Control Powers (11 March - 10 June)

Baroness May of Maidenhead Excerpts

Thursday 16th June 2011 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

On 23 May 2011, the Terrorism Prevention and Investigation Measures Bill was introduced in the House of Commons. A copy of the Bill can be found on Parliament’s website. The home page for the Bill is:

http://services.parliament.uk//bills/2010-11/terrorismpreventionandinvestigationmeasures.html

The Bill makes provision for the abolition of control orders and their replacement with a new, less intrusive and more focused regime. The control order system will continue to operate until its replacement is in force.

The exercise of the control order powers in the last quarter

As explained in previous quarterly statements, 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 the reporting period, three CORGs were held in relation to the orders in force at the time. Other meetings were held on an ad hoc basis as specific issues arose.

During the period 11 March 2011 to 10 June 2011, one new non-derogating control order was made, with the permission of the court, and served. One non-derogating control order which was made, with the permission of the court, during a previous quarter was served during this quarter. A control order already in force at the beginning of this reporting period was revoked on the direction of the court and a new order made and served in its place. Two control orders have been renewed in accordance with section 2(6) of the 2005 Act in this reporting period.

In total, as of 10 June, there were 12 control orders in force, all of which were in respect of British citizens. All of these control orders were non-derogating. Three individuals subject to a control order were living in the metropolitan police district; the remaining individuals were living in other police force areas.

One set of criminal proceedings for breach of a control order was concluded during this reporting period following a CPS decision that prosecution was no longer in the public interest in the light of the revocation of the control order to which they were related.

During this reporting period, 60 modifications of control order obligations were made. Twenty-five 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. Three appeals have 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 a decision 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 two appeals were lodged with the High Court under section 10(3) of the 2005 Act.

On 5 April 2011 a judgment was handed down by the Court of Appeal in BM v Secretary of State for the Home Department [2011] EWCA CIV 366, in relation to the appeal brought by BM against the decision of the High Court to uphold his control order. The Court of Appeal allowed BM’s appeal. It found that the High Court did not consider the correct legal test at the initial review of the control order because it only considered whether the control order was necessary at the date of the hearing and not at the date it was made. It further found that, on the basis of the evidence before it, the control order was flawed from the outset. The Court of Appeal made clear that it only considered the open evidence against BM in reaching this decision. The judgment recognised that the Secretary of State argued that the control order was justified on the totality of the evidence, including closed evidence that was not before them, but found that they should consider only the open evidence that was before them so as to avoid delaying the outcome of this case. The Court of Appeal directed that the control order should be revoked 48 hours after hand-down with retrospective effect from the date on which it was made.

On 20 May 2011 a judgment was handed down by the High Court in CD v Secretary of State for the Home Department [2011]EWHC 1273(admin) in relation to the appeal brought by CD under section 10(3) of the 2005 Act against the decision to refuse to remove an obligation that would require him to relocate away from his previous area of residence. The judge dismissed the appeal, concluding that the relocation obligation was a necessary and proportionate measure to protect the public from the risk of what is an immediate and real risk of a terrorist related attack. The judge also found that the Secretary of State should contribute to the travel costs of CD’s family. He made clear that the finding in this case does not mean that a contribution to travel costs should be made in every case of relocation.

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