Control Order Powers (11 September 2007 to 10 December 2007)

Home Department written statement – made on 12th December 2007.

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Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

Section 14(1) of the Prevention of Terrorism Act 2005 (the 2005 Act) requires the Home Secretary 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 terrorist-related activity and, in the case of foreign nationals, where they cannot be removed from the UK.

During the period 11 September 2007 to 10 December 2007, there were no new control orders and no control orders have been revoked, or renewed, or expired.

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 each individual poses. Each control order is kept under 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, six review groups 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, 14 control orders are currently in force, eight of which are in respect of British citizens. Four of the individuals live in the Metropolitan Police Service area with the rest living within other police force areas.

During this reporting period, 47 modifications of control order obligations were made. Fifteen requests to modify a non-derogating control order obligation were refused. A right of appeal exists in section 10(1) and (3) of the 2005 Act against decisions by the Secretary of State to modify an obligation imposed by a non-derogating control order, without consent, and to refuse a request by a controlled person to modify any such obligation. Appeals have been made in respect of two modification requests that were refused. One modification appeal made by a controlled individual was heard on 25 September 2007 and it was dismissed by the High Court. The other modification appeal has not yet been heard.

There have been no prosecutions of controlled persons for breaches completed during this reporting period. An individual who is not subject to a control order was, however, found guilty on 10 September 2007 of assisting an individual to breach his control order.

Judgments relating to a number of control orders were handed down by the House of Lords on 31 October 2007. The House of Lords had heard the cases of JJ and others, MB, AF and E in July and considered both articles 5 (Right to Liberty) and 6 (Right to a Fair Trial) of the European Convention on Human Rights (ECHR). In relation to E, the House of Lords also considered the extent, if any, of the Home Secretary's duties under section 8 of the 2005 Act.

The House of Lords upheld the control orders regime and the effect of the judgment is that no existing control orders need to be weakened. Furthermore, their Lordships did not find that the review process in the cases before them had necessarily been unfair.

In relation to article 5, the House of Lords agreed unanimously that control orders with curfews of up to 14 hours did not amount to a deprivation of liberty under article 5. It was held by a 3:2 majority that control orders with 18-hour curfews do amount to a breach of article 5. The Home Secretary is disappointed that the House of Lords found against control orders containing 18-hour curfews which she feels are necessary, in certain circumstances, to protect national security. The Home Secretary believes that the ruling does, however, allow us to impose curfews of up to 16 hours.

In relation to article 6 the House of Lords unanimously held that a non-derogating control order does not amount to a criminal charge. It was further held by a majority of 4:1 that procedures for the courts to review non-derogating control orders—in particular the procedures for withholding closed material—do not inevitably amount to a breach of the civil limb of article 6. It will now be for the High Court to review the cases of AF and MB in light of their Lordships' decision and determine whether they are article 6 compliant.

In the case of E, the House of Lords upheld the Home Secretary's arguments that it is not a pre-condition to the making of a control order that that she must consult with the chief of the police force about whether there is evidence available that could realistically be used to prosecute the person for a terrorism-related offence, and that there must be an absence of a reasonable prospect of prosecution for such an offence. They found that the duty to consult with the police with regard to prosecution would only lead to the control order being quashed in exceptional cases.

There have been no substantive reviews during this quarter, since the section 3(10) review for GG & NN, which commenced on 9 November 2007, and was adjourned on 12 November 2007.