Since their introduction under the terms of the Prevention of Terrorism Act 2005 (“the 2005 Act”) following the ruling of the House of Lords on the previous system under the Anti-terrorism, Crime and Security Act 2001 Control Orders have proved to be a contentious issue between the Government and Civil Liberties campaigners.
What exactly are Control Orders?
A control order is something which can be imposed upon a terrorist suspect by the Home Secretary. Under the order the Home Secretary can place upon an individual a huge set of restrictions upon their liberty. These restrictions include:
(a) a curfew of up to 16 hours per day
(b) restrictions as to where the “controlee” lives and who he can admit to his home
(c) restriction on association and communications with specified people, or people in general
(d) a requirement to allow themselves to be monitored electronically and have their photographs taken (i.e. be spied upon)
The full list of restrictions that can be included in an order can be found in section 1(4) of the 2005 Act.
The issues
Control Orders were advanced by the last Government as a way of keeping the country safe from terrorist and the threat of terrorism. By controlling the lives of those they suspected of being involved in terrorism it was felt that they could prevent terrorist attacks from taking place.
The conditions which must be satisfied before a control order can be issued can be found section 2 of the 2005 Act. The two conditions are:
a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and
b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual.
Once the Secretary of State is satisfied that the above two conditions are met an order can be granted by him. This is where some of the issues begin to arise around Control Orders.
The first of the issues that will be discussed in this post is the issue of who is issuing the order. Under the 2005 Act these orders are issued by the Secretary of State, ordinarily it would be the Home Secretary who makes these orders, but as there is technically only one position of “Secretary of State” with many people appointed to it any of the Secretaries of State could grant an order. These are not orders granted by a court having assessed evidence placed before it, but rather a member of Government issuing an order which places substantial restrictions on a person who is legally innocent (a point that will be discussed below). We have, in effect, a member of the Executive carrying out a judicial function based on nothing more than “reasonable suspicion”. This is an affront to the democratic process; it should not ever be within the Government’s power to carry out such functions. In simple terms impartiality and objectivity cannot be guaranteed and these are important foundations of our justice system: it is fair, impartial and objective.
In the first issue mentioned above there was reference to the subjects of these control orders being legally innocent and this is a crucial point in the argument against control orders. Those subjected to these orders, placing huge restrictions upon their liberty, have not been found guilty of being involved n terrorism by a court. Furthermore, when most of the orders are granted not even accused of being involved in terrorist activities. They are only suspected. Reasonable suspicion wouldn’t, for example, be enough to charge a person with an offence (which could then lead to a period on remand), but yet the Secretary of State can grant an order restricting the liberties and freedom of innocent people on only a reasonable suspicion. There has been no trial, indeed there may not ever be a trial or the trial may take place following a protracted period of time. In Scotland, if a person is accused of a crime (i.e. they have actually been charged with an offence) and that person has then been remanded in custody the trial must commence within 110 days. This is an important safeguard for accused people, who remain innocent until their guilt is proven by the Crown in court, as it prevents the state from holding people in prison for significant periods of time while they remain innocent.
Persons who have a control order are not kept in prison (the system was introduced to replace holding terrorist suspects in prison without charge or trial after it was ruled illegal on Human Rights grounds), but they do have some significant restrictions placed upon them by the state while they continue to investigate their crimes. People can be kept on these regimes for years. At the time of writing a Freedom of Information request had been submitted to the Home Office to try and identify the length of time people are being subjected to these orders.
Last week The Independent carried the story of Cerie Bullivant. Mr Bullivant is a young man who converted to Islam. He had a control order issued in 2006 and had it in place for two years. The High Court quashed is order because the Home Office had failed to show reasonable suspicion that he was a security risk. Three years on his life is still a complete mess and the label of “bomber” still haunts him. This is an innocent man and the State have ruined his life, how many more has this happened to and how many is it currently happening to?
A further issue with these orders that was briefly touched upon above is that they are indefinite in nature. Once they are imposed they remain there until a legal challenge against it is successful, the Secretary of State lifts it or the subject is charged and either convicted or acquitted of terrorist offences. There is nothing else within the criminal justice system which allows the removal or restriction of an innocent person’s liberties and rights on an indefinite basis, especially with so little evidence required. There are issues relating to the evidential matters, which will be discussed later. The very nature of these things being indefinite is an affront to the justice systems in operation of the United kingdom, which are based upon the idea that a person is innocent until they are found guilty by a court or by their own admission. These abhorrent control orders are simply a contradiction of those fundamental principles of justice in Scotland, and the UK at large.
On the evidential front, much, if not all, of the evidence used to secure a control order is secret. In some cases it may not even exist, there is just simply no way of knowing. If there is evidence, it can be of no real value at all. Looking at the case cited above, Mr Bullivant had some small connection to an individual who had actually been convicted of terrorism and that, coupled with what appeared to be a legitimate trip to Syria looks to have been enough to justify two years of strict restrictions on his freedoms and liberties.
The courts have been had a deluge of cases before them on this fact. The Crown was simply not releasing the evidence to the suspect which had lead to the control order. It is another fundamental aspect of the legal system in this country that the Crown must prove its case and not only that but for the accused to know exactly what it is he is being accused of. This makes representation of any challenge against them. The standard state answer appears to be that to reveal the evidence woukd put National Security at risk. This is simply not right, there cannot be a situation where people are detailed in their own homes on state authority which has been granted based on evidence which is secret and has not been seen by any individual other than the Secretary of State who granted the order. This represents a police state.
These are the kinds of abuses that are more commonplace in China, Iran, North Korea and so on. Indeed were stores of such practices to come from these countries the UK Government would be one of the first to condemn them, but instead they see fit to have laws that allow such practices on the statute books in the United Kingdom.
The Future
After several challenges in the Courts to control orders and a change of Government to one that includes the Liberal Democrats, changes are on the way for control orders. Nothing has been confirmed by the Government at the time of writing as to exactly what will replace these orders, but it would be wise to assume that something not to dissimilar will be brought in with a different name.
The public at large should oppose any alternative that does not ensure due process is followed in a timely manner. The powers for terrorist offences are already far beyond those of normal criminal procedure, with pre charge detention of 28 days, no automatic right to access to a solicitor before interrogation by the police. Any replacement for control orders that does not put a suspect before a court to answer the accusations against him (and to date all control orders issued have been to males) and stop persecuting people for years on little more than “reasonable suspicion”. If these people really are as dangerous as the Government would like us to believe then the only place for them to be is in prison where they can do no harm.
These control orders can be issued to anyone for the weakest of suspicion. Mere association with someone who themselves is associated with someone who has, is or may be involved in terrorism could, in theory, be enough for the Secretary of State to issue a control order.
It must not be acceptable for us to trade our freedom and liberties for a perceived security. Do not be fooled, these control orders do not keep the country secure. It is something invented by the last Government, like so much of its criminal justice policy, to make it look as though it was doing something. Often the only effect of these actions was to make people feel safer and more secure, regardless of whether they actually were any safer or more secure. Control Orders are simply an example of this. Think about it: if these people were actually as dangerous as the Government makes them out to be by placing control orders on them, do you really think they would leave them on the streets? No, if there was the evidence that they were actually involved in terrorism they would be prosecuting them and ensuring they do no harm by keeping them in prison.
prout de jure 