16 Oct 2006

Responding to the news that two terrorist suspects being held on Control Orders were on the run

the Director of Liberty, Shami Chakrabarti, said:

“This confirms our worst fears about the farce that is the control orders regime; they are both unsafe and fundamentally unfair. If someone is truly a dangerous terrorist suspect why would you leave them at large? 
 
On the other hand it is completely cruel and unfair to label someone a terrorist and to subject them to a range of punishments for years on end without ever charging them or putting them on trial.”
 
Under the Government’s control order system established in 2005, terror suspects for whom there is not enough evidence for conviction can be tagged, confined to their homes and banned from communicating with others.
 
Jen Corlew on 0207 378 3656 or 0797 3 831 128 
 
NOTES TO EDITORS
 
1. On August 1 2006 the Court of Appeal found that control orders deny an individual’s right to liberty but not his right to a fair trial. Significantly, the Court found that making people subject to curfews and restricting where they can live amounts to imprisonment. 
 
2. June 2006: The High Court declares control orders are incompatible with Article 5 (the right to liberty) of the European Convention on Human Rights and quashes the control orders of six foreign nationals. Fifteen people, both British and foreign nationals, are believed to be on control orders. 
 
3. April 2006: The High Court finds in the control order case “MB” that he was denied the right to a fair trial (Article 6 of the Human Rights Act). 
 
4. 2005: Control orders are brought in by the Government under the 2005 Prevention of Terrorism Act. More details below. 

5. December 2004: Law Lords say holding terror suspects without trial is unlawful. Special Advocate Ian MacDonald QC resigns. 

Summary of the Prevention of Terrorism Act 2005
 
Control Orders
 
The Prevention of Terrorism Act 2005 (PTA) allows for the imposition of ‘control orders ‘for purposes connected with protecting members of the public from a risk of terrorism’. 
 
Restrictions that can be applied under control orders include dictating an individual’s occupation; placing them under house arrest; controlling access to telephones or the internet; and restricting who they meet or communicate with. Restrictions on a person’s movements can be reinforced by an obligation to wear an electronic tag. Whilst the PTA contains a long list of the type of activities that might be prohibited, the Home Secretary has the power to add new restrictions or obligations as he sees fit. 
 
There need not be a connection between the person’s alleged involvement in terrorism and the restrictions imposed by the control order. This is bizarre and alarming: despite the open-ended range of restrictions available, there is no need for them to be tailored to counter the specific threat which the individual supposedly presents. 
 
Breaching the conditions of a control order is a criminal offence, punishable by up to 5 years in prison. 
 
Types of Orders
 
Control orders that the Government considers do not breach the right to liberty, and therefore do not require the UK to opt out of (derogate from) Article 5 of the European Convention on Human Rights are known as ‘non-derogating’ orders. These are made by the Home Secretary, last for a year, and can be renewed every year. The Home Secretary can revoke or modify a non-derogating control order at any time. 
 
‘Derogating orders’ are those which the Government recognise infringe the right to liberty and so require the UK to derogate from Article 5. No such orders have yet been made. 
  
Imposing a Non-derogating Control Order
 
The Home Secretary must simply have ‘reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity’. He must consider it necessary to make an order to protect the public from the risk of terrorism. 
 
The Home Secretary must get the High Court’s authorisation to make the order, either before it’s made or within seven days after it’s been made. The Court can only refuse the authorisation if it finds that the Home Secretary’s decision to make the order is ‘obviously flawed’. 

Once the order has been made the Court will review the decision again at a hearing at which the person subject to the order is represented. However, the Court can consider evidence which hasn’t been and won’t be disclosed to the person or his lawyers. The Court can only quash the order if it considers that the Home Secretary’s decision to make it was flawed. 
 
Definitions of Terrorism
 
In the PTA, ‘Terrorism-related activity’ includes the commission, preparation, or instigation of acts of terrorism, facilitating or encouraging such acts and supporting or assisting those who are engaged in such acts. It is ‘immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism generally’. 
 
‘Terrorism’ is defined as the use or threat of various types of action designed to influence the government or to intimidate the public or a section of the public with the purpose of advancing a political, religious or ideological cause. The types of action that come within the definition include action which involves serious violence against someone or serious damage to property. It also includes action designed to seriously interfere with or disrupt computer systems. 

Control orders have been set deliberately outside the ‘normal’ law. They can not be challenged by judicial review, or under the Human Rights Act.