In the aftermath of the terrorist attacks of 9/11 in the United States and the July 2005 bombings in London, the UK Government sought new ways of dealing with terrorist suspects. As a signatory to the European Convention on Human Rights, the UK was not in a position to utilise Guantanamo Bay style detention camps. However, the Government did want to be able to detain people who were suspected of being terrorists, without actually having to prove that they were terrorists by allowing highly sensitive information to be heard in a public court.

The background to ‘control orders’

The first major anti-terrorism legislation to be passed in the UK was the Anti-Terrorism, Crime and Security Act 2001. Part IV of the Act enabled the Home Secretary to certify non-British terrorism suspects to be detained indefinitely where deportation was not possible. The criteria to be applied were simply that the Home Secretary had a reasonable belief that the foreign national was a risk to national security and reasonable suspicion that he was linked to an international terrorist group. No trial, and therefore no public testing of the evidence, was required. Subsequent detentions took place at several high security UK prison, including Belmarsh and Broadmoor.

It was not long before this type of detention was ruled unlawful by the House of Lords in the case of A and X and Others [2004] UKHL 56 on the basis that the provisions breached the Article 5(1) ECHR right to liberty.

The provision was repealed and replaced by the Prevention of Terrorism Act 2005. This Act empowers the Home Secretary to subject named individuals to ‘control orders’. In order to do this, there must be reasonable grounds for suspecting that the person in question is or has been involved in terrorist-related activity, and it must be considered necessary to restrict their activities and movements in order to protect the public.

Control Orders

A control order is defined by the Prevention of Terrorism Act 2005, section 1(1) 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”. A person subject to a control order may be required to remain at home, on a curfew basis, for up to 16 hours a day, may have access to communications such as telephone and internet restricted, will be required to allow officials to search his home without notice, and be prohibited from associating with certain individuals, and have all visitors screened. These requirements can have a serious affect on the individual suspect. For example, they are unlikely to be able to visit a GP if ill, as clearance will be needed, and no doctors will be able to visit the person at home without prior screening. Such screening can take months to process.

The case law on control orders

The case of Secretary of State for the Home Department v JJ [2007] UKHL 45 marked the first set back for the Government’s proposed use of control orders. The case concerned six Iraqi and Iranian nationals suspected of involvement in terrorism-related activities. They were each subject to stringent control orders involving 18 hour curfews, a strict geographical limit during non-curfew times, and restrictions on meeting any unauthorised persons inside or outside the home. It was held by the House of Lords that the control orders amounted to a breach of the applicants’ Article 5 ECHR right to liberty and were unlawful. However, it was suggested that a curfew of not more than 16 hours per day would be insufficiently stringent to effect a deprivation of liberty, and would therefore be lawful. This was confirmed in the case of Secretary of State for the Home Department v MB and AF [2007] UKHL 46, in which a 14 hour curfew and extensive other requirements, were held to be legal.

More recently, control orders have come under renewed and increased scrutiny from the courts. In the European Court of Human Rights case of A v United Kingdom (App No. 3455/05, The Times Feb 20  2009) the Grand Chamber considered the circumstances of 11 individuals who were subject to control orders and who claimed that the reasons for their detention, and therefore the grounds for suspicion of terrorist involvement, had not been disclosed to them. The Court held that as much information and evidence about allegations against each applicant should be disclosed as possible, without compromising national security or safety. If full disclosure was not possible, measures should exist to enable each applicant to challenge the allegations. This challenge is normally made by a Special Advocate, who has access to information which is not given to the suspected person. This provision was held to be compatible with the right to fair trial guaranteed by Article 6 ECHR. However, it was reiterated that there must be specific details, rather than general assertions, available to the suspect to challenge.

A challenge was subsequently mounted in the UK House of Lords in Secretary of State for the Home Department v AF [2009] UKHL 28. It was held that the decision of the ECHR did apply, and therefore sufficient information would need to be given to the persons subject to control orders for them to be able to challenge the allegations against them. AF was subsequently released, as the Home Secretary did not wish to provide this information, on the basis that to do so may put national security at risk. Another man, AE was also released in September this year, prior to a challenge being mounted in the courts.

These decisions put the control order regime in serious question, despite the Home Secretary stating, after the decision in AF, that control orders were viable. It would appear that in order for the regime to continue to operate, more information will have to be provided to suspects. However, it was precisely because the Government did not wish to disclose this information, particularly through the courts, that the regime was introduced. If the information must be provided, there may be no benefit in utilising control orders over prosecution. These decisions may therefore mark the end of a regime which sought to avoid the obstacles presented by human rights considerations of individuals, in favour of national security as a whole.