Draft Enhanced Terrorism Prevention and Investigation Measures Bill - Joint Committee on the Draft Enhanced Terrorism Prevention and Investigation Measures Bill

Draft Enhanced Terrorism Prevention and Investigation Measures Bill
- Joint Committee on the Draft Enhanced Terrorism Prevention and Investigation Measures Bill Contents

5 Are ETPIMs the best solution?

68. There was agreement among most of our witnesses that there was a need for the Government to introduce some sort of control mechanism to manage the risk posed by those it was unable to deport or safely prosecute. Lord Carlile stated that "having ETPIMs in reserve ... is clearly necessary"[71] and DAC Osborne told us that ETPIMs could have great benefits from a police and public safety perspective: "the advantage of TPIMs and controlling measures means that people are taken away from the radicalising environment that was causing the major problem".[72] However, the need for some form of measure—and our acceptance of this premise—does not obscure the particular faults or areas of uncertainty in the legislation put forward by the Government for scrutiny. We address these matters in this Chapter.

Prosecution and ETPIMs

69. Part of the rationale behind preventative measures such as control orders or TPIMs is that the Government is unable to prosecute an individual because it is unwilling to make the evidence needed for a successful prosecution public. ETPIMs could therefore be viewed, in part, as an interim measure, containing the threat posed before a successful prosecution can be brought. The Minister told us that prosecution is the Government's "absolute preference".[73] However, doubts were raised over whether the ETPIM would encourage prosecutions or whether, in reality, an ETPIM worked against the chance of prosecution and therefore against the Government's preference. Witnesses also raised a linked concern about the temporary nature of ETPIMs and the seeming lack of "endgame" apparent in the Government's strategy.

70. DAC Osborne, despite his approval of ETPIMs as a preventative measure and recognition of their possible role in de-radicalisation, acknowledged that the imposition of an ETPIM would rarely lead to a successful prosecution as they would restrict the possibility of committing any activity which could lead to a prosecution:

Control orders, TPIMs and enhanced TPIMs, and the way that they are policed, all affect the behaviour of the individuals that are subject to them. Once you have told the person that they are on a TPIM, they will know that they are being monitored, watched and surveilled. Compliance under TPIMs, as with control orders, has generally been very good.[74]

Similarly, Lord Carlile noted that the imposition of an ETPIM would reduce the likelihood of a successful prosecution at a later date:

It is absolutely beyond doubt that they inhibit investigation because the person is subject to controls, although they may occasionally assist investigation if somebody chooses by subterfuge to continue his or her relationship with former associates. The investigation bit of the TPIM seems to me to be pretty near an illusion.[75]

Sophie Farthing explicitly called ETPIMs "a stopper on gathering evidence for prosecution".[76]

71. As well as restricting activities that could be used as part of a successful prosecution, it was further noted by our witnesses that the "Investigation" element of the ETPIMs legislation was very much secondary to the "Prevention" element. David Anderson commented, "certainly, the "I" in "TPIM" suggests that that is partly how they are intended; they are not just to prevent but to investigate. I am afraid I am not terribly optimistic about that" and noted that this was a long-standing problem: no-one had been prosecuted for terrorist activity after the imposition of a control order.[77] Professor Helen Fenwick suggested that while theoretically there was a slightly greater chance of the prosecution of an individual under an ETPIM than under a control order—as the suspect would be less isolated and would have greater access to electronic communication devices—on the whole the investigative element of ETPIMs was lacking. She told us:

The link with prosecution could have been made stronger in the TPIMs and ETPIMs legislation. It has been made a little bit stronger. Section 10 of the TPIMs Act is a little bit stronger in terms of the duty placed on the Home Secretary to consult with chief constables about the possibility of prosecution. It is a bit stronger than section 8 of the Prevention of Terrorism Act 2005, but it is not all that strong. ... I would make that investigative element even stronger than it is at present. It is not stronger for ETPIMs than TPIMs, and I think it should be.[78]

72. Under the previous preventative measure regime, control orders, it could be argued that a reduced likelihood of a successful prosecution at a later date was a secondary concern. While the Government may have wished to prosecute, failure to do so would not endanger public safety; individuals on a control order could be placed under restrictions indefinitely and the risk posed by them could be managed accordingly. However, unlike control orders, ETPIMs and TPIMs are time-limited measures. There is therefore a much greater imperative for prosecution.

73. Under the TPIM/ETPIM regime the maximum period for which a terrorist suspect could have their actions restricted would be four years. In order to impose an ETPIM on an individual, the Home Secretary must be satisfied that the individual is involved in terrorism-related activity and that some or all of the activity is new.[79] It follows that once an individual has been placed under an ETPIM, at the end of a maximum period of two years no further restrictive measures may be applied against them without evidence of any "new" activity. The likelihood of an individual committing any new terrorism-related activity while under an ETPIM is substantially reduced by the restrictions placed upon them. This raises a threat to public safety. The behaviour of an individual subject to an ETPIM notice will be constrained both by the terms of that notice and the awareness that he will be under increased police surveillance. It is unlikely that such an individual will have the motive or opportunity to commit any new incriminating activity. As such, it is possible that under this legislation, at the end of a maximum two-year period, an allegedly dangerous, radicalised individual will be released without direct restrictions on their behaviour.

74. Some of our witnesses doubted that this was a problem. It was argued that the presence of a time-limit would focus minds and create an imperative towards prosecution that was lacking when, as under control orders, suspects could be indefinitely "warehoused". Sophie Farthing, while doubting that ETPIMs would help in practice, averred that this was the intention behind the Bill.[80] Professor Glees was even more confident of the effectiveness of these measures. He suggested that ETPIMs could operate as a short, sharp shock and—by removing individuals from radical environments and highlighting the presence of the state authorities—effectively de-radicalise the recipients. While he conceded that this would not be the case in every circumstance, and different solutions would be required for some individuals, others subject to an ETPIM may well voluntarily de-radicalise as they mature and are taken away from that environment, in the manner of student radicals in the past.[81]

75. Other witnesses doubted whether, even if the time-limit focused prosecution efforts, this would make a substantial difference to the likelihood of a successful prosecution of an individual who has been subject to an ETPIM. David Anderson noted that past experience suggested that it is unlikely that prosecutions would "automatically" follow at the end of the two-year period:

If people know they are under the sort of extreme control that both a control order and a TPIM represent, it would perhaps be surprising if they were to allow evidence to be picked up that would allow them to be prosecuted. That seems to be what the last five or six years bears out.[82]

Professor Fenwick agreed and suggested that the combined effect of the restriction on activity and the two-year time period of an ETPIM sharply reduced their investigative value. Instead, she questioned why, if the intention behind time-limiting the measures was to focus efforts on prosecution, and not to encourage the development of more evidence, ETPIMs (or TPIMs) were needed at all. She argued that with the proliferation of offences it would be possible in the majority of cases to prosecute suspects for some offence immediately and that this might be a simpler way of "buying time" for the police and prosecution:

If the idea of the two-year limit is to create a greater imperative to prosecute them towards the end of the two years rather than just parking them indefinitely on a control order, then that begs the question why, therefore, that imperative could not arise in any event and they could be prosecuted. I do think it is a problem.[83]

She further suggested that the Government had yet to articulate a strategy for the management of individuals who were coming to the end of a standard TPIM period and had (possibly) committed no new offence.[84]

76. The Minister stressed that there was no blanket measure that the Government could implement to manage the risk posed by those individuals whose ETPIM had expired and have no new evidence of wrong-doing against their name. Instead, such decisions would need to be taken on a case-by-case basis. He highlighted that the Government possessed many options for managing the risk posed by individuals who have been controlled via an ETPIM, and speculated that in some cases individuals would be de-radicalised by their experience and therefore pose less of a threat. In other cases, the threat could be managed by greater amounts of surveillance and, for foreign nationals, Deportation with Assurances could be used more widely. Finally, he suggested that technological developments allowing the use of intercept evidence may also make prosecution a more common option for the Government to manage the threat of individuals at the end of an ETPIM period.[85]

77. Nevertheless the Minister was cautious not to place too much weight on these options. He insisted that ETPIMs were ultimately a preventative rather than investigative measure and their use carried an acceptance that the likelihood of a subsequent prosecution, successful or otherwise, would fall. Further, he confirmed the Government's position that "there will always be a need for some form of preventative measure like TPIMs".[86]

78. Time-limiting ETPIMs and as a result focusing the prosecution efforts of the security services, police and the CPS by giving them a deadline to work against, undoubtedly brings both costs and benefits. It is correct to note that restricting the movement and potential associations of a terrorist suspect for a period of up to two years could in many cases lead to a diminution of the individual's value to terrorist organisations and assist in a process of "natural" de-radicalisation. As an interim measure to facilitate and encourage this process the ETPIM has merit. We further welcome the Government's decision to time-limit these measures in so far as this creates an imperative towards prosecution that was lacking under the previous control order regime.

79. While a proportion of the threat posed by dangerous, radicalised individuals could be contained for a two-year period under an ETPIM, it is equally true to say a residual element of risk will remain. We believe that if there were to be some individuals placed under an ETPIM, there will almost certainly be some who will remain radicalised and potentially dangerous but against whom no new evidence of wrong-doing can be found. Under the legislation as drafted such individuals will effectively be allowed to go free at the end of their two year ETPIM period without restriction on their movement or activity. The Government has not yet explained how the threat posed by such individuals will be managed. We recommend that they do so in response to this Report.

Intercept evidence

80. Enhanced and standard TPIMs, along with the earlier control orders, are a response to the difficulties posed by terror suspects who the Government can neither deport nor safely prosecute. Prosecution in these cases is complicated as the evidence upon which the Government relies to make its case is often unable to be released because of security concerns or is the product of intercepted communications and is therefore inadmissible in court.

81. As a general rule, UK law prohibits the evidential use of material gathered via the interception of electronic communications (intercept evidence). This prohibition is derived from section 17 of the Regulation of Investigatory Powers Act (RIPA 2000) which prevents use of intercept as evidence in UK courts. The inability of the prosecution to admit intercept material as evidence is partly a result of the UK's status as a legal outlier. It is both the only common law country which does not allow the use of intercept evidence in a court of law and one of very few countries bound by the European Convention on Human Rights which possesses an adversarial legal system.

82. Despite these legal objections it is argued that the admission of intercept material as evidence would reduce or even remove the need for controlling measures such as ETPIMs by increasing the evidence base available and therefore the chance of successful prosecution of terrorist suspects. Both the current and previous Governments have worked to introduce intercept evidence into criminal proceedings. The previous Government commissioned numerous reviews into the subject, most notably the Privy Council Review of intercept as evidence 2008 (also known as the Chilcot Review).[87] The Chilcot Review concluded that in principle a system which allowed the use of intercept could and should be developed while noting the difficulties such a system would cause. Intercept would require the preservation, monitoring and transcription of "an enormous amount of intercept product which might be relevant to future criminal cases" and would create "a risk of disclosure of intercept capabilities and techniques, including those of the intelligence agencies." Further, the Review noted the difficulty that any such system would have to be compliant with the European Convention on Human Rights.[88] The present Government has built on this work and has worked to develop a system that would meet the operational difficulties set out in the Chilcot Review while minimising, or avoiding, the problems highlighted.

83. That intercept evidence would be useful as a tool to increase the number of prosecutions of terror suspects cannot be doubted. David Anderson told us that "I think all right-minded people would like to see intercept evidence admissible in our courts, if that could possibly be achieved"[89] and Lord Carlile speculated that "a limited system for intercept evidence ... would be effective in some terrorism cases" largely because, "terrorists are remarkably like other criminals and would be likely to fall into the same traps as other criminals".[90] DAC Osborne confirmed to us that from a policing perspective "intercept evidence could be very useful in prosecution cases" as part of wide package of measures.[91]

84. However, despite the enthusiasm shown by our witnesses for the development of a system to allow the admission of intercept material, there was a clear sense that intercept is not, and should not be seen as, a "silver bullet", and that making it admissible as evidence in court would not remove the need for controlling measures such as ETPIMs. The Minister stressed to us that regardless of developments around the admission of intercept "we judge that there will always be a need for some form of preventative measure like TPIMs."[92] This belief was substantiated by the evidence we received from two Independent Reviewers of Terrorism Legislation who had seen sensitive information unavailable to us in our work. They noted that only in a very small number of cases would the admission of intercept material as evidence make the difference in a decision whether or not to prosecute. While any such figures are imprecise and present only a snapshot of the potential effect of the admission of intercept material, they indicate a clear trend. Lord Carlile told us that of 50 control orders cases he had looked at, only in one would intercept evidence "have led to a prosecution rather than a control order."[93] David Anderson noted a similar trend. He told us of confidential legal advice submitted by a former Old Bailey Counsel who had analysed nine cases in which intercept evidence played a part:

They said, "Can you advise on whether, if the section [17 of RIPA] was repealed and intercept evidence was admissible, the result would have been positive in terms of convictions?" [His response] was that in none of the nine cases would it have made a difference, in four or five of them, I think four, because the intercept evidence could not have been put forward in a way that would have persuaded the jury, and in the other cases—this is very significant—because, even if it had been admissible, there is no way that the prosecution would have allowed it into open court.[94]

85. It is not our intention to pass comment on the admissibility of intercept material as evidence. To make such a recommendation would be beyond the scope of this Committee and our work. We are very aware of the difficulties this problem raises and the ongoing efforts of the Government to tackle these. Nevertheless, we echo the comments of our witnesses that intercept evidence is not a "silver bullet". The admissibility of intercept evidence would not, in itself, solve the Government's problem of how to manage the threat posed by terrorist suspects it was unable to deport or safely prosecute. Regardless of its inherent merits, intercept evidence would rarely be the decisive factor in a decision to prosecute instead of imposing a measure like an ETPIM. As a result, while we are clear that intercept evidence could be useful as a tool to increase the number of prosecutions of terror suspects, we accept that the admissibility of intercept material as evidence could not itself act as an alternative to ETPIMs.

Parliamentary scrutiny of the ETPIMs Bill

86. The most frequent complaint made against control orders, the predecessor to TPIMs, was that they infringed human rights, particularly Articles 5 (the right to liberty) and 6 (the right to a fair hearing) of the European Convention on Human Rights (ECHR). The same concerns have been expressed about the operation of ETPIMs.

ARTICLE 5 ECHR

87. Article 5 guarantees "the right to liberty and security of person" at all times except in six specified situations.[95] Governments have the power to derogate from Article 5 in times of national emergency, but this option has not been taken in relation to the Terrorism Prevention and Investigation Measures Act 2011 or this draft Bill. It follows that the Government must ensure that ETPIMs are compliant with the UK's obligations under Article 5 of the ECHR.

88. While they are confident that both TPIMs and Enhanced TPIMs are ECHR compliant, the Government has acknowledged that the compatibly of ETPIMs with Article 5 of the ECHR is a legal "grey area" which could be open to challenge.[96] We asked our witnesses whether they agreed with the Government's assessment that the Bill complied with Article 5 of the ECHR. Both Lord Carlile and David Anderson agreed that the draft Bill complied with Article 5.[97] David Anderson noted that the many challenges against control orders on Article 5 grounds had given the Government clear guidance on the acceptable limits which can be placed on an individual's liberty,[98] while Lord Carlile argued that "the limitations placed on TPIMs and former controlee individuals are in many cases less than the highest bail conditions imposed by magistrates courts every day up and down the country."[99]

89. However, despite the general confidence of our witnesses, Professor Fenwick suggested that the Government's position, while broadly accurate, carried a degree of risk and that there was a chance that a particularly stringent ETPIM could be found to be non-compliant with Article 5. She further questioned why the Government was willing to allow this "grey area" and the consequent risk of litigation at all. She argued that, while it would be unpalatable, it may be better to derogate from Article 5 and by so doing allow the Government to impose extremely stringent requirements against the most dangerous individuals instead of being held back by the need to comply with Article 5.

If, literally, there isn't a prospect of prosecution of people who, on Security Service advice, are dangerous, why not consider seeking a derogation from Article 5 and look for a more severe form of intervention?[100]

Professor Fenwick further argued that such a move would be more intellectually honest, would better highlight the severe danger posed by one or two individuals and would be a more open and honest assessment of the Government's intentions:

A derogation is not a measure that one would enter into lightly, and Parliament would have to accept the derogation, but at least it is openly saying it to Parliament. Parliament would have to say, and so would the judges, that, yes, there is a state of emergency at the moment, meaning that we have to suspend our acceptance of Article 5.[101]

ARTICLE 6 ECHR

90. Article 6 of the European Convention of Human Rights guarantees an individual a right to a fair hearing. As with Article 5, control orders faced many legal challenges as to their compliance with Article 6. The issues raised in these cases apply equally to the operation of TPIMs and ETPIMs. Control orders, TPIMs and ETPIMs rely on the use of a closed material procedure. As a result, the suspect or "controlee" is unaware of the case against them and have been unable to give instruction to their Government-appointed and security-vetted Special Advocate.

91. These arrangements were challenged repeatedly under the control order regime and the rulings made will govern the legality of TPIMs and ETPIMs. In the AF (No.3) case[102] it was held that a controlee must be given "sufficient information about the allegations against him to give effective instructions in relation to those allegations" and as a result the controlee must be given the "gist of the case" against them for Article 6 compliance.

92. This Bill does not commit the Home Secretary to providing at least the gist of the case to all individuals under a TPIM or ETPIM. The Home Secretary will not provide a "gist" as of right but will consider so doing in response to a request from the court. Following any such request from the court, the Government will have discretion whether they provide the "gist" or drop the action against the individual (as was the case under control orders; two individuals were discharged from control orders after the Government refused on national security grounds to disclose the information required).

93. Providing at least a gist of the case against an individual is the key question in whether a legal process is Article 6 compliant. Lord Carlile noted that "a fair hearing involves at the least a satisfactory measure of gisting so that the individual concerned understands sufficiently the nature of the case being brought against him".[103] Sophie Farthing called "gisting" the "least worst option", which did not make the system any less "unfair" and still went against "common law principles that have been part of our justice system for hundreds of years and are being overridden by this system. It is the right to know the full case against you and the equality of arms."[104]

94. The Minister, on the other hand, assured us that the Government's confidence in the compatibly of this legislation with the European Convention on Human Rights was drawn from the existing case law:

It is not simply [the Government] asserting it. We are asserting it on the basis of the case law that has been established through control orders but is directly informative in consideration of the TPIMs and ETPIMs legislation.[105]

He told us that since both control orders and TPIMs had already withstood legal challenge, he was confident that ETPIMs, with their more rigorous legal and judicial safeguards, would meet with similar judicial approval.[106]

95. However, despite asserting his confidence that the legal process found in the current ETPIMs legislation was Article 6 compliant, the Minister refused to confirm that the Government would follow the recommendation made by the Law Lords in the AF (No.3) case and provide all controlees with at least the gist of the case against them. The Minister stated that the Government's view was that as AF (No. 3) referred to "a stringent control order" it did not place the Government under an obligation to provide a "gist" in all cases. Instead, he was confident that the current policy of providing gists only at the Home Secretary's discretion or when ordered to by the courts would be Article 6 compliant and that no change in this policy was needed.[107]

96. We further considered the extent to which withholding from controlees information on the case against them undermined their capacity to give instruction to their Special Advocate. Such a system has been criticised by the Special Advocates themselves and by Lord Carlile, who told us:

The biggest improvement that we could make to the special advocate system would be to enable special advocates to take instructions more readily—it is theoretically possible—and to be encouraged to take instructions from the individuals whose interests they represent.[108]

Sophie Farthing agreed that increasing the degree to which suspects could give legal instruction would be an improvement on the current situation which she described in legal terms as "taking blind shots in the dark".[109]

97. We asked the Minister to reverse the Government's bias against "gisting" which prevents Special Advocates receiving instructions from their client. He refused to make such a commitment. He was concerned that even innocuous questions and banal, unmanaged, non-approved conversations between the Special Advocate and their client:

could reveal something of the nature of the closed case ... It is not to be obstructive. It is rather to recognise the very real challenges that we have on intelligence sources and how to facilitate communications in a way that does not contravene that. That is why, if the Special Advocate wishes to make that communication, there is a clear process of doing that and some of those issues can be assessed and examined in that context.[110]

98. Our colleagues elsewhere in Parliament have scrutinised the compatibility of these broad measures with the UK's human rights obligations. It is not our intention to duplicate their work. We acknowledge the inherent difficulty faced by the Government in ensuring that this legislation is compliant with human rights law. Any ETPIM will be a bespoke measure customised for each circumstance. Their legality in each case can only be proven via a legal challenge. However, the evidence we have received suggests that the Government is correct to proclaim these measures human rights compliant and we see no reason to contradict these statements. Regardless of the accuracy of the Government's position we recommend that the Government change its position on "gisting" and commit to a de facto position of providing at least the gist of every case against an individual. We do not understand why this is not the current policy and suggest that there are strong moral reasons to make such a change. Regardless of interpretations of the law, it is wrong that an individual could have no knowledge of the case against them and will be unable to instruct his Special Advocate accordingly. We note that if the underlying presumption was changed so that the gists were put forward, the Government would remain able to apply to the court to prevent publication if so doing would endanger national security, and we therefore urge the Government to reverse its current bias against gisting and work with the Special Advocates to devise a method by which this can be done.

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79 Clause 2(6) of the Bill. Similar restrictions apply when moving a suspect from a "standard" to "Enhanced" TPIM, i.e. some "new" evidence that would justify the increased measures. Back

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