Comment: Control orders are an affront to justice

Daniel Hamilton and Alex Deane of Big Brother Watch
Daniel Hamilton and Alex Deane of Big Brother Watch

Control orders give the government even more power to restrict individuals' freedom than that exercised by the Burmese military to imprison opposition politician Aung San Suu Kyi.

By Daniel Hamilton and Alex Deane

Control orders are nothing new. They were first introduced in the United Kingdom six years ago in the Prevention of Terrorism Act under the auspices of "protecting members of the public from a risk of terrorism".

Control orders give the home secretary the power to impose more stringent conditions on the movements and daily lives of individuals than those the Burmese military have placed on Aung San Suu Kyi. Those subjected to control orders can not only be placed under effective house arrest but banned from associating with family members, owning mobile phones or attending their place of work - all without charge, without effective recourse to appeal and without knowledge of their accuser.


Prior to the general election, Chris Huhne, who spoke for the Liberal Democrats on home affairs issues, described the orders as a "violation of fundamental rights" and "one of the worst examples of the [Labour] government's determination to use any excuse to sacrifice hard-won and traditional safeguards for our freedoms". His support for their abolition was beyond question.

While not as forceful as their Liberal Democrat counterparts, the Conservatives also voiced scepticism about the policy's continuation. Responding in September 2009 to news that the courts had removed restrictions placed on one terror suspect and ordered for a review of the policy’s future, Grayling stated that a review ought to have already taken place before the measure was "unravelled in the courts".

Despite their previously trenchant positions on control orders, both of the Coalition parties now endorse their continuation – albeit in a repackaged and rebranded form.

Control orders have been replaced with "Terrorism Prevention and Investigation Measures" (TPims) which, while differing little from their predecessor, do contain elements which represent a step in the right direction with regards to civil liberties.

While under the previous regime the home secretary had only to have "reasonable grounds to suspect" a person may be involved in terrorism. Now in order to impose a TPim they will need to have "reasonable grounds to believe" they actually are involved. In addition, while TPims will not seek to place controls on whom an individual may or may not associate with or block them from owning a mobile phone, the home secretary will still retain the power to arbitrarily impose "overnight residence requirements" on the suspect – otherwise known as curfews.

TPims will expire after two years, while control orders had no statutory time limitation on their use. Unlike some civil liberties campaigners who are given to seeing a statist conspiracy in each piece of anti-terrorist legislation governments bring forward, we believe the creators of control orders were well intentioned. But we also believe they were wrong.

Despite the incremental improvements achieved through the adoption of the TPims system, it remains a standing affront to the rule of law that, without charge, anyone's liberty is curtailed or their freedom of movement limited to the point at which they are, essentially, under indeterminate house arrest.

If those who support control orders are right in their allegations, then those about whom they speak should be tried, based on evidence. Absent of such evidence and trials none of these people, against whom nothing to the criminal standard has been (or presumably, can be) proven, should be on these orders. Either the state can prove something against you, or it can't. There is no in between.

Each time a case actually goes to court, the government loses and another such order falls.

Control orders should be abandoned immediately, rather than defeated on an ad hoc basis as the government loses case after case. It is unjust enough to limit the liberty of a person in this way - but to continue to do so, knowing that the case will be decided against the government when it wends its way to court, but keeping them so 'controlled' until then, is morally bankrupt. It entails further months of unjustifiable action in each case, simply on the basis of which one gets to see the inside of a courtroom first. How can that be intellectually justified even for a moment?

There is a clear alternative to control orders which would allow for the effective surveillance of those under suspicion of terrorist-related activities; namely the lifting the ban on the use of intercept evidence in open court. At present, Government Communications Headquarters (GCHQ) demand that such evidence can only be used solely for intelligence purposes.

While the term 'intercept evidence' conjures up images of sleuth-like detectives slipping into the lairs of criminal masterminds under the cloak of darkness in order to install bugs, its true scope is more prosaic, allowing for wire-taps, phone calls, emails, faxes and letters to be admissible in court.

Our country is unique in its refusal to allow intercept evidence to be used for terrorist prosecutions. The former Metropolitan Police counter-terrorism chief, Andy Hayman, has stated that it's "foolish that everywhere else in the world is using it to good effect", while the UK insists on maintaining such an arcane position.

GCHQ's opposition to lifting the ban on intercept evidence centres on fears that information gathered by the police for terrorist prosecutions may run the risk of compromising its own covert surveillance work. It argues, for example, that if records of phone calls between a terrorist suspect and a security services informant were played in open court, the identity of the informant could be unwittingly revealed.

Such a position, however, simply doesn't stand up to scrutiny. While GCHQ is right to demand that the identities of informants are protected, British law already has adequate legal protections in place in this regard. Witness protection laws demand that 'requisite protections' are afforded in appropriate cases, such as the anonymisation of phone transcripts and the ability to give evidence under pseudonyms or from behind screens.

As long as the ban on the admissibility of intercept evidence remains in place, so do the many strange anomalies connected to it. While British courts cannot hear domestic intercept evidence, they frequently secure convictions based on overseas intercepts. Similarly, British intercepts can be used in prosecutions taking place overseas. While a conversation recorded on a hidden bug is admissible in court, a recorded phone call or intercepted email is not.

It is profoundly unlikely, given its long-demonstrated dogmatism on the issue, that GCHQ will alter its position on intercept evidence. The home secretary has a clear choice. If she wishes to be seen as a defender of personal freedom as opposed to its invader, she must act to abolish control orders – once and for all.

Lifting the ban wouldn't only make us safer, it'd make us freer.

Daniel Hamilton and Alex Deane are the current and former directors at Big Brother Watch, an organisation aimed at fighting intrusions on privacy and protecting liberties.

The opinions in politics.co.uk's Comment and Analysis section are those of the author and are no reflection of the views of the website or its owners.

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