Anti-terrorism control orders: liberty and security still in the balance

Anti-terrorism control orders: liberty andsecurity still in the balance

Ed Bates*Lecturer in Law, University of Southampton

The compatibility of anti-terrorism control orders with Arts 5 and 6 of the EuropeanConvention for the Protection of Human Rights and Fundamental Freedoms 1950 was thesubject of litigation culminating in three House of Lords’ judgments in late 2007, and afurther case on Art 6 will be argued before a nine-panel House of Lords in March 2009.To date, the litigation has required important modifications to be made to how controlorders work, but the regime provided by the Prevention of Terrorism Act 2005 remainsessentially intact. The government therefore claims that control orders strike an appro-priate balance between the interests of liberty and security. This paper critiques the roleplayed by the courts in challenging control orders under human rights laws. It argues thatit is necessary to incorporate the right to freedom of movement into UK law in order toallow a proper balance between liberty and security to be effected by the courts.

1. THE ANTI-TERRORISM CONTROL ORDER

In March 2005 the Prevention of Terrorism Act 2005 (PTA) was passed in 17 daysamidst much controversy.1 It introduced the anti-terrorism control order,2 the govern-ment’s response to the Law Lords’ condemnation of s 23 of the Anti-Terrorism Crimeand Security Act 20013 (ATCSA) in the Belmarsh detainees’ case.4 The new orderswere presented as a non-discriminatory and proportionate anti-terrorism tool that

* Thanks go to Professor Laurence Lustgarten, Dr Richard Kirkham and to the two anony-mous reviewers for comments on an earlier draft. Thank you also to Tom Hickman. Any errorsare the author’s alone.1. See J Hiebert ‘Parliamentary review of terrorism measures’ (2005) 68 MLR 676.2. The PTA provides for: (i) derogating control orders (see, in particular, ss 1 and 4–6) and(ii) non-derogating control orders (see, in particular, ss 1 and 2–3). Only the latter have beenused to date and references to ‘control orders’ that follow herein are to non-derogating controlorders. A full analysis of the working of the PTA and the control orders scheme is beyond thescope of this paper. See Lord Carlile Reports of the Independent Reviewer Pursuant to Section14(3) of the Prevention of Terrorism Act 2005 (2006 (First Report), 2007 (Second Report), 2008(Third Report)); C Gearty Civil Liberties (Oxford University Press, 2007) at pp 114–121;C Walker ‘Keeping control of terrorists without losing control of constitutionalism’ (2007) 59Stanford Law Review 1395 and L Zedner ‘Preventive justice or pre-punishment: the case ofcontrol orders’ (2006) 59 Current Legal Problems 174.3. See A Tomkins ‘Legislating against terror: the Anti-Terrorism, Crime and Security Act2001’ (2002) PL 205.4. A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68. SeeA Tomkins ‘Readings of A v Secretary of State for the Home Department’ (2005) PL 259.

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would manage the risk posed by those identified by the government as a terroristthreat, yet who could neither be prosecuted nor deported.5

Since March 2005, approximately 31 people have been made the subject of controlorders.6 On 10 September 2008, 16 were in force, 12 concerning non-nationals.7 Theorders are civil in nature, but entail a criminal offence if breached.8 An individual doesnot have to commit a specific act of terrorism to be subject to such an order,9 which,as we shall see, may curtail his or her freedom in very significant ways. The proce-dures for affirming and reviewing such orders rely on a low standard of proof, plus theuse of special advocates and closed material. In that respect they have much incommon with the scheme relevant to the Belmarsh case, when the Law Lords hadavoided comment on these issues. They were central to consideration of certaincontrol order cases which will be the focal point of this paper.

At the time of writing the PTA has been renewed (by affirmative resolution) onthree occasions, with little meaningful parliamentary scrutiny.10 Each time it receivedthe broad backing of the legislation’s independent reviewer (Lord Carlile),11 but alsoforceful criticism from bodies such as the Joint Committee on Human Rights12

(JCHR). As with s 23 of the ATCSA, therefore, the main human rights challenge camevia the courts, a milestone being reached in late 2007, when the House of Lordsdelivered three judgments,13 concerning four appeals. This followed comments fromthe then Home Secretary14 about the courts’ role in frustrating anti-terrorism laws, andveiled threats that, if the Law Lords’ judgments required it, the government would

5. Control orders were part of a ‘twin-track’ approach. For non-nationals who could not bedeported on the basis of Chahal v United Kingdom (1996) 23 EHRR 413 (upheld in Saadi vItaly (Application No 37201/06) (2008) 46 EHRR 179), the government proposed negotiating‘Memoranda of Understandings’ with the relevant countries. On the legal obstacles to this seeAS & DD (Libya) v Secretary of State for the Home Department & Another [2008] EWCA Civ289.6. See Lord Carlile Third Report, above n 2, para 11 (and Annex 1).7. Tony McNulty (Minister for Security, Counter-Terrorism, Crime and Policing), HC Deb,vol 479, col 136WS, 15 September 2008.8. PTA, s 9.9. See PTA, s 1(9).10. See the extremely critical comments in Joint Committee on Human Rights (JCHR)Counter-Terrorism Policy and Human Rights (Ninth Report): Annual Renewal of ControlOrders Legislation 2008 Tenth Report of Session 2007–08, HL 57/HC 356 (JCHR Third Reporton Control Order Renewal) at paras 19–34.11. Lord Carlile Third Report, above n 2, para 76. See also his First Report (para 61) andSecond Report (para 7).12. See, amongst others, JCHR Third Report on Control Order Renewal, above n 10; JCHRCounter-Terrorism Policy and Human Rights: Draft Prevention of Terrorism Act 2005 (Con-tinuance in force of sections 1 to 9) Order 2006 Twelfth Report of Session 2005–06, HL 122/HC915 (JCHR First Report on Control Order Renewal); Counter-Terrorism Policy and HumanRights: Draft Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order2007 Eighth Report of Session 2006–07, HL 60/HC 365 (JCHR Second Report on ControlOrder Renewal).13. Secretary of State for the Home Department v JJ [2007] UKHL 45, [2008] AC 385 (JJ);Secretary of State for the Home Department v MB and AF [2007] UKHL 46, [2008] AC 440(MB and AF); Secretary of State for the Home Department v E [2007] UKHL 47, [2008] AC 499(E). See K Ewing and J-C Tham ‘The continuing futility of the Human Rights Act’ [2008]PL 668.14. See John Reid (Home Secretary), HC Deb, vol 460, cols 1431–1432, 24 May 2007.

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consider derogating from the European Convention for the Protection of HumanRights and Fundamental Freedoms 1950 (ECHR).15 Following the judgments,however, the control order scheme has been portrayed by the government as upheld bythe courts and compliant with the ECHR.16

This paper provides a critical perspective upon the role of the courts in assessingthe human rights compatibility of control orders. It considers the significance of theHouse of Lords’ judgments and addresses subsequent cases before the lower courts,together with other developments. To this end, part 2 analyses and critiques thecase-law from the perspective of the ECHR, Art 5: the right to liberty. Parts 3 and 4do the same for the right to fair trial, which was relevant in the control order casesfrom two main perspectives: above all, whether ‘controlees’ should benefit fromcriminal fair trial safeguards (part 3) and, if not, whether the protection afforded by aspecial advocate sufficed for the ECHR, Art 6(1) more generally (part 4). Part 5,‘From executive detention to control orders’, provides a broader criticism of the LawLords’ role in scrutinising anti-terrorism laws. Finally, in part 6, it is argued that thegovernment’s claim that non-derogating control orders strike an appropriate humanrights balance is incorrect. The point will be made that, in fact, under the HumanRights Act 1998 (HRA), the courts are not properly equipped to strike the rightbalance between liberty and security, as the right to freedom of movement has notbeen incorporated into domestic law.

2. NON-DEROGATING CONTROL ORDERS, ‘DEPRIVATION OF LIBERTY’AND ECHR, ART 5

The PTA provides a non-exhaustive list of restrictions that may be imposed oncontrolees,17 but stipulates that non-derogating control orders must not effect a dep-rivation of ‘liberty’ within the meaning of the ECHR Art 5.18 Their Lordships’judgment in JJ19 concerned six respondents (all non-nationals) subjected to the moreor less standard form of control order that was initially imposed under the PTA, butwhich the controlees, as well as bodies such as the JCHR argued, amounted to adeprivation of liberty.20 The controlees had to wear an electronic tag and reside in

15. Ibid, col 1428.16. Tony McNulty (Minister for Security, Counter-Terrorism, Crime and Policing), HC Deb,vol 477, col 39WS, 12 December 2007 and Tony McNulty, Letter to The Guardian,24 December 2007.17. PTA, s 1(4).18. Ibid, s 1(2)(a).19. See n 13 above. See D Feldman ‘Controlling control orders: Article 5 ECHR and thePrevention of Terrorism Act 2005’ [2008] 67 CLJ 4.20. See JCHR First Report on Control Order Renewal, above n 12, paras 36–42, plus Secondand Third Reports, paras 21–29 and 35–49, respectively. See also Secretary of State for theHome Department v JJ and Others [2006] EWHC 1623 (Admin) and Secretary of State for theHome Department v JJ and Others [2006] EWCA Civ 1141, [2007] QB 446. In Secretary ofState for the Home Department v E and S [2007] EWCA Civ 459 the Court of Appeal disagreedwith the High Court’s conclusion (Secretary of State for the Home Department v E [2007]EWHC 233 (Admin)) that a control order with a 12-hour curfew period was unlawful. Thisthrew into doubt another decision regarding a 14-hour curfew period: Secretary of State for theHome Department v AF [2007] EWHC 651 (Admin), which was appealed to the House ofLords.

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a designated one-bedroom flat, which could be searched at any time and was de-liberately located in an area unfamiliar to them. All communication equipment wasprohibited except a fixed landline. They could only leave their flat between 10 am and4 pm (an 18-hour curfew), and had to report to a monitoring company on departingand returning, and to the police twice a day. Outside curfew hours they were confinedto a defined urban area (which excluded the controlee’s previous residence), whichincluded a mosque, a hospital, primary healthcare facilities, shops and entertainmentand sporting facilities. Visitors to the flat and pre-arranged meetings outside curfewrequired Home Office authorisation and submission of names, addresses, dates ofbirth and photographic identity.

By three (Lord Bingham of Cornhill, Baroness Hale of Richmond and Lord Brownof Eaton-under-Heywood) to two (Lord Hoffmann and Lord Carswell) their Lordshipsheld that the situation just described was a deprivation of liberty within the meaningof the ECHR, Art 5.21 However, the House unanimously agreed with the lower courts’decision that there had been no deprivation of liberty in the AF22 and E23 cases. In AFthe controlee was subject to similar restrictions to JJ, except he was allowed to remainin his own flat, permitted to attend one specified mosque only, and subject to a 14-hourcurfew, outside which communication was banned with specified individuals only.24 Ewas subjected to similar restrictions, but allowed to stay in his home, which was closeto relatives, and subjected to a 12-hour curfew, outside which he could meet peopleand attend his chosen mosque.

(a) When does a control order effect a deprivation of liberty withinthe meaning of ECHR, Art 5?

The Strasbourg Court has held that there is a deprivation of liberty for house arrest for24 hours a day,25 for detention in an open prison, and even for non-consensual‘confinement in a particular restricted space for a not negligible length of time’.26

Nonetheless, and in apparent contradiction to this last statement, it has determinedthat there is no deprivation of liberty in cases where suspected criminals have beensubjected to 12-hour curfews and mere restrictions on their general movements.27

Here the court usually finds there to be an interference with the right to freedom ofmovement, which is protected by Art 2 of Protocol 4 to the ECHR, which the UK hasnot ratified. The control orders discussed above, which included substantial curfewscoupled with other severe restrictions, therefore required a searching examinationof the Art 5 jurisprudence in order to see whether they effected a deprivation ofliberty.

21. Accordingly, the Law Lords ruled, by a majority, that the control order had to be quashed,since the Secretary of State had had no power to make it.22. See n 13 above. MB did not appeal on Art 5 issues.23. See n 13 above.24. MB and AF, above n 13, at [9].25. Mancini v Italy (Application No 44955/98) judgment of 12 December 2001.26. Storck v Germany (2005) 43 EHRR 96 at para 74 (not cited by the Law Lords).27. The cases include Ciancimino v Italy (1991) 70 DR 103; Raimondo v Italy (1994) 18EHRR 237; Labita v Italy (Application No 26772/95) judgment of 6 April 2000; and Trijonisv Lithuania (Application No 2333/02) admissibility decision of 17 March 2005.



The Law Lords in JJ all accepted that Guzzardi v Italy28 provided the best guid-ance29 for their Art 5 inquiry. It concerned a suspected mafia member who had beenbanished to a 21/2 kilometre part of a small island off Sardinia. The 9-hour curfew hewas subjected to was therefore a comparatively minor feature of a severe regime: hecould live with his family but was housed in dilapidated accommodation; there werereporting obligations, he could not leave the island and could move around only ‘a tinyfraction of [it] . . . [for which] access was difficult and about nine-tenths of whichwas occupied by a prison’;30 he could not visit the local town, so his company was‘principally . . . other persons subjected to the same measure and of policemen’, hencethere were ‘few opportunities for social contacts’. The court recognised that the‘difference between deprivation of and restriction upon liberty is . . . merely one ofdegree or intensity, and not one of nature or substance’.31 It said that the concept of‘liberty’ was not confined to ‘classic detention in prison’ but had to be seen in the lightof ‘developments in legal standards and in attitudes’.32 It was necessary to look at theapplicant’s ‘concrete situation’ by taking account of ‘a whole range of criteria such asthe type, duration, effects and manner of implementation of the measure in ques-tion’.33 The court saw the regime as having been imposed for an unacceptable duration(16 months).34 However, the conclusion that there was a deprivation of liberty was stillonly reached ‘on balance’,35 and by the narrow margin of 11 to 7. In its reasoning thecourt accepted that the point at which there is and is not a deprivation of liberty isindistinct, and that in borderline cases it could be ‘a matter of pure opinion’.36

Guzzardi is open to interpretation, and the three to two division in JJ reflected this.For the minority (Lords Hoffmann and Carswell), Art 5 was about classic, ‘physical’detention. A controlee had to be actually imprisoned or in circumstances which forpractical purposes came very close to imprisonment for there to be a deprivation ofliberty.37 This stance echoed two strong dissenting opinions presented in Guzzardiwhere it was argued that the terrorist/Mafioso context to the case had to be taken intoconsideration in assessing the limits of Art 5.38

The majority approach in JJ, by contrast, adopted what might be described as aqualitative approach to Art 5. It took as its starting point the core element of confine-ment, ie the length of the curfew.39 But it also took account of other factors, and so ‘theimpact’ that the control order generally had ‘on the life the person would have been

28. Guzzardi v Italy (1981) 3 EHRR 333.29. Cf Lord Bingham (JJ, above n 13) at [13].30. Ibid, at [95].31. Ibid, at [93].32. Ibid.33. Ibid, at [92].34. Ibid, at [95].35. Ibid, at [95]. The European Commission of Human Rights had been unanimous inconcluding that Art 5(1) applied. Amongst other things it noted the ‘almost continuous super-vision’, that Guzzardi was ‘not in a position to make social contacts . . . [and could not] takepart in normal social life’, plus the regime endured for ‘a long period’: Guzzardi v Italy, SeriesB Vol 35 (1979–1980) at paras 96–98.36. Ibid. See Lords Bingham in JJ, above n 13, at [16] and Brown at [96], and Baroness Haleat [58].37. Lord Hoffmann at [44]; see also at [45].38. See the dissenting opinions of Judge Fitzmaurice and Judge Matscher in Guzzardi.39. Lord Bingham in E, above n 13, at [11] and Baroness Hale at [25]. See also Lord Brownin JJ, above n 13, at [108].



living otherwise’;40 it acknowledged that the controlee’s life as a whole could becontrolled by the state to the extent that he was ‘cut off from society’.41 Lord Binghamemphasised the general social isolation imposed on the JJ controlees who had beenforced to reside in an area away from family and friends and who were subjected towhat was, in effect, ‘solitary confinement’42 for 18 hours a day for an indefiniteduration, lacking proper self-entertainment facilities, being subject to random spotsearches and having little opportunity to interact with the outside world. The lives ofcontrolees such as JJ ‘were wholly regulated by the Home Office, as a prisoner’swould be’;43 an analogy could be drawn with detention in an open prison, except therewas no association with fellow prisoners or equivalent entertainment facilities.

JJ was received by the government44 as effectively indicating that control orderswith a 16-hour curfew, together with the other restrictions applicable in JJ, will notengage Art 5. Indeed, at least four control orders have been modified so that theircurfew periods have been raised to that maximum from 12 hours.45 It is wrong,however, to focus too much on the curfew period alone. Lord Bingham and BaronessHale foresaw that the question of whether there was a deprivation of liberty requiredcase-by-case analysis, it being ‘inappropriate to draw a sharp distinction’ as regardscurfew periods.46 Neither endorsed the 16-hour figure; it is derived from Lord Brown’sjudgment in JJ and its acceptability to the two dissenting Law Lords, Lords Hoffmannand Carswell, who adopted an altogether different approach to Art 5. However,although Lord Brown was prepared to adopt a bright-line rule that a 16-hour curfewwould not amount to a deprivation of liberty, he regarded this as ‘the absolute limit’,47

beyond which (with the other restraints) the Strasbourg Court would, today, ‘surely’48

hold there to be a deprivation of liberty. Indeed, he accepted that the Strasbourg Courtmight conclude that ‘16 hours itself is too long’, but declared that his approach was toleave this question for that court to resolve.49

In subsequent litigation, the lower courts have held that a 16-hour curfew does notnecessarily effect a deprivation of liberty,50 but that it can do so when coupled withother restrictions, the cumulative effect of which is to impose a high degree of socialisolation.51 Aside from the curfew period itself, important factors are whether duringcurfew the controlee is subjected to something close to solitary confinement, and

40. Lord Bingham at [18].41. Baroness Hale at [63]; see also at [60] plus in E, above n 13, at [25].42. Ibid.43. Ibid, at [24].44. See The Government Reply to the Tenth Report from the Joint Committee on HumanRights Cm 7368, p 4.45. See JCHR Third Report on Control Order Renewal, above n 10, para 39. A new controlorder with a ‘16 hour’ curfew was also imposed in late 2007.46. At [16] (Lord Bingham). Cf Baroness Hale at [63] and Lord Carswell at [84]. See alsoLord Brown at [108].47. At [105]; see also at [108].48. At [106].49. Ibid.50. Secretary of State for the Home Department v AE [2008] EWHC 585 (Admin) at [80]. Thecourt nevertheless insisted that a 16-hour curfew could not just be automatically imposed onevery controlee; it would need to be ‘necessary’ on the facts of each case: ibid, at [84].51. Secretary of State for the Home Department v AP [2008] EWHC 2001 (Admin). Theorder imposed a 16-hour curfew plus a prohibition on pre-arranged meetings, except with nearrelatives, and it required that the controlee live outside London (where he and other familymembers lived). Keith J was of the view that Art 5 was engaged: there was ‘the equivalent of



whether he is subjected to a form of internal exile, as when he is forcibly separatedfrom his home environment and close family, and cut off from society more gener-ally.52 The judgments confirm that each case is fact specific, so it is not possible todraw a ‘bright line’ separating a deprivation of liberty from a mere restriction onmovement. Indeed, it has been recognised that for control orders with 14–16-hourcurfews and other severe restrictions amounting to serious social isolation the point atwhich there is a deprivation of liberty is a matter of ‘pure opinion’.53

In the E case, Lord Bingham identified 12 hours as the ‘core element of confine-ment, to which other restrictions (important as they may be in some cases) areancillary, [and which was] insufficiently stringent’ for there to be a deprivation ofliberty.54 However, it is not certain whether the European Court would accord with thisand the other standards employed by the domestic courts on Art 5. The court is clearthat mere ‘special supervision accompanied by an order for compulsory residence ina specified district does not of itself come within Art 5’.55 It has also readily (andunanimously) concluded that there was no deprivation of liberty in cases where therehave been curfew periods of 10–12 hours stretching over substantial periods.However, in these cases, the non-curfew aspects of the regime were much more lax,so they can be easily distinguished from JJ and AF. Typically, the applicant wassubjected to a night-time curfew but few other restrictions,56 such that in the daytimehe or she could carry on with ‘normal’ everyday life. It seems then that the StrasbourgCourt has never dealt with a case equivalent to AF or JJ where there is a curfew periodof over 12 hours and other severe restrictions are imposed.57 Of course, there was adeprivation of liberty in Guzzardi, where the curfew length was 9 hours. But the pointabout that case was surely not so much the curfew period as the overall context inwhich it operated: for 16 months the applicant had been banished from his home towhat was in effect an island prison camp environment with all that that entailed interms of the overall control exerted by the state and the degree of social isolationimposed. To reiterate, the court still only found a deprivation of liberty ‘on balance’.This indicates that the threshold set for Art 5 is set at a high level. But it also

internal exile’ as AP was ‘so socially isolated during the relatively few hours in the day whenhe is not under house arrest’ and was unable ‘to make even social arrangements becausepre-arranged meetings (otherwise than with his mother and his brother) [were] prohibited . . .’:at [97]. Had AP remained in London, ‘so that he could still see and be visited by his mother, hisbrother and his sister’s three children’, there would have been no deprivation of liberty: at [97].See also Secretary of State for the Home Department v AH [2008] EWHC 1018 (Admin),concerning a control order with a 14-hour curfew and with other restrictions the cumulativeeffect of which was to impose a ‘high degree of social isolation’: at [23]. Mitting J described thisas ‘very close to the [Art 5] borderline and well into the realm of “pure opinion” ’: at [22].52. Ibid.53. Ibid (Mitting J at [22]; Keith J at [97]).54. At [25]. Cf Lord Brown in JJ, above n 13, at [108].55. Guzzardi, above n 28, at para 94.56. See Raimondo and Labita (both above n 27) (mafia suspects subjected to 10-hour curfewsliving at home (inviolable) and subject to reporting restrictions). Also see Trijonis, above n 27(12-hour curfew for weekdays and all weekend; Art 5 not engaged as applicant was ‘allowedto spend time at work as well as at home’ during the (almost) 16-month period applicable).For further analysis see Secretary of State for the Home Department v E [2007] EWHC 233(Admin) at [208]–[209] and JJ and Others v Secretary of State for the Home Department [2006]EWHC 1623 (Admin) at [77].57. Cf Lord Carswell at [83].



demonstrates that there can be a deprivation of liberty if there is a curfew period of12 hours or less, provided the regime overall is extreme enough.

Controlees who are subjected to a curfew of significantly less than 16 hours andhave been forcibly relocated (as a number have been) and subjected to a package ofsevere restrictions will be advised to pursue their case in Strasbourg if unsuccessful inthe UK courts. If they do so the European Court of Human Rights may look at a keyissue that was not properly explored in JJ. This is whether the overall duration of thecontrol order should be taken into account in the Art 5 assessment. In Guzzardi, boththe court and the Commission specifically cited this as a factor.58 Its relevance is clearas some controlees enter their third year of control.

(b) Reflecting on the Art 5 litigation

From one perspective it may be suggested that JJ was a victory for a governmentintent on maximising the curfew that control orders may impose. Litigation before thelower courts had forced a reduction in the curfew period, to 12 and sometimes 14hours, to the clear frustration of ministers. From another perspective, however, JJ isimportant in terms of the courts’ role in protecting human rights within the context ofthe debate regarding liberty and security. In JJ it was argued by the Secretary of Statethat,59 given the current security climate, the concept of deprivation of liberty shouldbe interpreted even more narrowly than was ordinarily the case. This would haveallowed the State to subject controlees to even harsher regimes than that applicable(and condemned by the House) in JJ. Lords Hoffmann and Carswell appeared to agreewith the thrust of the Secretary of State’s submissions. In particular, the former notedthat, unlike qualified Convention rights, the right to liberty was framed in terms thatmade it ‘so quintessential a human right that it trump[ed] even the interests of nationalsecurity’.60 Accordingly, it had to be confined to ‘literal physical restraint’;61 otherwisethere was a risk that, ‘the law would place too great a restriction on the powers of thestate to deal with serious terrorist threats to the lives of its citizens’.62

This places in greater perspective the clear rejection, by the majority in JJ, of theSecretary of State’s general argument. Lord Brown in particular was emphatic that:‘[t]he borderline between deprivation of liberty and restriction of liberty of move-ment’ could not ‘vary according to the particular interests sought to be served by therestraints imposed’. For him, ‘[t]he siren voices urging’ that the threshold point for theapplication of Art 5 ‘be shifted to accommodate today’s need to combat terrorism (oreven that it be drawn with such need in mind)’ had to be ‘firmly resisted’. Article 5represented ‘a fundamental value’, it was ‘absolute in its terms’ and liberty was ‘tooprecious a right to be discarded except in times of genuine national emergency. Noneis suggested here’.63

Accordingly, on the one hand, it may be said that there was scope within theStrasbourg case-law for the Law Lords to adopt a bolder approach to Art 5 than they

58. See text accompanying nn 34 and 35 above. Sullivan J had taken this into account: [2006]EWHC 1623 (Admin) at [48].59. See Justice Written Submission on behalf of Justice (intervening in MB and AF before theHouse of Lords), available at http://www.justice.org.uk, at A22.60. At [37].61. At [36].62. At [44].63. At [107]. Cf Sullivan J, [2006] EWHC 1623 (Admin), at [43].



http://www.justice.org.uk

did. On the other hand, however, they rejected the government’s arguments for anapproach that would have considerably reduced the level of protection that provisionafforded. Consequently, if the government now wishes to impose control orders thatare harsher in their effects than have been deemed acceptable by the courts asdescribed above, it will have to resort to derogating control orders. To do this, it willhave to substantiate the seriousness of the terrorist threat to both Parliament and thecourts.64 There has been no suggestion that this will happen, and this is no doubt partlya reflection of the very significant extent to which the government may restrict anindividual’s freedom without engaging Art 5. The issue here is that, as Guzzardi andJJ evidenced, for control orders the threshold for a deprivation of liberty within themeaning of Art 5 is indeed set at a very high level. In this respect, there is a seriouslacuna in positive human rights protection in the UK. The main restraint on the extentof the restrictions imposed by control orders is the ‘long stop’ presented by Art 5,which only applies when there are already fundamental interferences with generalliberty. It is important to appreciate, however, that the high threshold set for Art 5 hasbeen formulated by the Strasbourg Court on the assumption that effective humanrights protection continues below it in the form of the right to freedom of movement,which is a qualified right. As noted above, this right is protected by Protocol 4 to theECHR, which has been ratified by 41 States, but not the UK. This point will bereturned to in the penultimate section of this paper.

Finally, given the continued uncertainty regarding the exact point at which Art 5 isengaged, should Parliament, guided by JJ and other relevant case-law, not now take agreater role in specifying key features of control orders such as the maximum curfewperiod that may be imposed?65 The fundamental importance of the right to liberty wasstressed in the Belmarsh case and one of the principal reasons why Parliament passedthe PTA was to avoid breaches of Art 5. To the extent that the UK may still bebreaching this provision, it is arguably operating a de facto derogation from theECHR. As has been noted above, Art 5 was not engaged in a case when an individualwas subject to a special supervision regime including a 12-hour curfew and residencerestrictions, but not restrictions like tagging and measures the cumulative effect ofwhich is to impose a high degree of social isolation. However, the governmentmaintains that a 12-hour curfew limit would ‘significantly damage [its] ability toprotect the public from the threat of terrorism’.66 Exactly why is unclear, althoughevidently a reduction in the period of actual confinement would reduce the level ofcontrol and place greater burdens on the state in terms of the resources it must committo surveillance.

3. NON-DEROGATING CONTROL ORDERS AND THE PROTECTION OFTHE CRIMINAL LAW

If JJ exposed the limited protection afforded by Art 5 of the ECHR, the conjoinedappeals in MB and AF did the same for another ECHR provision: Art 6. This regulates

64. See PTA, s 4.65. See JCHR Third Report on Control Order Renewal, above n 10, paras 47–48 proposingthat Parliament stipulate a 12-hour maximum curfew.66. See Government Reply, above n 44, p 4. There have been at least seven control orderabsconders. See also the criticism of control orders as ‘not even the second best option fortackling terrorist suspects’ by John Reid (Home Secretary), above n 14, col 1428.



the quality of the judicial process which a controlee must benefit from before a controlorder is confirmed. Its importance is obvious as controlees remain mere suspectsconvicted of no offence; moreover the executive, not the courts, is in the driving seatas regards the power to make a non-derogating control order. This is engaged when theSecretary of State:

‘2(1)(a) has reasonable grounds for suspecting that the individual is or hasbeen involved in terrorism-related activity; and

(b) considers that it is necessary, for purposes connected with protectingmembers of the public from a risk of terrorism, to make a control order imposingobligations on that individual.’67

The low standard of proof required to impose a control order (s 2(1)(a)) had beenvaliantly (but unsuccessfully) opposed by peers during the PTA’s passage.68 Its realsignificance, and the increase in executive powers that the PTA represented, isrevealed by: (i) the very wide range of activity connected to terrorism that is caught bythe definition ‘terrorism-related activity’ and ‘terrorism’;69 (ii) the limited power ofjudicial supervision of the Secretary of State’s initial decision70 to impose a non-derogating control order (by s 3(10) of the PTA the High Court may judicially reviewthe Secretary of State’s decision and quash it if it is ‘flawed’);71 and (iii) the severe dueprocess restrictions potentially impressed on the suspect during this process. Withrespect to this last point, under the PTA the High Court was under a duty to prohibit‘disclosure contrary to the public interest’.72 This has a remarkably broad definition.73

Disclosure must be prohibited if it is contrary to the interests of national security, theinternational relations of the UK, the detection or prevention of crime, or in any othercircumstances where disclosure is likely to harm the public interest.

Two important Art 6 issues were raised in MB and AF. The first concerned whethercontrol order reviews, ie the High Court review of the imposition of a control order,represented a criminal charge for the purposes of the ECHR, Art 6. This homed in onthe key criticisms made of control orders: that the state had replaced the normalcriminal justice system with a parallel, executive-led system based on mere reasonablesuspicion, so denying individuals the key human right safeguards found underArt 6(2)–(3), including, for example, the presumption of innocence and full disclo-sure. If Art 6(2)–(3) applied, a hammer blow would be dealt to control order reviews.

Even if it was held that a criminal charge was not in question, Art 6(1) still appliedto MB and AF’s control order reviews under its ‘civil rights and obligations’ head. Thesecond fair trial issue raised in MB and AF therefore concerned the more specificmatter of the actual fairness of the control order proceedings which each controlee had

67. PTA, s 2(1).68. Proposals for a ‘balance of probabilities’ standard were rejected. The Security Serviceadvised that under this standard ‘we will not be able to secure orders on some of the peopleabout whom it has significant concerns’: Hazel Blears, HC Deb, vol 431, col 1798, 10 March2005.69. PTA, s 15(1) incorporates the comprehensive definition of ‘terrorism’ in s 1(1)–(4) of theTerrorism Act 2000, as to very broad scope of ‘terrorism-related activity’: see PTA, s 1(9).70. See ibid, s 2.71. On this see the Court of Appeal judgment in MB [2006] EWCA Civ 1140, [2007] QB 415.72. PTA, Schedule, para 2(b); Civil Procedure (Amendment No 2) Rules 2005 (SI 2005/656),r 76.2.73. See ibid, r 76.4.



been subject to. The issue here was the effect of the application of the PTA and itsassociated rules on disclosure. Their operation had meant that there had been virtuallyno disclosure to MB and AF.74 MB had, in effect, simply been told that he wassuspected of being an Islamic extremist who wanted to go to fight in Iraq.75 All AF hadbeen told was that he had links with Islamic extremists in Manchester. Each controleecould only deny these vague allegations; they could not personally controvert thefactual basis upon which they were made as they were ignorant of this. So bothcontrolees were totally reliant on the defence to be mounted at the control order reviewby their special advocate, who saw all the evidence in closed proceedings.76 As is wellknown, however, the special advocate system has been dogged by controversy fromthe perspective of fairness,77 sometimes by the special advocates themselves.78 Aftera detailed examination, the JCHR labelled it ‘Kafkaesque’, as it was ‘left with thevery strong feeling that [it was] . . . offensive to the basic principles of adversarialjustice’.79 Accordingly, the basic question was whether control order reviews usingspecial advocates and where there was virtually no disclosure met the standards offairness that Art 6(1) requires.

The two Art 6 issues just referred to will now be examined in turn.

(a) Control order reviews and the lack of criminal fair trial safeguards

For the reasons already alluded to above, the ‘criminal charge’ question was probablythe most important issue raised in the control order judgments. It had been argued withsome authority80 that the nature of the proceedings and the severity of the restrictionsthat could be imposed on an individual entailed that a control order hearing could bethe determination of a criminal charge under an autonomous reading of the ECHR, Art6.81 It should be added that a similar point had arisen in the Belmarsh litigation whenexecutive detention had been in issue. The Court of Appeal82 had then held that thecriminal dimension to Art 6 did not apply, and the Law Lords subsequently left thematter open in the Belmarsh case. In the control order litigation, the lower courtsconsidered themselves bound by the earlier Court of Appeal authority. When the LawLords finally addressed the matter in MB and AF, their unanimous conclusion was thatthe criminal sphere of Art 6 was not in issue.

74. See Lord Bingham in MB and AF, above n 13, at [26]–[27].75. At [38].76. See J Ip ‘The rise of the special advocate’ [2008] PL 717.77. From many sources see Constitutional Affairs Committee The Operation of the SpecialImmigration Appeals Commission (SIAC) and the Use of Special Advocates Session 2004–05,HC 323 and several JCHR Reports including JCHR First Report on Control Order Renewal,above n 12, paras 69–76 and JCHR Second Report on Control Order Renewal, above n 12, paras30–38.78. See, eg, the evidence of Nicholas Blake QC: ‘Minutes of Evidence (12 March 2007)’ inJCHR Counter-Terrorism Policy and Human Rights: 28 Days, Intercept and Post-ChargeQuestioning Nineteenth Report of Session 2006–07, HL 157/HC 790, Q40 and Q44.79. Ibid, para 210.80. See JCHR First Report on Control Order Renewal, above n 12, paras 50–52 and EuropeanCommissioner for Human Rights Report by Mr Alvaro Gil-Robles, Commissioner for HumanRights, on his visit to the United Kingdom CommDH (2005) 6, 8 June 2005, para 20. See alsosubmissions by Justice, above n 59.81. Engel v the Netherlands (1979–1980) 1 EHRR 647.82. A, X and Y and Others v Secretary of State [2004] QB 335 (Belmarsh at the Court ofAppeal).



Only Lord Bingham addressed this point in detail.83 In MB and AF he accepted the‘great force’84 of the submissions that control order hearings should be categorised asthe determination of a criminal charge. It was evident that control orders existed inrelation to the risk of offences which were undoubtedly criminal in nature, but wherethere is an unwillingness or inability on the state’s part to bring a prosecution.Furthermore, Art 6 provides for an autonomous approach to the concept of ‘criminalcharge’ so as to avoid the state circumventing the criminal process by its own deci-sion to reclassify proceedings.85 However, Lord Bingham went on to note that theStrasbourg case-law was not clear-cut on the point at which the full protection of Art6 applied.86 He noted too that previous domestic case-law had made a distinctionbetween preventive measures and those which had ‘a more punitive, retributive anddeterrent object’.87 That case-law did not involve measures the impact of which wasanything like as serious as control orders and, as Lord Bingham noted, it has beenstrongly criticised.88 Nonetheless, he held that, ‘on balance’,89 control order hearingswere not the determination of a criminal charge. It is surely telling that he added thatParliament had gone ‘to some lengths to avoid a procedure which crosses the criminalboundary’. It had carefully drafted the PTA so as to ensure that control orders werepreventive in nature and specifically avoided the criminal law.90

(b) The exceptional nature of control orders

An assessment of the Law Lords’ decision on the criminal charge point must start withthe last observation made by Lord Bingham. When it presented the PTA to Parliamentthe government’s case was that there was a ‘public emergency threatening the lifeof the nation’;91 indeed its ‘understanding of the [terrorist] threat ha[d] advanced’since ‘September 11th’, as British nationals were ‘now playing a more significantrole’.92 It remained crucial for the authorities to act before terrorist crimes werecommitted; late intervention in a terrorist plot was simply not a risk that could betaken. According to the then Lord Chancellor, ‘[n]o government would introduce. . . measures [like control orders] unless they felt compelled to do so pursuant to theduty to protect the people of this nation’.93 So, like the s 23 ATCSA scheme, controlorders were designed to stop future terrorist offences; the full application of theprotection afforded by Art 6(2)–(3) would have defeated the object of such a scheme.If the Lords had held that these provisions applied to control order reviews they wouldalso have had to have made a declaration of incompatibility with respect to relevant

83. At [13]–[24]. Lords Hoffmann at [48]–[49], Carswell [79], Brown [90] and Baroness Hale[56] expressed their agreement.84. At [21].85. Engel, above n 81.86. See the analysis at [23].87. Ibid.88. Lord Bingham cited A Ashworth ‘Social control and “anti-social behaviour”: the sub-version of human rights?’ (2004) 120 LQR 263.89. At [24].90. See Lord Bingham’s reasoning at [24].91. Charles Clarke (Home Secretary), HC Deb, vol 430, col 306, 26 January 2005. Nonethe-less, the earlier derogation under Art 15(1) of the ECHR was withdrawn.92. Ibid. This was before the London bombings of July 2005.93. Lord Falconer, HL Deb, vol 670, col 123, 1 March 2005.



provisions of the PTA. The government would then have been placed under pressureto either abolish the preventative nature of the control order scheme insofar as itattracted criminal law protection, or maintain it but seek a derogation (indefinitely?)from the appropriate Convention provisions.94 Either way the reverberations wouldhave been very significant. It may also be noted that, to date at least, the Strasbourginstitutions have held that serious preventive measures like control orders do notengage Art 6 under its criminal head. Strikingly, Art 6’s criminal protection does notapply to internment,95 and in Guzzardi (a deprivation of liberty) the court rejected theargument that Art 6 applied (at all, in fact) in just one line.96 As to preventive regimeswhich impose mere restrictions on freedom of movement, such as control orders,according to Strasbourg these too are not criminal for the purposes of Art 6.97

It must be said, however, that the Strasbourg jurisprudence on these points is datedand underdeveloped.98 Furthermore, it will be appreciated that internment is onlypermissible if a state has derogated from Art 5 of the ECHR, whilst the right tofreedom of movement is not protected under the HRA. This puts in focus the alarmingconsequences of the Law Lords’ conclusion on the criminal charge question. Itapparently endorses a scheme that is based essentially on executive powers and whichhas much in common with classic internment, albeit technically no actual detentionwithin the meaning of Art 5. However, the HRA lacks the appropriate safeguards toensure that control orders remain strictly proportionate measures.

The general repugnance of control orders to basic human rights principles remainsobvious and it is highly disappointing that the Law Lords failed explicitly to say asmuch, even if they did not hold that criminal charges were in issue. Having said this,the conclusion reached by the House of Lords in MB and AF that control order reviewsdid not entail a ‘criminal charge’ should be seen in the context of the E case, deliveredas part of the House of Lords’ trio of control order judgments. There it was recognisedthat control orders were ‘not intended [by Parliament] to be an alternative to theordinary processes of criminal justice, with all the safeguards they provide for thoseaccused, in cases where it is feasible to prosecute with a reasonable prospect ofsuccess’.99 One of the PTA’s ‘governing principle[s]’ was that control orders shouldonly be imposed where an individual cannot realistically be prosecuted for aterrorism-related offence.100 In this respect, the House of Lords upheld the Court ofAppeal’s finding that once a control order was in place, s 8 of the PTA placed theSecretary of State under a continuing duty to keep the decision to impose it under‘meaningful’ review; it was incumbent on her to provide the police with new material

94. A derogation could only lawfully be made if the conditions set out in Art 15(1) of theECHR were met. See also Human Rights Act 1998, s 14.95. The authorities are dated, however: see Lawless v Ireland (No 3) (1979–1980) 1 EHRR 15(the court’s first ever case) and Ireland v United Kingdom Com Rep Series B No 32-Ipp 114–117, although the court did not decide the issue (Ireland v United Kingdom (1980) 2EHRR 25).96. Guzzardi, above n 28, para 108. The Commission agreed, above n 35, p 42, para 107.97. See Raimondo, above n 27, para 43. See also Arcuri v Italy (Application No 52024/99)admissibility decision of 7 July 2001.98. See n 95 above.99. Lord Bingham in E, above n 13, at [14]. PTA, s 8, concerning potential criminal pros-ecution of controlees, was in issue.100. Ibid.



she may receive which could be relevant to a reconsideration of prosecution.101 LordBingham went on to issue the following, rather qualified, warning:

‘[i]f in any case it appeared that the duty to consult [the police] under section8(2) or the duty to keep the prospect of prosecution under review had beenbreached, and also that but for the breach the individual could and should properlyhave been prosecuted with a reasonable prospect of success, there would be stronggrounds for contending that the control order was not or was no longer necessaryand that the Secretary of State’s decision to make or maintain it was flawed.’102

It was in E therefore, and so in a rather indirect way, that the House confirmed theexceptional nature of non-derogating control orders and emphasised the legitimatebasis upon which Parliament mandated their use. Above all, however, the findingregarding the lack of criminal law protection under Art 6(2)–(3) entailed that thepreventive nature of scheme could stand.

4. CONTROL ORDER REVIEWS: THE TENSION BETWEEN FAIRNESS TOTHE INDIVIDUAL AND NATIONAL SECURITY CONSIDERATIONS

As noted above, the second fair trial issue raised in MB and AF concerned the limiteddisclosure made to the controlees and the role of special advocates. However, as weshall see below, the Law Lords’ ruling on this point was somewhat unclear. What MBand AF established on this aspect of Art 6 has become the subject of differences ofopinion in the lower courts. It seems then that the House of Lords will be called uponto revisit its MB and AF ruling on this matter in a further judgment.

(a) MB and AF before the House of Lords (October 2007) andthe lower courts (2008)

In MB the Court of Appeal103 had held that the special advocate procedure affordedsufficient safeguards for a controlee to satisfy Art 6(1). In MB and AF by four to one(Lord Hoffmann), the House of Lords104 overturned the Court of Appeal’s judgmenton this point, holding that compromises in due process associated with the specialadvocate system and the need to protect national security must not drain the right tofair trial of its substance. Lord Bingham was adamant that ‘[t]he right to a fair hearing[was] fundamental’ and ‘[i]n the absence of a derogation (where that is permissible [iein accordance with the ECHR, Art 15(1)]) it must be protected’.105 Lord Brown106

declared the right to an ‘essentially fair hearing’ as ‘absolute’ and ‘one of altogethertoo great importance to be sacrificed on the altar of terrorism control’. Stressing theimportance of the case for the profile of ‘British justice’, he was resolute that fair trialwas not ‘merely a qualified right capable of being outweighed by the public interestin protecting the state against terrorism’, though he acknowledged that the latter was

101. Ibid, at [18].102. Ibid, at [21]; see also Baroness Hale at [28].103. See n 20 above.104. Lord Bingham at [34]–[35], [41]–[43]; Baroness Hale at [65]–[66]; Lord Carswell at [85];and Lord Brown at [90]–[91].105. At [43].106. At [91].



a vital interest. Drawing a comparison with the Belmarsh ‘torture evidence’ case,107 hewas clear that ‘closed material [must] be rejected [like “torture evidence”] if relianceon it would necessarily result in a fundamentally unfair hearing’.108

Given these strong statements one might have expected that the Law Lords pro-ceeded to condemn the special advocate system outright. However, although LordBingham appeared to come very close to doing so,109 the other members of themajority were more ambivalent. On the one hand, MB and AF established that it didnot automatically follow that there had been a fair trial if a special advocate had acted.On the other hand, it seems that, subject to caveats, the majority saw the specialadvocate system as a generally workable way of guaranteeing a fair trial process, forcontrol order reviews at least. The general tenor of the judgment seems to have beenthat the clash between fairness to the controlee and the need for non-disclosure wasover-dramatised and could be avoided by skilful use of the special advocate system.It was held that the Secretary of State should not be forced to disclose what sheregarded as security-sensitive information,110 but also assumed that the govern-ment was being unnecessarily secretive in control order reviews. Reading down thePTA would encourage a change of approach,111 so that more information112 would bemade available without compromising security interests. Evidence purportedly estab-lishing ‘reasonable suspicion’ against a controlee could be neatly separated intoinformation which amounted to the essence of the case against him and security-sensitive elements which could justifiably be withheld.113 As the Law Lords saw it,therefore, the friction between liberty and security would only occur in respect of a‘few’,114 ‘wholly exceptional’115 control order cases.

On this basis the Law Lords read down the PTA,116 implying into it the need topreserve the right to a fair trial. They held that Art 6(1) could have been violated onthe facts of the MB and AF cases (where there had been no, or virtually no, disclosure),but the cases were returned to the High Court for it to determine the question ‘in

107. A and Others v Secretary of State for the Home Department (No 2) [2005] UKHL 71,[2006] 2 AC 221.108. At [91].109. At [35].110. In order to avoid a breach of Art 6(1) when the controlee needed to know more informa-tion for Art 6(1) compliance, the High Court judge should give the Secretary of State a choice:either disclose more information (possibly in redacted or ‘gisted’ form) until Art 6(1) wassatisfied, or withdraw the information so that the case proceeded without reliance on it. Thelatter option could well affect the court’s assessment, under s 2(1)(a), of ‘reasonable suspicion’;see Baroness Hale at [72]. So the failure to provide more information risked the Secretary ofState failing to obtain a control order.111. Ibid, at [66]. Baroness Hale claimed that a declaration of incompatibility would haveamounted to ‘[i]nviting a derogation in order to cater for the minority of cases’: at [73]. LordBingham was less sure on the appropriate HRA remedy (see Baroness Hale’s comments at [74]and Lord Bingham at [35]) hinting that the better course was a declaration of incompatibility(at [44]).112. Ibid, at [66] and [72].113. Ibid, at [74] and [70].114. Ibid, at [68].115. Lord Brown at [90].116. In accordance with s 3 of the HRA, PTA, Sch 1, para 4(3)(d) ‘should be read and giveneffect “except where to do so would be incompatible with the right of the controlled person toa fair trial” ’: per Baroness Hale at [72]. See also Lord Carswell at [84].



accordance with the approach approved’117 by the House. Problematically, however,all four members of the majority delivered judgments setting out distinct approachesto Art 6(1), leaving the ratio of MB and AF unclear.118 Hence, in the first part of 2008,divergent readings of MB and AF emerged from the High Court,119 and, in October2008, the Court of Appeal120 was divided when it tried to establish the key Art 6principles applicable to control order reviews. The Court of Appeal rejected theunderstanding, supported by certain High Court judges, that MB and AF establishedthat Art 6(1) demands that there is an irreducible core minimum of disclosure thatmust be made to a controlee so as to allow him to rebut the case against him.121 By amajority it accepted that in principle there could be a fair trial even if the controleereceived no or virtually no information of the case against him. It was held that the testfor Art 6(1) was:

‘(i) . . . whether, taken as a whole, the hearing is fundamentally unfair in thesense that there is significant injustice to the controlee or, put another way, that heis not accorded a substantial measure of procedural justice or the very essence ofhis right to a fair hearing is impaired. More broadly, the question is whether theeffect of the process is that the controlee is exposed to significant injustice . . .’

Controlees, the Court of Appeal maintained, should receive as much information aspossible ‘both in terms of allegation and evidence, if necessary by appropriate gist-ing’.122 The fairness of the control order review process depended on an assessment ofall the circumstances of the control order review, the court paying particular attentionto ‘the problems for the controlee and the special advocates’ and ‘how effective thespecial advocates were able to be’.123 Ultimately, however, the Court of Appeal heldthat control order reviews conducted by special advocates could proceed compatiblywith Art 6(1), even if the controlee knew nothing of the allegations or evidence againsthim.124 But it was telling that permission was granted to appeal to the House of Lords,

117. Baroness Hale at [76].118. See Lord Carlile Third Report, above n 2, para 61.119. For the High Court authorities see Secretary of State for the Home Department v AE[2008] EWHC 132 (Admin); Secretary of State for the Home Department v AN [2008] EWHC372; Secretary of State for the Home Department v AF [2008] EWHC 453 (Admin); Secretaryof State for the Home Department v AE (Rev 1) [2008] EWHC 585 (Admin); Secretary of Statefor the Home Department v AF [2008] EWHC 689 (Admin), [2008] 4 All ER 340 and Secretaryof State for the Home Department v AH [2008] EWHC 1018 (Admin).120. Secretary of State for the Home Department v AF and Others [2008] EWCA Civ 1148.121. In AN, above n 119, Mitting J read MB and AF such that, ‘unless, at a minimum, thespecial advocates are able to challenge the Secretary of State’s grounds for suspicion on thebasis of instructions from the controlled person which directly address their essential features,the controlled person will not receive the fair hearing to which he is entitled’: at [9]. AN did notknow the ‘gist of significant grounds of suspicion raised against him’: at [10]. In a closedjudgment Mitting J indicated what needed to be disclosed for Art 6(1) compliance, but in theopen judgment ‘disquiet’ was expressed at this. Intriguingly he added: ‘the factors whichrequire further disclosure in this case are likely to arise in many others, with the result that thenon-derogating control order procedure may be rendered nugatory in a significant number ofcases in which the grounds for suspecting that a controlled person has been involved interrorism related activities may otherwise be adjudged reasonable’: ibid.122. At [64](ii).123. At [64](vi).124. At [64](iv).



Sir Anthony Clarke MR and Waller LJ, VP accepting that there was ‘undoubtedlyscope for argument’125 as to whether their approach correctly reflected MB and AF.

Sedley LJ’s dissenting judgment confirmed this. He took a strong, principledstance toward the role of the courts as guarantors of freedom and liberty insisting thatthere was ‘nothing in the nature of a control order, with its potentially devastatingeffect on the life of the individual affected and his family, which calls for less than themaximum judicial oversight before it is confirmed’.126 For him MB and AF establishedthat ‘a complete withholding of the grounds for suspicion makes a fair hearingimpossible’,127 and this was why he thought that the Court of Appeal’s approach wasfundamentally flawed. Its logic was that there need be no disclosure if a judge couldultimately conclude that the evidence against a controlee was unanswerable. But,Sedley LJ insisted, no judge could ever be sure that there was no tenable answer to thecase against a controlee – the only way of knowing this was by sufficient disclosure.

(b) Back to the House of Lords

Sedley LJ’s judgment goes to the heart of the fair trial issues that will be argued beforea nine-panel House of Lords in March 2009: given the fundamental shortcomingsassociated with the special advocate system can there be a fair trial if a controleeknows nothing or very little of the case against him?

The point here is that the special advocate system may go a considerable way towardsmitigating the obvious due process disadvantage suffered by a controlee; but it does notprovide a guarantee of fairness in all cases. There will always remain the possibility ofan unfair trial if by non-disclosure the only person able to rebut the case – the controlee– is deprived of the opportunity to do so. The test set by the Court of Appeal seeks tominimise that possibility as it proceeds on the basis that a control order review judgemay reach a stage when he or she is confident that the evidence against the controlee isunanswerable, such that non-disclosure does not present a ‘significant injustice’ to thecontrolee. Yet, as Sedley LJ noted, a judge can never really know for sure that the caseis unanswerable. Furthermore, the innocent individual, totally baffled as to why he is thesubject of any suspicion, will pay a very high price for such a judicial error.

The significance of the question posed two paragraphs above is heightened as itseems that, in certain cases, the Secretary of State’s position is that any disclosure,even if in redacted and/or gisted form, will harm national security. A reading down ofthe PTA in accordance with the requirement that there be a core irreducible minimumdisclosure may therefore seriously affect the ability of the Home Secretary to obtaincontrol orders in a number of cases, not just the ‘few’ originally envisaged in MB andAF.128 This is the background against which the Law Lords will have to confront anissue which went unresolved in MB and AF: whether the controlee’s right to receivethe gist of the case against him (sufficient for him to rebut the case, if possible) trumpsarguments, based on national security, that there should be no disclosure at all. Thediscussion below maintains that in the final analysis it does.

125. At [105].126. At [118]. On the impact that control orders may have on the individual concerned seeEwing and Tham, above n 13, pp 674–678.127. Sedley at [119].128. Cf the ‘warning’ presented by Mitting J in AN; see above n 121.



(c) Fair trial under ECHR, Art 6(1)

It is respectfully submitted that the Court of Appeal erred in its reading of the originaljudgment in MB and AF and that, although unclear, the thrust of the Law Lords’reasoning was as follows: the controlee had to benefit from ‘a substantial measure ofprocedural justice’,129 and ‘the very essence of the right to a fair hearing [must not be]impaired’;130 and an assessment of whether these standards were observed was to bemade by the High Court,131 which saw all the evidence; if necessary it should conducta protracted control order review that proceeded by stages and whereby it probed withscepticism132 the claim that no more material could be disclosed without damagingeffect; ultimately everything would depend on the overall effectiveness of the processas a whole, including the special advocate’s contribution, at countering adverseallegations. In this connection, Lord Bingham and Lord Brown both used the phrase‘significant injustice’ to express the breach of fair trial that there would be if thecontrolee through his special advocate was unable to mount a meaningful defence. Toavoid this a controlee might have to know enough of the case against him (quitepossibly in ‘anonymised’ or ‘gisted’ form) and communicate accordingly with thespecial advocate so as to make his or her role effective in terms of rebutting the caseagainst the controlee.133 The judgment should also be seen in the light cast by thefollowing points. First, Lords Bingham and Brown made strong statements134 on theimportance of protecting the right to a fair trial despite the terrorist context to the case,and no Law Lord in the majority expressed disagreement with this. Secondly, the sametwo Law Lords were clear that controlees, although not benefiting from criminal fairtrial standards of protection, were ‘entitled to such measure of procedural protectionas is commensurate with the gravity of the potential consequences’.135 Similarly,Baroness Hale thought it appropriate to ‘apply very similar principles to those appli-cable in criminal proceedings’,136 although perhaps less rigorously.

In summary, the essence of the majority judgment in MB and AF was that Art 6(1)required the controlee to be subject to a legal process that was effective; that is, it hadto be capable of rebutting the argument that the controlee was reasonably suspected ofinvolvement in terrorism-related activity. This, in turn, meant that, if open material didnot establish the case against the controlee, closed material could only be relied uponto the extent that the gist of it had been disclosed.

129. Lord Bingham at [41]; Baroness Hale at [66], [67], [73] and [76]; and Lord Brown at [90].Cf Chahal v United Kingdom, above n 5, para 131.130. Lord Bingham at [41] and Lord Brown at [90]. Cf Tinnelly & Sons Ltd and McElduff andOthers v United Kingdom (1998) 27 EHRR 249 at para 72.131. See Re Bullivant (AG) [2007] EWHC 2938 (Admin) (Collins J setting out the approachthe High Court should take to Art 6(1)).132. Cf the comments made by Collins J, ibid at [6].133. Baroness Hale’s judgment was explicit on this point. The ‘basic requirement’ of a fair trialwas that one ‘know[s] the case against one’ and has ‘an opportunity of meeting it’. As she putit, ‘[t]he material which is crucial to demonstrating the reasonable basis of the Secretary ofState’s suspicions or fears [must] be disclosed in [a] way which will enable the controlledperson to give such answer as he may have’: Baroness Hale at [58]. See also Lord Bingham at[30].134. See text accompanying nn 105 and n 106.135. Lord Brown at [90]; Lord Bingham at [24].136. At [65].



Such a formula would, it is submitted, satisfy the European Court of HumanRights. It has never examined the compatibility of special advocates with Art 6(1)137

and, it must be stressed, it has only expressed a qualified approval for the same in thevery different context of immigration proceedings under Art 5(4).138 It is from thelatter case-law that the test that there must be ‘a substantial measure of proceduraljustice’139 is derived. The relevance of this test to Art 6(1) is limited, however. Article5(4) does not require the level of due process demanded for a full fair trial. It followsthat a hearing may still be procedurally unfair judged by Art 6(1) standards eventhough it affords a controlee ‘a substantial measure of procedural justice’.

The Strasbourg jurisprudence confirms that it is not permissible to water down theprotection afforded by Art 6(1) in the way suggested by the Court of Appeal’s readingof MB and AF. The right to a fair trial is not upheld if a judge maintains that thedefendant has probably not suffered a ‘significant injustice’, or been subject to aprocedure that was not ‘fundamentally unfair’,140 because the case against him isunanswerable. Although there has been no exact equivalent case before the StrasbourgCourt, its case-law strongly indicates that there will be an unfair trial if non-disclosureentails that a defendant does not have access to material that could result in thedismissal of the case against him.141 The principles of fairness and ‘equality of arms’as articulated in the Art 6(1) case-law also confirm the pre-eminence of the right to afair trial.

The equality-of-arms principle ‘requires that each party should be afforded areasonable opportunity to present his or her case under conditions that do not placehim or her at a substantial disadvantage vis-à-vis his or her opponent’.142 Such aformula envisages some procedural disadvantages, hence the possibility, if strictlynecessary, of closed hearings with special advocates and documentation provided to acontrolee in redacted and/or gisted form. The question therefore becomes whether acontrolee is placed under conditions that amount to a ‘substantial disadvantage’ – andhe clearly is if he is unaware of the case against him and is subjected to a legal processthat denies him the ability to rebut it. It may be noted here that the Strasbourg standarddoes not require that the controlee actually suffer a substantial disadvantage in prac-tice, but that he should not be ‘place[d]’ in a ‘substantial[ly] disadvantage[d]’ positionin the first place.

The European Court of Human Rights has also reiterated that ‘[t]he key [general]principle governing the application of Art 6 is fairness’; and that ‘[t]he right to a fairtrial holds so prominent a place in a democratic society that there can be no justifi-cation for interpreting the guarantees of Art 6(1) of the Convention restrictively’.143 It

137. See Baroness Hale at [62].138. See Chahal v UK, above n 5, and Ip, above n 76.139. Cf text accompanying n 129 above.140. The Strasbourg Court has never used such expressions in any of its Art 6(1) case-law.141. See Edwards and Lewis v UK (2005) 40 EHRR 593 (this concerned the determination ofa criminal charge). Furthermore, cases involving anonymous witness statements (where, there-fore, the gist of the case is disclosed) will only be compatible with Art 6 if the conviction is notbased decisively on the anonymous statements; see Doorson v the Netherlands (1996) 22 EHRR330.142. Amongst many authorities see Kress v France (Application No 39594/98) judgment of7 June 2001, para 72 GC.143. AB v Slovakia (Application No 41784/98) judgment of 4 March 2003, para 54 (emphasisadded).



has added: ‘a hearing may be held “unfair” and in breach of Art 6 even in the absenceof proof of actual prejudice’.144 In the context of equality of arms it has stated that:

‘importance is to be attached to, inter alia, the appearance of the fair admin-istration of justice. Here, as in other aspects of Art 6, the seriousness of what is atstake for the applicant will be of relevance to assessing the adequacy and fairnessof the procedures . . .’145

On the first point perhaps one need only refer to the literature questioning the fairnessof special advocate procedures;146 as to the second, it is enough to point out that acontrolee’s basic freedoms are at stake at a control order review.

In summary, the Strasbourg jurisprudence confirms that there is a positive obliga-tion on the state to ensure a fair trial occurs under circumstances that do not place acontrolee under a ‘substantial disadvantage’, an obligation which is enhanced by theseriousness of what is at stake for the individual and the importance that the right toa fair trial has in democratic societies. For control order reviews, this means that theessential minimum standard of fairness set by Art 6(1) requires that a controlee knowsufficient of the case against him, perhaps in redacted or gisted form, for him, with theaid of a special advocate, to rebut it. If the procedure followed is deficient in thisrespect then there will be a breach of Art 6(1); it is not necessary for the controlee orhis special advocate to establish actual unfairness in practice. So, in the final analysis,this core principle of the right to a fair trial prevails over arguments that there can beno disclosure given national security considerations.

It may be added that the upholding of Art 6 in this way would be in keeping withthe Belmarsh case. Admittedly, it did not directly address Art 6 as such, but theimportance of the principle of fairness was at the heart of the condemnatory messageit communicated. The expression ‘detention without trial’ (or similar wording) wasused over 20 times in the Belmarsh judgment not only to condemn the imprisonmentin issue but the absence of a full and proper legal process associated with it. Lord Scottof Foscote observed that the detainees could remain totally ignorant of the grounds ofsuspicion levelled against them,147 having to rely on their special advocate to dischargetheir case, but that the latter might struggle to do so given their inability to obtainanswers from each detainee. He castigated ‘[i]ndefinite imprisonment in consequenceof a denunciation on grounds that are not disclosed and made by a person whoseidentity cannot be disclosed’ as ‘the stuff of nightmares . . .’.148 The situation hedescribed is nevertheless exactly that facing some controlees, bar the fact that, insteadof detention ‘24/7’, they can be subject to what most people would regard as housearrest (albeit often not in their own home) and a host of other restrictions verging oninternal exile.

144. Ibid, para 56 (emphasis added), citing Artico v Italy (1981) 3 EHRR 1, para 35.145. Ibid, para 55.146. See nn 77–78 above.147. See above n 4; Lord Scott at [155].148. Ibid.



5. FROM EXECUTIVE DETENTION TO CONTROL ORDERS

(a) The ECHR’s minimum standards

Belmarsh, it has been said, was ‘a benchmark in public law’,149 and, ‘perhaps the mostpowerful judicial defence of liberty’ for over 200 years. However, the question hasbeen posed whether Belmarsh was a ‘one-off’.150 How, then, do the cases discussed inthis paper, and which formed the sequel to Belmarsh, compare to the benchmark setby that case?

A first general point to be made is that the outcome of the control order cases isalarming from a civil libertarian perspective as the standards set were low. Having saidthis, the discussion above has sought to demonstrate that on the three key questions theLaw Lords addressed they generally reflected the standards set by the StrasbourgCourt. The real issue, therefore, is just how weak those minimum standards are andwhether it is right that the courts should regard them as a ceiling rather than a floor.151

If the Strasbourg jurisprudence is dated,152 or the human rights issue breaks new legalground, as control orders appear to do, then such an approach carries a risk that humanrights protection in the UK will be ineffective. Yet, even if the Law Lords concludedthat Art 6(2)–(3) did not fully apply to control orders, and that Art 5 only had a limitedrelevance to them given the high threshold it sets, it is a major disappointment thatthey did not emphasise that this did not amount to any sort of judicial approval ofthem. They should have stressed that control orders are draconian measures whichraise fundamental questions as to how individuals may be treated in a society claimingto be free, democratic and subscribing to the rule of law.

It is true that the control order regime is an improvement upon s 23 of the ATCSAsince the restrictions that may be imposed on controlees are tailored to the threat thathe is said to pose and this is tested at the control order review. But this should notobscure the reality that the practical difference between executive detention andcontrol orders at their worst may be minimal and only pass muster under the HRAbecause of the low standards set by Arts 5 and 6. Such orders are ‘quite unprecedentedin peacetime’153 with the worst affected controlees, like the Belmarsh detainees beforethem, remaining in what can only be described (at best) as a human rights ‘twilightzone’. Controlees may not be locked up in prison. Yet, 12-, 14- or 16-hour curfews(potentially) in one-bed flats and the other restrictions that can be imposed do notequate with British notions of being ‘at liberty’, even if they suffice for Art 5 of theECHR. Meanwhile, due to the preventive nature of control orders, controlees aredenied the full protection of Art 6. So it is permissible that a control order review needonly establish reasonable suspicion of a very broad array of ‘terrorism-related’ acts.The standard of proof is an ‘even lower hurdle than belief’,154 as Baroness Hale and

149. D Feldman ‘Proportionality and discrimination in ant-terrorism legislation’ [2005] CLJ271 at 273.150. See, eg, C Turpin and A Tomkins British Government and the Constitution (CambridgeUniversity Press, 2007) at p 771. See also Ewing and Tham, above n 13.151. See J Lewis ‘The European ceiling on human rights’ (2007) PL 720, plus Ewing andTham, above n 13, at 685 and 690.152. See n 95 above.153. K Ewing ‘The futility of the Human Rights Act – a long footnote’ (2005) 37 Bracton LawJournal 41 at p 44.154. Baroness Hale in Belmarsh, above n 4, at [223]. Cf her comments in E, above n 13 (at[26]), on the importance of prosecution.



others155 were at pains to point out in Belmarsh. Furthermore, the possibility remains,it would seem, that such suspicions may never be proved (see below). Added to thisare the compromises in due process that are associated with the special advocatesystem, although, as we have seen, the Law Lords are yet to have the final word onthis.

Article 5 clearly prohibits preventive detention, so in this respect controlees wouldbe in a better legal position under the HRA were they imprisoned for a short period oftime. As the ATCSA regime itself evidenced, it is only in Art 15(1), ‘public emer-gency’ circumstances that the state may legitimately institute such a regime, and itmust be ‘strictly required by the exigencies of the situation’, as the Belmarsh casedramatically demonstrated. For this reason, it might be said that the lack of criminallaw protection afforded to the ‘Belmarsh detainees’ under Art 6 might have matteredless. However, with control orders the government can impose measures that wouldpopularly be regarded as house arrest, yet avoid the criminal law fair trial standardsand the stigma of derogating from the Convention, together with its ‘strictly required’test. The impression can thus be conveyed that control orders are not exceptional,raising the prospect that they are considered legitimate for ‘normal’ times. Thisheightens the chances that they may remain on the statute book for years to come, ifnot indefinitely, and imposed on individuals for long periods. Indeed, the governmentnow claims that control orders have been ‘upheld’ by the courts, that the PTA strikesan appropriate ‘human rights’ balance and that it is ‘fully compliant’156 with theECHR. However, this is not the case.

(b) Balancing liberty and security

The risk of terrorism today may provide a legitimate basis for having a preventivescheme like control orders, consistent with the duty states have to protect everyonefrom terrorism.157 The latter is identified in the Guidelines on Human Rights and theFight Against Terrorism promulgated by the Committee of Ministers of the Council ofEurope.158 But the Guidelines insist that measures taken restricting human rights ‘mustbe defined as precisely as possible and be necessary and proportionate to the aimpursued’.159 To what extent do control orders measure up to this guideline?

Control orders set aside normal, criminal law fair trial standards on the basis ofsecurity considerations benefiting the majority. Whilst there may be doubt as to thatbenefit (the controlee is, after all, only suspected of terrorism-related activity), the costto the innocent individual is certainly very high: potentially severe restrictions onliberty and no chance to establish his innocence under the terms of a criminal fair trial.A proper balance between this justification (security) and cost (individual liberty) can

155. See also Lord Hoffmann in Belmarsh (last lines of [87]), and Lord Scott (opening lines of[155]).156. Government Reply, above n 44, p 1.157. On the importance of preventive steps, see JCHR Counter-Terrorism Policy and HumanRights: Prosecution and Pre-Charge Detention Twenty-Fourth Report of Session 2005–06, HL240/HC 1576, paras 6–12. On the nature of the terrorist threat see Home Affairs CommitteeTerrorism Detention Powers Fourth Report of Session 2005–06, HC 910-I, para 44 and ForeignAffairs Committee Foreign Policy Aspects of the War against Terrorism Fourth Report ofSession 2005–06, HC 573, paras 7–15.158. Available at http://www.coe.int, Principle I.159. Ibid, Principle III(2). See also Principle II.



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only be achieved, if at all, if there are stringent safeguards in place to ensure that theindividual does not suffer a disproportionate cost in this regard. The lack of criminallaw protection and the low standard of proof applicable simply must mean that, first,controlees are granted as fair a trial as is possible under the circumstances and,secondly, that the incursions into their freedom that take place are strictly limited towhat is necessary and no more. The first point means that there must be disclosure ofthe gist of the case against a controlee, so that he can rebut that case against him ifnecessary. ‘Reasonable suspicion’ is, after all, a particularly low threshold for thegovernment to satisfy,160 and one that, even with full disclosure, may be difficult for acontrolee/special advocate to negate.

The second point goes to the proportionality of the restrictions that are imposed onthe controlee for the duration of his control order. Article 5 fails to deliver here; itshigh threshold entails that there may be very severe interferences with a controlee’sgeneral liberty extending indefinitely but without engaging the Article. In such cir-cumstances the key right to be protected is the right freedom of movement, which isprotected by Art 2 of Protocol 4161 to the ECHR. Control orders with substantialcurfews will impose a most serious interference with this right and those which endurefor substantial periods may well violate it. However, as noted above, the UK has notratified Protocol 4; the right to freedom of movement is not protected by the HRA. Ananalysis of the Strasbourg jurisprudence on this right in the penultimate section of thispaper evidences that more needs to be done before the claim can be made that controlorders strike an appropriate liberty and security balance.

6. THE RIGHT TO FREEDOM OF MOVEMENT

Several Italian ‘Mafioso’ cases162 reveal that the Strasbourg Court accepts the generallegitimacy of preventive measures restricting freedom of movement for the purposesof fighting serious crime,163 and does not necessarily characterise them as ‘criminal’for the purposes of Art 6.164 Measures that restrict freedom of movement must pursueone of the legitimate aims set out in Art 2(3); these include ‘national security’ and‘public safety’, which clearly covers control orders. However, such measures must be

160. See Silber J’s comment in Secretary of State for the Home Department v AE, above n 119,at [42].161. It provides, so far as is relevant that: ‘1. Everyone lawfully within the territory of a Stateshall, within that territory, have the right to liberty of movement and freedom to choose hisresidence . . . 3. No restrictions shall be placed on the exercise of these rights other than such asare in accordance with law and are necessary in a democratic society in the interests of nationalsecurity or public safety, for the maintenance of ordre public, for the prevention of crime, forthe protection of health or morals, or for the protection of the rights and freedoms of others’.Although the UK has not ratified Protocol 4, the equivalent right is protected in near identicalterms by Art 12 of the International Covenant on Civil and Political Rights 1966, which the UKhas ratified. See General Comment No 27: CCPR/C/21/Rev.1/Add.9 at paras 14–16. The Art2(1) requirement that an individual be ‘lawfully’ present may have significant implications forthe enjoyment of this right by aliens.162. On Italian experience of preventative administrative action see D Leonardi ‘Italy’ inC Gearty (ed) European Civil Liberties and the ECHR (Martinus Nijhoff, 1997) at pp 342–344.163. Labita v Italy, above n 27, para 195.164. Ibid, para 193.



‘necessary in a democratic society’, and so proportionate to those legitimate aims.165

So are these standards reflected in domestic law?In accordance with the Court of Appeal’s judgment in MB,166 at a control order

review the High Court must assess, as a question of fact and on the facts applicable atthe time of its review, whether there exist reasonable grounds for suspecting that thecontrolee is or has been involved in ‘terrorism-related activity’.167 It must also scru-tinise whether a control order and its obligations are necessary for the purposes ofprotecting the public from a risk of ‘terrorism’. On the second point, followingRehman,168 ‘a degree of deference must be paid to the decisions taken by the Secretaryof State’.169 Nonetheless, the court should ‘give intense scrutiny to the necessity foreach of the obligations imposed on an individual under a control order’.170

It is arguable then that the judicial supervision of the imposition of a control ordersuffices initially to protect the right to freedom of movement, provided it takes placewithin a short period of time from when the restrictions are imposed. However,restrictions on the right to freedom of movement must remain justified and propor-tionate in relation to the aim pursued. The first obvious issue here is that the PTAstipulates that control orders must last a minimum of 12 months.171 Even then theSecretary of State may renew a control order by successive 12-month periods, if she,‘considers it necessary, for purposes connected with protecting members of the publicfrom a risk of terrorism’.172 This is an incredibly broad formula, ‘terrorism’ beingdefined by the Terrorism Act 2000, which is not limited to acts occurring in the UK.173

There is no automatic judicial review of this renewal, but an appeal to the High Courtlies under s 10(4) of the PTA. However, this must be dismissed unless the Secretaryof State’s decision as to the necessity of the renewal and the obligations imposed areadjudged ‘flawed’.174 Obviously the provision cannot be read down under the HRA byreference to the right to freedom of movement. More generally, the court’s power ofreview would seem to function at such a high threshold that it does not properlyencompass the necessity test set out in Art 2(3), especially if a deferential approach istaken on the key question of necessity.

165. Of course, Arts 8–11 offer a similar formula. In substantive terms, however, they offerlimited protection. Unlike freedom of movement as a right, the rights interference occurringunder Arts 8–11 tend to be incidental features of a control order, and so are more easily balancedout by the general interest.166. [2006] EWCA Civ 1140, [2007] QB 415.167. Ibid, at [58]–[60].168. Rehman v Secretary of State for the Home Department [2001] UKHL 47, [2003] 1 AC153.169. Above n 166, at [64]; ‘considerable deference’ in Collins J’s view in Re Bullivant No 2,above n 131, at [13].170. Ibid, at [65].171. PTA, s 2(4). The Council of Europe’s Commissioner for Human Rights considered 12months to be the maximum duration a control order should last: above n 80, at [25].172. PTA, s 2(6)(a) (emphasis added).173. Would Art 2(3) of Protocol 4 require that a controlee be a direct threat to the hoststate?174. Section 10(4). For the weak level of accountability that this (as well as Art 3 or Arts 8–11of the ECHR under the HRA) provides see Secretary of State for the Home Department v AH,above n 119, at [26]–[27].



There is internal, executive review of individual control orders,175 and it is claimedthat this does address their ongoing necessity.176 However, the process totally lackstransparency. The dangers associated with an overcautious security establishment andan executive keen to evidence a tough stance on terrorism will be apparent. Thegovernment’s independent reviewer of terrorism legislation (Lord Carlile) has statedthat, despite the internal review arrangements, he is ‘concerned about the ending, orendgame, of each control order’.177 Professor Gearty suggests:

‘[a] real danger . . . of a drift towards a casual, bureaucratic kind of authori-tarianism, with individuals lost to public view by non-derogating control orderswhich are then maintained in perpetuity as much by repressive momentum com-bined with over-cautious risk-assessment as much by any genuine and continuingsocietal need.’178

Perhaps it is not surprising then that since March 2005, just three controlees have hadtheir orders revoked, whilst two others had not been renewed.179 The main exit routefor controlees seems to be deportation (for foreign nationals only, of course): sixhave been deported, three more have been served with notices of intention to deport.No controlee has ever been prosecuted, other than for breaches of control orderconditions.180 As of February 2008, two controlees had been subjected to orders foralmost 3 years; a further five for more than 2 years.181 The duration of these controlorders raises some fundamental questions. In a democratic society, how long can merereasonable suspicion of something as broad as ‘terrorism-related activity’ justify theimposition of measures as serious as control orders potentially are? Two related pointsmay be made in reply.

First, the Strasbourg jurisprudence confirms that ‘reasonable suspicion’ may justifyan interference with the right to freedom of movement for an initial period only. TheGrand Chamber judgment in Labita v Italy182 concerned a suspected mafia membersubjected to a 3-year preventive regime similar to, but considerably less onerous than,many control orders.183 The interference with the right to freedom of movement waspurportedly based primarily upon informer evidence to the effect that Labita hadconnections with the Mafia and so was likely to be involved with organised crime.

175. On the Home Office Control Order Review Group, which meets quarterly, see LordCarlile Third Report, above n 2, paras 46–47, and his concerns expressed at para 48.176. Government Reply, above n 44, p 5.177. Lord Carlile Third Report, above n 2, para 48.178. Gearty, above n 2, p 119. See also D Feldman ‘Human rights, terrorism and risk: the rolesof politicians and judges’ (2006) PL 364 at 379.179. Figures accurate as of February 2008.180. JCHR Third Report on Control Order Renewal, above n 10, para 65. See also Lord CarlileThird Report, above n 2, para 74.181. JCHR Third Report on Control Order Renewal, ibid, para 85.182. See above n 27. On the application of the proportionality principle for Art 2(3), see alsoLuordo v Italy (2005) 41 EHRR 26; Riener v Bulgaria (Application No 46343/99) judgment of23 May 2006; Földes and Földesné Hajlik v Hungary (Application No 41463/02) judgment of31 October 2006; and Bartik v Russia (Application No 55565/00) judgment of 21 December2006.183. For 3 years the applicant had to stay in his own house under a 10-hour curfew (exceptionalcircumstances permitting). No association with others subject to preventative measures or withcriminal records was permitted. Bars and public meetings had to be avoided plus the police hadto be informed on leaving home and on Sunday mornings.



Whilst the court readily acknowledged the ‘threat posed by the Mafia’,184 on the factsit refused to accept the serious interference with Art 2(1) (Protocol 4) that hadoccurred was necessary in the absence of ‘concrete evidence to show that there was areal risk that [Labita] would offend’.185 Labita therefore indicates that a line must bedrawn. After a certain period to justify a control order as necessary (under Art 2(3)(Protocol 4)) there must be at least firm evidence of a real risk of a (serious(?)terrorist) offence being committed by the controlee. The principle of proportionalitywould dictate that the more onerous the restrictions on a controlee are, the sooner theneed would be to justify the order on a higher standard of proof than mere reasonablesuspicion. In this connection it should be appreciated that control orders with longcurfew periods and the types of restrictions discussed above, but which otherwise falljust short of effecting a deprivation of liberty, would amount to the most seriousinterference with the right to freedom of movement that it is possible to have.

To some extent, therefore, the right to freedom of movement compensates for thehigh threshold set by Art 5 and the criminal aspect of Art 6 of the ECHR. It requiresthat the restrictions imposed on controlees be justified at the outset and remainjustified thereafter. It demands proportionality between the measures imposed and thelegitimate aim being pursued, ie it requires a proper balance to be struck between theactual risk the controlee presents and the severity of the restrictions imposed. Giventhe extremely broad basis permitted by the PTA for the imposition of a control order,and how easily it can be renewed thereafter, it is submitted that the protection of theright to freedom of movement would be a very important safeguard for controlees.

The second point to make is connected to the first since it concerns the broadquestion of when, in principle, control orders might no longer be regarded as neces-sary. Lord Carlile has proposed186 a statutory presumption against an order lasting over2 years, unless exceptional circumstances existed. It was ‘only in rare cases thatcontrol orders [could be] justified for more than [this]’, for by then ‘the immediateutility of even a dedicated terrorist will seriously have been disrupted’. However, thegovernment’s rejection of Lord Carlile’s proposal raises concerns not only from aproportionality perspective but also in terms of why control orders are imposed at all.It cautioned against ‘assuming individuals no longer pose a threat after a definedperiod of time’, stressing its responsibility to protect the public from ‘a risk ofterrorism’, and insisting that it would maintain control orders if they were required.187

An individual, it was suggested, might ‘simply disengage from involvement interrorism-related activity on the basis that they know they could re-engage’188 whentheir order expired. Such an approach – once a threat, always a threat – could, on thegovernment’s terms, justify the imposition of a control order indefinitely. Moreover, itfails to balance the severity of the human rights interference suffered by a controlee

184. Labita, above n 27, para 197.185. Ibid, para 196. The Strasbourg Court has also held that it is prepared to find a violation ofthe right to freedom of movement on the basis that the restrictions imposed have simply beenin place too long. See Rosengren v Romania (Application No 70786/01) judgment of 24 April2008, para 38; Ivanov v Ukraine (Application No 15007/02) judgment of 7 December 2006;Fedorov and Fedorova v Russia (2006) 43 EHRR 42. In each case the duration of the orders wasvery long (6–11 years), but the restrictions (mainly on travel) were far less intrusive than certaincontrol orders.186. Lord Carlile Third Report, above n 2, paras 50–51. See also Walker, above n 2, at 1458.187. The Government’s Response to the Third Report of the Independent Reviewer pursuant tosection 14(3) of the Prevention of Terrorism Act 2005 Cm 7367, p 4.188. Ibid (emphasis added).



with the actual need for the same in terms of the current threat posed by him. Needlessto say, if a control order was extinguished after 2 years or sooner this would notprevent the authorities from subjecting an individual to surveillance measures in orderto see if suspicions are well founded. The criminal process could then take its course.

CONCLUSIONS

Despite the legal challenges discussed in this paper the control order scheme remainsessentially intact. It remains to be seen then whether the government will resort tocontrol orders only rarely, or if, slowly but surely, the number of controlees willgrow.189 The government’s position is that190 it will prosecute where possible, that inthis regard it is introducing new terrorist offences,191 that it intends to accept therecommendations of the Chilcot report on intercept evidence,192 and that, for foreignnationals, it aims to deport where possible. Nonetheless, there remain ‘a small numberof suspected terrorists whom we can neither prosecute nor deport’. ‘Without somedisruption of their terrorism-related activity’, it is stated, ‘these individuals would befree to continue to facilitate or execute acts of terrorism’. That ‘is not a risk theGovernment is prepared to take’ and ‘[c]ontrol orders remain the best available meansfor managing the risk posed by these individuals’.

The courts have an important role to play in identifying a minimum floor of humanrights protection applicable for control orders. The primary responsibility, however,lies with Parliament. It is perfectly capable of refining the control order scheme so thatit goes beyond the minimum level of human rights protection afforded by Arts 5 and6 of the ECHR and here the JCHR has made powerful arguments for several amend-ments to the PTA.193 It is telling then that all the JCHR’s proposals were rejected in the2008 renewal debate, which was guillotined at 90 minutes in the House of Commons.

When the House of Lords considers (indeed, reconsiders) the Art 6(1) issues raisedin the Court of Appeal’s judgment in AF and Others194 it will have another opportunityto point out that control orders are odious measures that any democracy should bereluctant to accept. It is submitted that the core principle of the right to fair trial asidentified above and set out in Strasbourg law must be upheld: there must be disclo-sure of at least the gist of the case against a controlee. More generally, any assessmentof the human rights compatibility of control orders should appreciate the limitedprotection afforded by Arts 5 and (in the criminal law sphere) 6 of the ECHR. It shouldalso be appreciated that positive human rights protection in the UK is deficient in thatthe right to freedom of movement is not protected. The protection of this right would

189. Figures from the Security Service maintain that approximately 2000 individuals ‘pose athreat to our security’: Jacqui Smith (Home Secretary), Speech to International Conferenceon Radicalisation and Political Violence, 17 January 2008, available at http://security.homeoffice.gov.uk/.190. See Government Reply, above n 44.191. An important example is s 6 of the Terrorism Act 2006, which provides a new offence ofpreparation of terrorist acts. Obviously new offences cannot apply retroactively to currentcontrolees; see Art 7 of the ECHR.192. However, this suggests that allowing intercept evidence in court will not significantlyreduce the need for control orders; see Privy Council Review of Intercept Evidence Cm 7324,30 January 2008, para 58.193. See JCHR Third Report on Control Order Renewal, above n 10.194. See n 120 above.



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not necessarily lead to the abolition of control orders; indeed, as a last resort, they mayhave a legitimate place as part of the government’s anti-terrorism agenda. However,the right to freedom of movement would help to ensure that in individual cases controlorders remain in place on a legitimate and proportionate basis.



Documents

Anti-terrorism control orders: liberty and security still in the balance