Control Order Powers

Home Department written statement – made on 15th December 2009.

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Photo of David Hanson David Hanson Minister of State (Home Office) (Crime and Policing)

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, six 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.

During the period 11 September 2009 to 10 December 2009, three non-derogating control orders have been made and served. No control orders have been renewed in accordance with section 2(6) of the 2005 Act in this reporting period. In this reporting period there have been six revocations of control orders that were in force. Three control orders were revoked because it was not possible to meet the disclosure test set out in the June 2009 House of Lords judgment (AF & Others) on article 6 of the European convention of human rights (ECHR) (right to a fair trial). One of these orders was not replaced. In the other two cases new non-derogating control orders with significantly reduced obligations were imposed in their place; the Government argued before the court that in such cases article 6 was not engaged-or, even if it was, the level of disclosure required in AF & Others did not apply. Two control orders were revoked because they were no longer considered necessary. One control order was revoked on the order of the court. In addition to the six revocations of current control orders, one non-derogating control order previously made but not served was also revoked in this quarter.

In total, 12 control orders are currently in force, nine of which are in respect of British citizens. Seven 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. There were no prosecutions for breaching a control order during this reporting period however one individual was charged with seven counts for breach of a control order obligation.

During this reporting period, 77 modifications of control order obligations were made. 29 requests to modify control order obligations were refused.

Section 10(1) of the 2005 Act provides a right of appeal 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. One appeal under section 10(1) of the 2005 Act has been lodged with the High Court during this reporting period. 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. During this reporting period four appeals have been lodged with the High Court under section 10(3) of the 2005 Act.

Six interlocutory judgments were handed down by the High Court during this reporting period in relation to disclosure required to make control order judicial review proceedings under section 3(10) of the 2005 Act compliant with article 6 following the June 2009 House of Lords judgment in AF & Others.

Two of these judgments were handed down in the case of Secretary of State for the Home Department v BB & BC. In the first judgment, handed down on 5 October 2009 in closed only, the court required the Secretary of State to make further disclosure in order to ensure compliance with article 6 despite the court's acknowledgement that the disclosure of this material would cause damage to the public interest. The Secretary of State elected not to make the disclosure identified. Both control orders were revoked and new control orders with significantly reduced obligations were imposed. In the second judgment, handed down on 11 November 2009, the court found that, notwithstanding the new control orders impose less stringent obligations, article 6 applied and that the House of Lords in AF & Others had identified an "irreducible minimum" of disclosure which must be made in all control order cases regardless of the stringency of the obligations. The court granted the Secretary of State permission to appeal and an appeal has been lodged.

A further two judgments were handed down in the case of Secretary of State for the Home Department v AS. At the hearing on 6 and 8 October 2009, the court handed down a judgment in closed only requiring the Secretary of State to make further damaging disclosure to comply with article 6 or to withdraw reliance on the relevant allegations. The Secretary of State elected to make some further disclosure to maintain the control order in force. In an open judgment handed down on 21 October 2009 the court set out the principles of how the court should apply the decision in AF & Others.

An interlocutory judgment was handed down in the case of Secretary of State for the Home Department v AN on 27 November 2009. The court handed down a judgment in closed only requiring the Secretary of State to make further damaging disclosure to comply with article 6 or to withdraw reliance on the relevant allegations. The Secretary of State elected to make some further disclosure to maintain the control order in force.

A further interlocutory judgment was handed down, about which it is not possible to say any more for legal reasons.

Two judgments have been handed down by the High Court in relation to modification appeals during this reporting period. The court handed down judgment in Secretary of State for the Home Department v BH on 17 November 2009. The court found that the Secretary of State's decision to refuse to modify BH's geographical boundary to let him attend legal appointment outside his boundary was lawful. This was against the background that the Secretary of State had offered to modify the control order to allow the visit subject to BH agreeing to submit to a personal search as part of a police escort to and from the appointment. BH had refused to agree to this condition and the Secretary of State had therefore refused the modification. The court decided this refusal was lawful, noting that BH's legal representatives were able to visit him within his boundary instead. However, he commented that in circumstances where it would not be proportionate to refuse to modify the boundary for a purpose such as attending an urgent medical appointment, the Secretary of State would not be able to insist that a controlled person be escorted by the police, if the police would not escort the individual without searching him first.

The court handed down a judgment in Secretary of State for the Home Department v AS on 23 November 2009. The court dismissed AS's appeal against the decision of the Secretary of State to refuse to modify his control order to enable him to stay overnight in London during the judicial review hearing of his control order.

During this reporting period, the Court of Appeal refused permission to appeal in one case. In Secretary of State for the Home Department v AU, the Court of Appeal found AU did not have any real prospect of success in his arguments that the judicial review of his control order had not been article 6 compliant and that when the Secretary of State decided to impose a control order in this case, he was not entitled to consider allegations which formed part of the previous criminal prosecution and sentence.

Full judgments are available at: http://www.bailii.org/