As explained earlier, the Home Office (2009-2010) viewed s44 as an important part of the counter-terrorism strategy because of the hostile environment such powers would provide.
Prima facie the government implemented s44 with the clear intention of ensuring the police
could act when they suspected an individual of being involved in terrorist-related activity without the constraints of establishing reasonable cause, as per ordinary stop and search powers. These widened powers, as explained by Lord Lloyd of Berwick, were designed to facilitate the authorities in their duties of interception and thwarting terrorism (Walker, 2004:
168).42 Stop and search is ordinarily a primary tactic of policing, and during threats of
terrorism can form part of ‘high policing’ strategies which are adopted by the police during covert surveillance, intelligence gathering and clandestine interference of terrorist plots (Weisburd et al, 2010: 726). High policing is significantly different from ordinary policing tactics due to the lack of transparency and accountability, and the carefree disrespect of human rights (Weisburd et al, 2010: 726; Bayley and Weisburd, 2009); risks which will be explored in greater detail in Chapter Two. One may well find that s44 provided police with the opportunity to abuse their position of authority; a concern raised by Lord Carlile QC the Independent Terrorism Review (2009). The relationship between the state or police and society or local communities can be delicate and often fragile (Deputy Assistant
Commissioner Peter Clarke, 2007), therefore wide powers such as s44 risk causing further frictions, which will be considered in Chapter Two. During the ELSA seminar Lord Carlile
QC stated 'I am offended by its use [s44]'43 and it is a 'very major problem' in countering
terrorism.44
In what may be considered an attempt to further support the police and broaden their stop and search powers, the former Labour UK government enacted s58A amending the TA 2000 making it an offence to take pictures of police officers. The decision to do this was validated on the basis that 'there may be situations in which the taking of photographs may cause or
42 Clive Walker 'Terrorism and Criminal Justice: Past, Present and Future' (2004) Criminal Law Review (May),
311, 168 citing Lord Lloyd of Berwick, Inquiry into Legislation against Terrorism (Cm 3420, London, 1996), 10.14 and 10.21.
43 Lord Carlile QC of Berriew (fn 8). 44 Ibid.
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lead to public order situations or raise security considerations’.45 Whilst the anonymity of
officers may be considered important to fulfil their duties, as some examples will show in Chapter Two, this police protection reduced the transparency and accountability of police when executing emergency powers and an increased opportunity to abuse and take advantage of those emergency powers under the TA 2000.
It was noted by Hasisi et al (2009) that police dedicate more time to improving their strategies and tactics of counter-terrorism, spending less time on problem solving and improving their relationship with the community. When stop and search under s44 was enforced by the police the process of gathering evidence and intelligence to support any possible criminal process began. With broad powers the police had wider discretion and able to interpret information given to them by suspects, which could have been used to either detain or release a suspect. Information gathered could also be used to support other measures including deportation, a control order or TPIM. As this thesis will argue, these measures were used as an alternative to divert suspects away from the criminal justice system.
During the Independent Terrorism Reviews by Lord Carlile the use of s44 was criticised,
which David Anderson QC repeated46 in his Independent Terrorism Review (2013),
welcoming the repeal of s44.47 Since its introduction s44 had caused considerable public
outrage and protest, and with the support of Liberty it was challenged in the ECtHR in Gillan
and Quinton v United Kingdom,48 where it was ruled that s44 violated Article 8 ECHR.
Although the decision of the ECtHR will be considered in greater detail in Chapter Two, the decision of the court subsequently led to the then Home Secretary, Theresa May MP,
informing the House of Commons on the 8th July 2010:
"...This judgment found...section 44 of the Terrorism Act 2000 amount to the violation of the right to a private life. The Court found that the powers are drawn too broadly...It also found
45 Fred Miranda 'Jail for photographing police?' British Journal of Photography (28th January 2009), 248
<http://www.bjp-online.com/> accessed 20th May 2012.
46 In 2012 David Anderson QC was appointed as the Independent Reviewer of Terrorism Legislation, replacing
Lord Carlile QC of Berriew.
47 David Anderson QC 'The Terrorism Acts in 2012: Report of the Independent Reviewer on the Operation of
the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006' (July 2013)
<https://terrorismlegislationreviewer.independent.gov.uk/wp-content/uploads/2013/07/Report-on-the- Terrorism-Acts-in-2012-FINAL_WEB1.pdf> accessed 3rd September 2013.
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that the powers contain insufficient safeguards to protect civil liberties...I can therefore tell
the House that I will not allow the continued use of section 44..." 49
In Chapter Two, when examining whether s44 did facilitate in the intelligence and evidence gathering processes to prosecute a terrorist suspect it will be compared to the phenomenon of control orders. It will become clear that they form a separate part of the UK’s preventative strategy rather than a punitive one. Despite this they operate differently: s44 was applied to the wider public, whilst control orders were used against a small number of suspects; the s44 measure is an adaptation of pre-existing criminal justice system powers (eg s1 Police and Criminal Evidence (PACE) Act 1984), whilst control orders operated outside of and parallel to the criminal justice system; s44 was generic in its suspicion of suspects, whilst control orders was based on suspicion formulated by an intelligence-led process undertaken by the Security Services.
CONTROL ORDERS: A KEY ASPECT OF A PREVENTATIVE COUNTER- TERRORISM STRATEGY
During the IRA struggles the British government used powers of internment50 as part of its
approach to counter the terrorist threat presented by the IRA, a measure described as being similar to the control order regime (Patrick Mercer MP, House of Commons (Hansard), 2006-
2007, 22nd February 2007). The use of internment as a measure to prevent terrorism was
challenged in Ireland v United Kingdom51 and was held to be in breach of the ECHR. As a
consequence of 9/11 it was perceived by the former Labour UK government that the TA 2000 would prove to be insufficient alone in its response to the terrorist threat; therefore the
ATCSA 2001 was introduced, implementing the Part 4 measure as discussed earlier. The then Home Secretary, David Blunkett MP, said that the provisions under ATCSA 2001 would result in the 'strengthening [of] our democracy and reinforcing our values is as important as the passage of new laws...the legislative measures…outlined today will protect and enhance
49 House of Commons 'Terrorism Act 2000' 2010-2011 (Hansard, 8th July 2010) 513(29): 540-549.
50 Internment is best understood as an act of confinement and is generally described as imprisonment without
trial. It was used as a strategy known as ‘Operation Demetrius’ by the British Government when attempting to tackle the terrorist threat posed by the IRA. Operation Demetrius was implemented on the 9th and 10th August 1971, during which time mass arrests and internment had taken place.
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our rights, not diminish them...'.52 It is noteworthy that as a result of this counter-terrorism
legislative framework, if a British citizen were suspected of terrorism they would continue to receive the full panoply of protections under the ECHR, whilst the same could not be said for non-British citizens (Hoffman, 2004: 947).
The provisions under Part 4 were challenged in the House of Lords with a committee of nine Law Lords rather than five in the Belmarsh case. The court upheld the former Labour UK government’s argument that there was a public emergency threatening the life of the nation, largely due to the court not being in a position to challenge this assertion. Although the House of Lords declared the provisions unlawful under s4 Human Rights Act (HRA) 1998, the only time they have declared the incompatibility of UK legislation enacted since the HRA 1998 in the terrorism context. Despite the ruling and there being no obligation under the declaration on the government to change the law, they did so. This was done in an attempt to realign these measures, or similar measures, with human rights, which would reduce potential challenges against such measures from being used, although when exploring the control order regime and Deportation with Assurances, in Chapters Three and Four respectively, it will be shown that this did not happen. It will be argued that in changing the law the government could also try and ensure the new measures would enable the UK to deal with terrorist suspects without fear of due process compliance or human rights protections, in the name of national security – demonstrating that human rights would become a victim of its own
success. On the 26th January 2005 the Home Secretary stated a twin-track approach would be
introduced: one to deport foreign nationals with assurances which became known as
Deportation with Assurances; and the other to employ control orders which could be imposed upon national or foreign suspects. This led to the government withdrawing its derogation from Article 5 ECHR and enacting the PTA 2005 to support the latter twin-track approach.
The control order regime was applicable to both British and foreign suspects alike.
Paralleling the previous scheme, it does not require proof of criminal activity and therefore operated outside the traditional operations of the criminal justice system. Control orders were described under s1(1) PTA 2005 as an order 'against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of
terrorism'. The concept of risk is spread across a wide spectrum from serious to insignificant,
52 House of Commons 'Anti-terrorism Measures Debate' 2001-2002b (Hansard, 15th October 2001) 372(30):
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and risk is poorly defined here, although the notion that the risk is connected with terrorism may give the impression that the risk was serious. It becomes relevant when ensuring that the appropriate measures are imposed against a suspect to curtail their ‘terrorist activity’,
although it must be remembered that without any conviction the terrorist activities were allegations for which the suspect is innocent until proven guilty (Article 6(2) ECHR).
As mentioned in the introduction, the PTA 2005 had ‘non-derogating’ and ‘derogating from Article 5 ECHR’ control orders, the latter never being. When non-derogating control orders were made against a suspect “obligations” would be placed against the controlee; intended to curtail the suspect’s terrorist activity. S1(4) PTA 2005 provided an illustrative list of such obligations, ranging from restrictions on possessing certain items, entering certain public areas, electronic tagging curfew and many other obligations. The use of certain obligations, namely prohibitions on association and curfews, became the subject of criticism and were identified for improvement through the replaced TPIMs and ETPIMs, which will be discussed in Chapter Five.
Due to the restriction on a suspect’s freedom caused by the imposed obligations, the Parliamentary Joint Committee on Human Rights described the control order regime as amounting to 'virtual house arrest' with the homes of suspects being used as 'domestic
prisons'.53 There was concern that it could cause a ‘controlee’ to become segregated and
isolated from the wider community, a risk identified by Lord Bingham in Secretary of State
for the Home Department v MB and AF.54 However, Lord Hoffman in Secretary of State for
the Home Department v JJ55 stated that suggestions [such as those by the Joint Committee],
that a control order placed the controlee in prison would be 'an extravagant metaphor'.56 In
their 2010 Report on the renewal of the PTA 2005, the Joint Committee on Human Rights argued that control orders had a much wider effect than the conditions placed upon the controlee. Their acknowledgment and similar recognition from the case of CA v Secretary of
State for the Home Department57 identified that the impact of such counter-terrorism
measures indirectly impacted upon the family of the suspect:
53 Fenwick and Phillipson (fn34) 481-513: 4.
54 Secretary of State for the Home Department v MB and AF [2007] UKHL 46; [2008] 1 AC 499; [2007] 3 WLR
681, paragraph 8 Lord Bingham noted the applicant (AF) ‘was cut off from the outside world’.
55 Secretary of State for the Home Department v JJ [2007] UKHL 45; [2007] 3 WLR 642. 56 SSHD v MB and AF (fn 54) [45].
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'We heard with alarm about the ‘growing use’ of conditions in control orders which require the controlled person to move out of the community in which they live and stay away from it – ‘a form of internal exile’ as it was described. We learned that these ‘relocation conditions’ are being used to require British citizens who have grown up in a particular community to uproot themselves from that community and move to a new and unfamiliar location. The impact of such relocations on the controlled person’s families was described as
‘extraordinary’'.58
In their earlier report of 2005-2006b, the Joint Committee on Human Rights heard evidence that the controlees’ children would live in trepidation and had witnessed their fathers’ being
arrested numerous times. This experience would leave the children 'severely traumatised'.59
Within the neighbourhood, or community of the family, the view of the controlee living under strict conditions caused neighbours to alter their views of the family and the children to be stigmatised at school (Ewing and Tham, 2008). This means that control orders had a much wider effect and raised issues relating to human rights and consequential social risks, which this thesis will argue is a consequence of the counter-terrorism measures adopted by the UK. The allegation that an individual is suspected of being involved with terrorist-related activity is an allegation of the utmost gravity. The control order regime removed traditional rights guaranteed by the criminal justice system and, as will be established in this thesis, created divides and fostered animosity within society towards the UK.
Control orders were viewed by politicians as dangerous and draconian. Having described control orders as being similar to internment used during the IRA conflict, Patrick Mercer MP compared the two measures:
"I saw the effects of internment. I saw the effects of men and women who were released after months in detention without charge and the damaging influence that they had on the counter- terrorist campaign in Northern Ireland. One of my objections to control orders, among many
58 Joint Committee on Human Rights 'Counter-Terrorism Policy and Human Rights (Sixteenth Report): Annual
Renewal of Control Orders Legislation 2010' 2009-2010a Ninth Report (26th February 2010), HC 395/HL 64: 41. 59 Keith D. Ewing and Joo-Cheong Tham ‘The Continuing Futility of the Human Rights Acts’ 2008 Public Law
(Winter), 668-963: 676. Also see: Joint Committee on Human Rights 'Counter-Terrorism Policy and Human Rights: Draft Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2006' 2005- 2006b Twelfth Report (14th February 2006), HC 915/HL 122.
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others, is that they impose a sort of terrorist ASBO status on the individual. Those individuals
cannot help but become iconic in the communities to which they return."60
The experience of police interference and control orders were discussed by the Joint Committee on Human Rights (2005-2006b) and evidence was given by one witness, who stated:
"They [the controlee] live in total seclusion under very strict conditions. They exist with the certainty that they will eventually be arrested again and they suffer severe depression and post-traumatic stress disorders due to their previous harrowing experiences and arrests at
dawn..."61
Although control orders will be discussed fully in Chapter Three, the dominant trends
identified will feed directly into the discussion surrounding the newer TPIMs and ETPIMs in Chapter Five. It will be shown in Chapter Three that the control order regime served a
preventative approach to countering terrorism. Whilst control orders were intended to prevent a suspect from participating in acts of terrorism, the effects were much wider and of a
magnitude that would prima facie contradicted the UK Strategy 2011; in turn, this raises questions about the use of pre-emptive and preventative measures to counter-terrorism. Chapter Three will consider this issue in relation to the potential that techniques of risk assessment have to legitimise or de-legitimise the use of such measures.
CONTROL ORDERS BEING REPLACED BY TPIMS: A NEW PREVENTATIVE MEASURE?
The development of pre-emptive and preventative measures to counter-terrorism has significantly increased since 9/11. There is a degree of Parliamentary acceptance with the lack of use, if any, of the criminal justice system and due process. This may be because modern terrorists place themselves outside the sphere of rationality and deterrence (Fenwick, 2010: 154) and the sanctions of the criminal justice system therefore would not deal with the threat. Many of the measures introduced are reactive from a terrorist threat or court decision, and the introduction and enforcement of those measures by third parties, such as politicians
60 House of Commons 'Prevention and Suppression of Terrorism: Annual Control Order Renewal Debate' 2006-
2007 (Hansard, 22nd February 2007), 434-461: 440.
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and the police respectively, play a quasi-judicial role (Walker, 2010a: 15). Whilst this is a matter to explore in further detail in Chapter Two or Three when addressing matters of Article 6 ECHR, it is important to note that this raises questions and fears that the rule of law may be undermined. Ewing and Tham (2008) believe there is a 'commitment to a weak conception of the rule of law...in the sense of (1) the approach to interpretation; (2) the acceptance of punishment or restraint without conviction; and (3) the tolerance forms of
arbitrary conduct by state officials at various levels'.62
Before the repeal and replacement of the control order regime, various independent reviews were undertaken, the MacDonald Report (2011) noted that the control order regime was obstructing prosecution (2011: 9). The recommendations under the report were intended to re-align this preventative measure with the criminal justice system and develop a regime that aided in the prosecution, conviction and punishment of terrorists. In Chapter Five it will be explained how measures of this nature do not achieve this aim; ultimately supporting Chapter Six in its findings that such measures fail to achieve government aims under the UK Strategy 2011. The MacDonald Report (2011) accepted that there may be circumstances, such as an imminent threat to national security posed by a suspect who could not be prosecuted, which would require the use of powers to restrict the terrorist suspect. Although the campaign group Liberty (2011) welcomed the recommendations under the review and the reforms, Human Rights Watch (2011) conversely argued that the recommendations in the MacDonald Report (2011) do not go far enough to protect human rights, an argument this thesis will consider and conclude upon in Chapter Six.
In relation to measures introduced which work outside of the criminal justice system one must examine the suspects’ rights to due process under Article 6 ECHR. In doing this it can be determined whether safeguards implemented within those measures satisfy those rights, and if not why and extent to which this is the case. It is therefore vital to identify and understand the relationship between the ECHR and UK preventative counter-terrorism measures. The interaction between the ECHR and control orders is of significance in relation to the new TPIMs to understand possible issues and risks that may be replicated by the new