Robin Simcox on Control Orders

Whether the criminal justice system can sufficiently safeguard public safety is at the heart of the debate over the Western response to international terrorism. The debate is currently playing itself out in the UK over control orders, following a report into their use by the government’s independent reviewer of terrorism legislation last week. Control orders were introduced in 2005 to deal with terrorism suspects that either could not be deported because it would contravene anti-torture articles in the European Convention on Human Rights, or could not be tried in court because the evidence against them came from sensitive intelligence sources. A variety of restrictions were instead placed on the suspects, including an electronic tag, a curfew, a ban on overseas travel and a ban on meeting certain individuals. 52 control orders have been issued overall, and the independent reviewer’s report concluded that they stopped suspected terrorists ‘from travelling overseas, maintaining contact with senior Al-Qaida personnel, providing funds, facilitating the travel and training of others and engaging in terrorist-related activity’. However, control orders have become a bête noir – and not just for human rights groups. While in opposition, both the Conservative and Liberal Democrat parties were also vociferous critics. When these parties were forced to form a coalition government in May 2010, the reality of power partly tempered this enthusiasm – leading to a significant cabinet split. After months of political wrangling, control orders were phased out at the end of last year and replaced by Terrorism Prevention and Investigative Measures (TPIMs). These are virtually identical to control orders, yet certain powers – such as the ability to relocate a terrorist suspect to another part of the UK – have been scrapped. The crossover has been largely seamless. For example, last week the terror suspect ‘BM’ had his TPIM upheld as the government still believes that he aspires to fight abroad. Two of ‘BM’s brothers have already fled the UK to fight in Pakistan (one is now thought to be dead), and another is currently in jail for his role in the fertiliser bomb plot of 2004. Throughout this debate, there has been curiously little interest in the UK as to the actual usefulness of the legislation. Instead, the dividing lines were drawn around those who believed that the UK justice system was sufficient to contain the terrorist threat and those that believe some security threats necessitated an extra-judicial response. What was almost never mentioned was that many comparable nations have also shown themself willing to constrain those suspected of plotting terrorism but not charged with any offence. Local mayors in the Netherlands can issue ‘disturbance orders’ that allows police to make house calls and follow a suspect. In France, magistrates can charge a suspect with suspected terrorism and then hold them for up to four years while evidence is being gathered. (By contrast, the UK has now reduced its detention without trial limit from 28 days to 14, following fears that anti-terrorism legislation was growing too repressive). Australia has a control order system similar to Britain’s. Canadian courts can impose ‘peace bonds’ on suspected threats, the conditions of which are similar to British control orders, and use security certificates to detain foreign nationals suspected of terrorism offences. In the US, foreign nationals suspected of terrorism can be subject to administrative detention under the PATRIOT Act. Western democracies have assessed the dangers international terrorism poses and concluded that relying solely on the law to combat the threat is insufficient. The following individual typifies why such assessments have been made. Control order detainee AY was acquitted in the UK as part of al-Qaeda’s transatlantic liquid bomb plot of 2006. According to a senior security source, he was actually the plot’s key co-ordinator and al-Qaeda’s most important man in the UK. He was also a close friend of Rashid Rauf, the now deceased external operations manager for al-Qaeda. AY’s importance meant that the cell adopted tactics under questioning to ensure AY was kept out of jail. Furthermore, problems emerged during the trial about how the evidence was acquired, and the jury were not informed about key meetings that AY had with a suspected al-Qaeda operative in South Africa and London in the spring and summer of 2006. AY appears to be a committed extremist with al-Qaeda connections at the highest levels. He does not possess merely a passing interest in terrorism, but is actively immersed in it. However, AY is innocent in the eyes of the law, and a variety of human rights groups, academics and politicians have argued that the likes of AY should be given his freedom without the restrictions of a control order. In Europe, similar logic is often applied to Guantanamo Bay detainees – if these men are guilty, why not try them? This logic has contributed to a vociferously anti-Guantanamo European sentiment, and meant that the marked improvements in detention standards and policies mentioned on this site earlier this week are essentially ignored. Therefore, a significant challenge remains in arguing the case that good intelligence often does not translate into usable evidence in a criminal court. There are very serious security threats across the world that will never be tried in a civilian court. This reality should help explain both why control orders are still needed, and why the criminal justice system alone will remain insufficient to deal with international terrorism.