31 Oct 2007

This morning the Law Lords dealt a significant blow to the control order regime whilst stopping short of outlawing the controversial policy altogether.

Liberty Director Shami Chakrabarti said:

“These decisions will cause few celebrations at Liberty or the Home Office, and fully satisfy neither fairness nor security. The authorities have rightly lost their most draconian 18-hour curfews without trial. Whilst that is a body blow to Blairite policy, it is now left to the Strasbourg Court or Westminster Parliament to restore the age-old right to a fair trial.”

Legal findings which undermine the use of control orders include:

●18-hour curfews are in breach of the right to liberty protected by Article 5 of the Human Rights Act [footnote 1]

● Control orders must be subject to civil fair trial procedure which was breached in some cases by the “special advocate procedure”. These are referred back to the lower courts for re-consideration. [footnote 2]

Findings which uphold the use of control orders in some cases include:

● 12-hour curfews did not breach the right to liberty. [footnote 3]

● Control orders were found not to constitute a criminal penalty and thus do not engage criminal fair trial procedure. [footnote 4]

Liberty is disappointed with the notion that anyone may be subject to such indefinite community punishments (even lower level control orders) without the charges, evidence and proof required by a criminal trial. The Home Office will likely be particularly disappointed with the finding on 18-hour curfews which are the only arguably effective ones from a security perspective.

In a passage which could influence future debates about detention without charge, Lord Brown of Eaton-under-Heywood said: “Article 5 [the right to liberty] represents a fundamental value and is absolute in its terms. Liberty is too precious a value to be discarded except in times of genuine national emergency. None is suggested here.”

Lord Bingham of Cornhill said: “Their lives were wholly regulated by the Home Office, as a prisoner’s would be, although breaches were much more severely punishable. The judge’s analogy with detention in an open prison was apt, save that the controlled persons did not enjoy the association with others...”

Contact: Jen Corlew on 0207 378 3656 or 0797 3 831 128


Notes to Editors

[1] Decision in JJ and others in a 3 to 2 verdict with Lords Hoffmann and Carswell dissenting.

2 Decision in MB and AF in a 4 to 1 verdict with Lord Hoffman dissenting.

3 Decision in E and S in a 5 to 0 verdict.

4 Decision in MB and AF in a 5 to 0 verdict. Control orders are based upon “reasonable suspicion” of terrorist links. These are usually based upon secret intelligence that neither the suspect nor his lawyers may see. Instead a vetted “special advocate” is appointed by the Attorney General to represent the interests of justice during closed hearings.

● The Law Lords decision in JJ & MB & E v Secretary of State for the Home Department was made public on 31 October 2007. For a copy of Liberty’s intervention in the case contact jenc@liberty-human-rights.org.uk

TIMELINE:

4 July 2007: Law Lords consider the legality of control orders. Latest Home Office figures indicate that out of 17 control order suspects, seven have absconded.

18 June 2007: One control order suspect absconds, raising the total number to seven.

23 May 2007: Three additional control order suspects abscond.

17 January 2007: Another control order suspect absconds.

17 October 2006 – Home Office Minister Tony McNulty tells BBC’s Newsnight that a stronger version of control orders which would depart from the European Convention on Human Rights may be necessary.

16 October 2006: The Home Office announced that two terror suspects on control orders had absconded.

1 August 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. Curfews are reduced to 14 hours per day.

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 Iraqis who have 18-hour curfews.

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).

2005: Control orders are brought in by the Government under the 2005 Prevention of Terrorism Act. A control order severely restricts who a person can meet, where they can go and all cases have involved electronic tagging. Restrictions include 18-hour curfews and bans on unauthorised visitors and internet access. Control orders can last indefinitely. The person does not have to be accused of any crime and does not have to be told why he is under suspicion.

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