Section 14(1) of the Prevention of Terrorism Act 2005 (the 2005 Act) requires the Secretary of State to report to Parliament as soon as reasonably practicable after the end of every relevant three month period on the exercise of the control order powers during that period.
The level of information provided will always be subject to slight variations based on operational advice.
Control orders continue to be an essential tool to protect the public from terrorism, particularly where it is not possible to prosecute individuals for terrorism-related activity and, in the case of foreign nationals, where they cannot be removed from the UK.
As stated in previous quarterly statements on control orders, control order obligations are tailored to the individual concerned and are based on the terrorism-related risk that individual poses. Each control order is kept under regular review to ensure that obligations remain necessary and proportionate. The Home Office continues to hold Control Order Review Groups (CORGs) every quarter, with representation from law enforcement and intelligence agencies, to keep the obligations in every control order under regular and formal review and to facilitate a review of appropriate exit strategies. During this reporting period, seven CORGs were held in relation to the orders currently in force. In addition, further meetings were held on an ad-hoc basis as specific issues arose.
In total, 15 control orders are currently in force, four of which are in respect of British citizens. Three individuals subject to a control order live in the Metropolitan Police Service area; the remaining individuals live in other police force areas. All of these control orders are non-derogating. Two individuals have been charged with breaching their control order obligations; no prosecutions for breaching a control order were completed during this reporting period.
During this reporting period, 96 modifications of control order obligations were made. Twenty-three requests to modify a control order obligation were refused. A right of appeal is provided for by section 10(1) of the 2005 Act against a decision by the Secretary of State to renew a non-derogating control order or to modify an obligation imposed by a non-derogating control order without consent. A right of appeal is also provided for by section 10(3) of the 2005 Act against decisions by the Secretary of State to refuse a request by a controlled person to revoke their order and or to modify any obligation under the order. Two appeals have been lodged with the High Court by controlled persons relating to modifications to orders or the renewal of orders in this reporting period, one of which has been withdrawn.
Both the Secretary of State and the controlled person have appealed to the Court of Appeal in this reporting period in the case of Secretary of State for the Home Department v. Abu Rideh, subsequent to the judgment of the High Court in the substantive review of Abu Rideh’s control order handed down in the last reporting period. Another controlled person has applied to the Court of Appeal for permission to appeal against a High Court judgment in relation to a modification appeal handed down in the last reporting period.
Five judgments have been handed down by the High Court in control order cases during this reporting period and one judgment has been handed down by the Court of Appeal. Two of these High Court judgments were in relation to modification appeals. In Secretary of State for the Home Department v. AM a judgment was handed down on 11 September 2008. The court looked at a number of modification requests and ruled in favour of the controlled person for some of the requests and in favour of the Secretary of State for one. A judgment was handed down in the case of Secretary of State for the Home Department v. AS on 3 October 2008. The court ruled in favour of the controlled person subject to a number of conditions agreed between the parties.
On 14 November 2008, the High Court handed down judgment in the case of Secretary of State for the Home Department v. AR, AT, AU, AV and AW. The judgment related to the generic aspects of the case against five individuals who are subject to control orders. The court found that the proceedings, thus far, were compatible with Article 6—right to a fair trial—of the European Convention on Human Rights (ECHR). The judgment was provisional and will form the background for the substantive review of each of the individual cases under section 3(10) of the 2005 Act.
On 17 October 2008 the High Court handed down a judgment in relation to an application made by The Times Newspapers Ltd to the court to lift the anonymity order in the case of AY. This application was opposed both by the Secretary of State and AY. The court ruled that the anonymity order should remain in place. The Times Newspapers Ltd was granted permission to appeal to the Court of Appeal but no appeal was lodged with the Court of Appeal.
On 24 November 2008 the High Court handed down an oral judgment in the case of Secretary of State for the Home Department v. NN. This judgment, relating to the substantive review of NN’s control order under section 3(10) of the 2005 Act, quashed NN’s control order. A written judgment will be handed down at a later date.
The Court of Appeal handed down judgment in the case of Secretary of State for the Home Department v. AE, AF, AM and AN on 17 October 2008. The Court of Appeal upheld the appeals of the Secretary of State in the cases of AN and AF in relation to Article 6 of the ECHR and dismissed the appeal of AE in relation to Article 6. The Court of Appeal dismissed AE’s appeal in relation to Article 5—right to liberty— of the ECHR. The appeal of the Secretary of State in the case of AM was also dismissed. The Court of Appeal sought to interpret the judgment of the House of Lords in October 2007 in the cases of MB and AF relating to Article 6. In summary, the majority found that there is no principle that a hearing will be unfair in the absence of open disclosure of an irreducible minimum allegation or evidence. The majority also found that in assessing whether a hearing had been unfair the court must look at all the circumstances of the case including the steps taken to disclose material in open, the effectiveness of the special advocates and the difference that disclosure may have made. The Court of Appeal granted permission for AE, AF and AN to appeal to the House of Lords on Article 6 grounds.
Full judgments in most of these cases are available at: http://www.bailii.org/