Control Order Powers

Baroness May of Maidenhead Excerpts

Thursday 16th September 2010 Written Statements

[The Secretary of State for the Home Department (Mrs Theresa May)]

Section 14(1) of the Prevention of Terrorism Act 2005 (the 2005 Act) requires the Secretary of State to report to Parliament as soon as reasonably practicable after the end of every relevant three-month period on the exercise of the control order powers during that period.

The level of information provided will always be subject to slight variations based on operational advice.

The future of the control order regime

As set out in the previous statement laid on 21 June 2010, Official Report, column 6WS, the Government are reviewing control orders as part of a wider review of counter-terrorist and security powers and measures. This review is ongoing and we will report the outcome of the review to Parliament in the autumn.

The exercise of the control order powers in the last quarter

As explained in previous quarterly statements on control orders, control order obligations are tailored to the individual concerned and are based on the terrorism-related risk that individual poses. Each control order is kept under regular review to ensure that the obligations remain necessary and proportionate. The Home Office continues to hold control order review groups (CORGs) every quarter, with representation from law enforcement and intelligence agencies, to keep the obligations in every control order under regular and formal review and to facilitate a review of appropriate exit strategies. During this reporting period, two CORGs were held in relation to the orders currently in force. In addition, further meetings were held on an ad hoc basis as specific issues arose.

During the period 11 June 2010 to 10 September 2010, one non-derogating control order has been made, with the permission of the court, but has not been served. Two control orders have been renewed in accordance with section 2(6) of the 2005 Act in this reporting period. Three control orders have been revoked during this reporting period. One control order was revoked because it was not possible to meet the disclosure test set out in the June 2009 House of Lords judgment (AF & Others) on article 6 (right to a fair trial) of the European Convention on Human Rights (ECHR). Two control orders were revoked as they were no longer considered necessary.

In total, as of 10 September, there were nine control orders in force, all of which were in respect of British citizens. All of these control orders are non-derogating. Four individuals subject to a control order live in the Metropolitan Police Service area; the remaining individuals live in other police force areas.

During this reporting period, one individual pleaded guilty to six counts of breaching his control order and was sentenced to 15 months’ imprisonment.

During this reporting period, 56 modifications of control order obligations were made. Fourteen requests to modify control order obligations were refused.

Section 10(1) of the 2005 Act provides a right of appeal against a decision by the Secretary of State to renew a non-derogating control order or to modify an obligation imposed by a non-derogating control order without consent. One appeal has been lodged with the High Court during this reporting period under section 10(1) of the 2005 Act. A right of appeal is also provided by section 10(3) of the 2005 Act against decisions by the Secretary of State to refuse a request by a controlled person to revoke their order or to modify any obligation under their order. During this reporting period three appeals have been lodged with the High Court under section 10(3) of the 2005 Act.

One judgment has been handed down in relation to substantive judicial review proceedings under section 3(10) of the 2005 Act during this reporting period. In Secretary of State for the Home Department v. AY, [2010] EWHC 1860 (Admin) handed down on 26 July 2010, the court upheld the control order on the basis that there was and remained reasonable grounds for suspecting that AY was involved in terrorism-related activity, that it was and remained necessary for a control order to be imposed on him for purposes connected with protecting the public from a risk of terrorism and that each of the obligations in the control order was and remained necessary for purposes connected with preventing or restricting AY’s involvement in terrorism-related activity. The court also considered and rejected the argument that an unsuccessful prosecution for a terrorism-related offence precludes the Secretary of State from making a control order on essentially the same material as that relied upon by the prosecution at trial.

One judgment has been handed down in relation to a modification appeal under section 10(3) of the 2005 Act during this reporting period. In Secretary of State for the Home Department v. CA, [2010] EWHC 2278 (QB) handed down on 10 September 2010, the court found that the relocation of CA to a different town was not proportionate because of his particular family circumstances.

One judgment has been handed down by the Court of Appeal during this reporting period. In AN v. Secretary of State for the Home Department, Secretary of State for the Home Department v. AE and AF [2010] EWCA Civ 869, handed down on 28 July 2010, the Court of Appeal dismissed the Secretary of State’s appeal against the High Court’s judgment of 18 January 2010 in relation to AE and AF and upheld AN’s appeal against the High Court’s judgment of 31 July 2009. The issue was what the appropriate remedy should be in control order cases where the Secretary of State elects not to make sufficient disclosure to comply with article 6 of the ECHR. The Court of Appeal found that the appropriate remedy in these circumstances is for the control order to be quashed from the date it was made and not for it to be revoked with effect from a date after the control order was served on the individual as the Secretary of State had sought to argue.

Most full judgments are available at: http://www.bailii.org/