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 measureand our acceptance of
this premisedoes 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 orderas the suspect
would be less isolated and would have greater access to electronic
communication deviceson 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
andby removing individuals from radical environments and
highlighting the presence of the state authoritieseffectively
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 casesthis
is very significantbecause, 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 readilyit is theoretically possibleand
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.
71 Q 91 Back
72
Q 71 Back
73
Q 263 [James Brokenshire MP] Back
74
Q 60 Back
75
Q 108 Back
76
Q 199 Back
77
Q 26 Back
78
Q 166 Back
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
80
Q 199 Back
81
Q 141-143 Back
82
Q 26 Back
83
Q 144 Back
84
Q 155 Back
85
Q 232-237 Back
86
Q 232-237 Back
87
Privy Council Review of intercept as evidence - report to the
Prime Minister and the Home Secretary, 30 January 2008, Cm 7324. Back
88
Particular doubts were raised over whether any system in the UK
would be compliant with Article 6 ECHR (the right to a fair trial). Back
89
Q 22 Back
90
Q 105 and Q 122 Back
91
Q 57 Back
92
Q 236 Back
93
Q 105 Back
94
Q 22 Back
95
Sentence following conviction; breach of a court order; arrest
on suspicion of crime; educational supervision of a minor; infection,
disease of mental illness, unlawful entry or pending action to
deport or extradite. Back
96
See: "Draft Enhanced Terrorism Prevention and Investigation
Measures Bill", Human Rights Memorandum by the Home Office
to the Joint Committee on Human Rights, paragraph 22. Back
97
Q 113 and Q 30 Back
98
Q 30 Back
99
Q 114 Back
100
Q 145 Back
101
Q 148 Back
102
Secretary of State for the Home Department v AF and another,
[2009] UKHL 28, [2010] 2 AC 269. Back
103
Q 113 Back
104
Q 190-193 Back
105
Q 241 Back
106
Q 242 Back
107
Q 249 Back
108
Q 113 Back
109
Q 190 Back
110
Q 252, Q 254 Back
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