The absence of definitions in these areas is an omission that needs to be addressed; otherwise the effectiveness of the new system will be pre-emptively mired by uncertainty. The Secretary of State will no longer be able to implement measures on reasonable suspicion, but upon reasonable grounds of involvement in terrorism related activity; a much more restrictive concept. This, along with the requirement to apply to the High Court to apply the new measure, should result in greater executive accountability. Although in ‘extreme’ cases the Home Secretary can implement a control order without permission, this must be qualified by the court within seven days. [45]

Any measures that restrict individual liberty outside of the criminal justice process, regardless of avoiding the boundary posed by Article 5 ECHR, would be controversial. It is therefore unlikely that there will be a total reduction in the criticism of a new system. Having said this, the Equality Impact Assessment states that the repeal of control orders is likely to be welcomed and that in the past anonymity orders had helped reduce the impact on affected communities. [46] While some facets may appear similar, the RCTSP and Lord Macdonald’s report clearly illustrate a movement towards preventing the ability of restrictions to inhibit prosecution proceedings, and an effort to create a system that promotes public safety while respecting the right to liberty. The abolition of restrictions analogous to house arrest and relocation implies a real improvement on the shortcomings of control orders, illustrated in the caselaw. On the value of the new measures, Lord Macdonald said that they ‘are all to be regarded as reforms of real significance. They point to an unmistakable rebalancing of public policy in favour of liberty.’ [47] The reduction in executive power and increased accountability, abolition of restrictions that would make prosecution more difficult and less likely, and the rescinding of state power are outcomes that should be seen as having considerable substance.