2 The operation of the TPIMs Act |
The priority of investigation
25. During the passage of the TPIMs Act, the Government
stated that the shift from control orders to TPIMs was to be marked
by a renewed emphasis on investigation and prosecution. The Government
expressed its hope that the "increased focus on investigation
in the TPIMs Bill, and the provision of additional resources to
the police and Security Service, will lead to more evidence gathering
about suspected terrorists and therefore more prosecutions."
26. The Home Secretary told the House of Commons
on 8 January 2013 that
"one of the purposes of the extra resources
that we provided for the Security Service and the police following
the introduction of TPIMs was to improve their ability to identify
opportunities for prosecution."
27. The Independent Reviewer's Report on TPIMs, however,
was unequivocal in its finding that TPIMs have not been effective
as an investigation measure: so far, TPIMs have been effective
in preventing terrorism-related activity but not in enabling such
activity to be detected.
He found this to be no surprise, given the subjects' awareness
that they were under scrutiny and their knowledge that the constraints
will only last for two years maximum.
28. The Government, however, has continued to maintain
that, in the words of the Home Secretary, one of the purposes
of TPIMs was to ensure that people were better able to find evidence
that would lead to prosecutions.
29. Lord Taylor of Holbeach, for example, told the
House of Lords during a debate on the Government's draft Enhanced
TPIMs Bill that "TPIMs [...] provide a better balance than
control orders between controlling people who are engaged in terrorism-related
activity and ensuring that if they re-engage in that activity
we can collect evidence that can lead to their conviction."
James Brokenshire similarly told the House of Commons on 10 June
that "the focus certainly remains on investigating TPIMs
30. We asked the Minister for the Government's best
estimate of the number of terrorism prosecutions that have taken
place as result of the extra funding.
He said that it is difficult to differentiate between prosecutions
that would have taken place with or without the additional funding:
In all honesty, I would find it very difficult to
segregate out and to say that, as a consequence of the investment,
we have seen this many more prosecutions.
31. Pressed on whether he could give us any information
about whether there has actually been an increase in the number
of terrorism prosecutions year on year, he did not claim that
there had been, but referred us to the published statistics on
arrests, charges and prosecutions for terrorist-related offences.
The latest statistics (up to 12 September 2013) show that the
number of people charged, prosecuted and convicted of terrorism-related
offences did increase between 2010/11 and 2011/12, before falling
back again in 2012/13, although to a level still higher than in
32. We also asked the Minister to give us some examples
of the investigative steps that have been taken in relation to
TPIMs subjects with a view to their being prosecuted.
He referred to the quarterly TPIM Review Group meetings, at which
the evidence or information available is assessed in terms of
the potential for a prosecution. However, the Minister confirmed
in his evidence to us that "there has been no prosecution
to date of a TPIMs subject for a terrorist-related [...] charge."
33. We also asked the Independent Reviewer about
what evidence he had seen of the proactive pursuit of possible
criminal prosecution of TPIM subjects for terrorism offence, such
as attempts to gather evidence which could be used in such a prosecution.
He said that each TPIM subject has attached to them a senior investigative
officer from the police whose job it is to look for such evidence.
He had also observed in the Crown Prosecution Service considerable
willingness to take the prosecution route if possible, and he
gave an example of a case in which, in the course of preparing
for a TPIM application in relation to a particular individual,
a CPS lawyer advised that there was in fact sufficient evidence
for a prosecution, as a result of which the TPIM was not proceeded
34. The Independent Reviewer thought that prosecutors
involved in the process do advise with a view to prosecution,
and are engaged in a dialogue with both the police and the security
service. A representative of the CPS would also usually, although
not always, be present at TPIM Review Groups, but, in the view
of the Independent Reviewer, "it would not be fair to say
that there is usually very much conversation at TRGs about the
possibility of prosecution." On the whole, the picture looked
much the same as it had under control orders: people are looking
for evidence on the basis of which to prosecute, but they are
not finding very much, which, in the Independent Reviewer's view,
is "completely unsurprising" once a suspect is placed
on a TPIM.
35. Our inquiry has failed to find any evidence that
TPIMs have led in practice to any more criminal prosecutions of
terrorism suspects. This confirms the concerns we expressed in
our scrutiny Reports on the Bill that the replacement for control
orders were not "investigative" in any meaningful sense.
In our view it is time to recognise that the epithet "TPIMs"
is a misnomer, because they are not investigative in nature.
TPIMs should be referred to as Terrorism Prevention Orders, or
something similar, to reflect the reality that their sole purpose
is preventive, not investigative.
The lessons to be learnt from
the absconding of two TPIMs subjects
36. To date, two TPIMs subjects have absconded: Ibrahim
Magag on 26 December 2012 and Mohammed Ahmed Mohamed on 1 November
2013. Neither has yet been traced.
37. The absconding of two TPIMs subjects has inevitably
raised questions about the effectiveness of TPIMs as a counter-terrorism
tool, as well as about the operational competence of their enforcement.
We have not sought to enquire into the latter, which is something
the Home Affairs Committee has been looking into,
but we have considered what lessons should be learnt from these
episodes for the future of the TPIMs regime and in particular
whether the absconding of two individuals either demonstrates
the futility of TPIMs in principle, or the need for the restrictions
to be tighter. We consider below the specific question of whether
the absconding incidents show the need for the reintroduction
of the power forcibly to relocate TPIMs subjects away from where
38. In his Report on TPIMs (published after the first
but before the second TPIM subject had absconded), the Independent
Reviewer made two general comments about absconding.
First, the only way to eliminate the risk of absconding is to
lock terrorism suspects away in high security prisons, which would
clearly be unthinkable in relation to individuals who have not
been convicted of any criminal offence. Second, while publicity
and political debate are inevitable when a TPIM subject absconds,
it is important that the Government does not over-react to media
and political pressure, by a general ratcheting up of TPIMs.
39. We agree with the Independent Reviewer that the
very nature of TPIMs carries an inherent risk of the subject absconding,
and that the reaction to such incidents must not be allowed to
undermine the general principle that, in order to be proportionate,
restrictions on each TPIM subject must be individually tailored
to the risk that they are assessed to present.
40. Following the absconding of Ibrahim Magag on
26 December 2012, the Home Secretary told the House of Commons
that "when the dust has settled, we will look again to see
whether any lessons need to be learned."
The Independent Reviewer in his First Report on TPIMs said that
the Home Secretary would keep him fully briefed on that investigation,
and that he would expect to comment on its outcome in due course,
but at that time it would have been premature to do so.
He recommended that "the technical, operational and strategic
lessons of (Ibrahim Magag's) recent abscond should be identified
In its response to the Independent Reviewer's Report, the Government
agreed that it is important to identify and implement the lessons
to be learned from the absconding and says that this work is already
in progress, but it did not say what those lessons are.
41. We asked the Minister about the outcome of the
he said that there had been such a review, but it was not possible
to publish the document "because of matters of national security."
However, it had been shared with the Independent Reviewer, who
he expected might have something to say about it in his next report
on TPIMs. The Home Secretary told the House of Commons, during
the debate following the absconding of Mohammed Ahmed Mohamed,
that all the recommendations of the review following Ibrahim Magag's
absconding had been acted on, but she did not say what those recommendations
had been. She also
said that there would be a similar review into the most recent
case of absconding.
42. We understand that the Government's internal
report will include sensitive material which it is not in the
public interest to disclose, but it is undesirable that to date
there is nothing in the public domain about even the substance
of the findings of that review. We recommend that the Government
provide an "open" version of the outcome of its internal
investigation and review, to enable public and parliamentary debate
about and scrutiny of the circumstances of the absconding of two
Use of TPIMs where no direct threat
to public in UK
43. After Ibrahim Magag absconded, the Home Secretary
told the House of Commons that
at this time Magag is not considered to represent
a direct threat to the British public. The TPIM notice in this
case was intended primarily to prevent fundraising and overseas
44. Similarly, after Mohammed Ahmed Mohamed absconded,
the Home Secretary told the Commons:
The police and Security Service have confirmed that
they do not believe Mohamed poses a direct threat to the public
in the UK. The reason he was put on a TPIM in the first place
was to prevent his travelling to support terrorism overseas.
45. We were struck by the contrast between these
statements that the two TPIMs subjects who have absconded do not
pose a direct threat to the public in the UK and the statements
that were made by the Government at the time of the Bill's passage,
to the effect that TPIMs are exceptional measures justified only
by the necessity of protecting the public against the risk of
46. When the Minister gave oral evidence to us we
therefore asked him in how many cases TPIMs had been imposed on
individuals who do not represent a direct threat to the British
public. We asked
him three times but he did not provide a direct answer. He returned
to the question in his letter dated 23 July supplementing his
oral evidence, pointing out that s. 3 of TPIMA 2011 requires that
the Secretary of State "reasonably considers that it is necessary,
for purposes connected with protecting members of the public from
a risk of terrorism, for TPIMs to be imposed on the individual",
and that the court has found that this condition has been met
in all of the TPIM notices it has reviewed.
47. We accept that, under the Act as passed, TPIMs
can be lawfully imposed on an individual if the Secretary of State
reasonably considers it to be necessary "for purposes connected
with protecting the public from a risk of terrorism". The
Home Secretary's statements, however, that the two TPIMs subjects
who have absconded do not pose a direct threat to the public in
the UK serve as a stark reminder of the breadth of that statutory
power. If the sole purpose of a TPIM is to prevent travel to support
terrorism overseas, it must at least be questionable whether the
full range of restrictions available in a TPIM are justified,
rather than specific measures to prevent travel such as notification
requirements or surrendering a passport. The Minister's repeated
references in his oral evidence to the need to provide "assurance"
and "comfort" to the public that the Government is meeting
its responsibilities in relation to national security raise similar
concerns about the strict necessity for TPIMs in all cases.
We recommend that the breadth of the vaguely worded power to impose
TPIMs, "for purposes connected with protecting the public
form a risk of terrorism", be kept under careful review by
the Independent Reviewer.
48. We note in passing that in the wake of the latest
absconding by a TPIMs subject, it was widely reported in the media
that the Home Secretary is working on legislative proposals which
would enable her to deprive a naturalised UK citizen of their
citizenship if they were a terrorism suspect, even if the effect
of doing so would be to leave them stateless.
That this is under active consideration was confirmed by the Director-General
of the Office for Security and Counter-Terrorism in the Home Office,
Charles Farr, in his evidence to the Home Affairs Committee on
12 November 2013, in which he said:
It is not possible for us to deprive someone of their
British nationality if they are thereby left stateless. There
is some uncertainty, which we are currently looking at, about
whether that applies to people who have been naturalised here
as well as to citizens who are born here, but I hesitate to comment
on that any further because it is an issue that is with the lawyers.
49. It would be premature for us to comment on the
human rights compatibility of a policy proposal which has yet
to be formulated and presented to Parliament, but in view of the
clear obligations in international law not to render a person
stateless, we intend to subject any such proposal to the most
rigorous scrutiny were it to be brought forward.
50. One of the most significant changes made by the
TPIMs Act, compared to the previous control order regime, was
that the Secretary of State no longer has the power to require
relocation. In our scrutiny Reports on the Bill we welcomed the
disavowal of this power as a significant human rights enhancing
measure, noting that internal exile imposed by executive order
was an oppressive measure associated only with the most authoritarian
regimes. It was, however, one of the most keenly contested aspects
of the legislation during its passage, with some arguing that
removing the power to relocate terrorism suspects would pose an
unacceptable risk to public safety.
51. On each of the two occasions on which a TPIMs
subject has absconded, the debate about the absence of a power
of relocation has been re-ignited, with a number of people arguing
that absconding has been made easier by the Government depriving
itself of the power to relocate terrorism suspects. Following
the most recent instance, the absconding of Mohammed Ahmed Mohamed,
the Shadow Home Secretary wrote an open letter to the Home Secretary
alleging that "the decision to end relocations [...] has
led directly to two out of ten terror suspects now on TPIMs absconding"
and asking the Government to re-introduce the power to re-locate
suspects in individual cases, if it is justified and with appropriate
52. We asked the Independent Reviewer whether, during
his review, he had found any firm evidence that the risk of absconding
is increased by the lack of a power to relocate.
He replied that it is obviously easier to abscond if you have
friends and associates nearby, and it would not be at all surprising
if relocating somebody to a place where he did not know anybody
was going to make it more difficult for him to plan to escape.
He also pointed out the possible significance of the fact that
the seven people who absconded from control orders before 2007
had not been relocated, and that nobody absconded between 2007
and 2011 when relocation was widely used in control orders.
53. The Independent Reviewer was not, however, in
favour of relocation being reintroduced: "one can see the
utility of something without requiring that it be retained."
He had found in his report on TPIMs that relocation was effective
in preventing people from associating, but also that it was one
of the most resented aspects of control orders and was considered
to have the most damaging effect on family life. The Independent
Reviewer therefore concluded that "Parliament took a perfectly
proper decision by deciding to remove relocation", especially
in view of the additional money made available to the agencies
for increased surveillance, which enabled them to say that overall
there was no substantial increase in the risk to the public. The
Independent Reviewer was not aware of any publicly available account
of how much additional money was made available, and the Government
refused to say at the time of the passage of the Bill what the
relevant amount was; but, according to the Home Secretary, it
amounted to "tens of millions".
54. The Government has resisted the calls to re-introduce
the power to relocate TPIMs subjects. In his evidence to us the
Minister did not accept that relocation would have prevented Ibrahim
Magag absconding, although he relied in very general terms on
the Government's belief that "the overall package remains
appropriate to mitigate the risk".
The Home Secretary, in the debate in the Commons following the
absconding of Mohammed Ahmed Mohamed, similarly rejected the invitation
to re-introduce re-location.
55. We accept that, in principle, the risk of absconding
is likely to be higher when a TPIM subject remains in the midst
of their local community and network, and we acknowledge the fact
that, under the control order regime, no relocated individuals
absconded. However, we do not consider this to be sufficient
to demonstrate that the lack of a power to relocate terrorism
suspects leads to such a threat to public safety as to justify
re-introduction of the power. Nor have we seen any direct evidence
that the absence of a power to relocate TPIM subjects appears
to have significantly limited their effectiveness in practice.
We remain of the view that a power to relocate an individual away
from their community and their family by way of a civil order,
entirely outside the criminal justice system, is too intrusive
and potentially damaging to family life to be justifiable, and
we note that this also appears to be the view of the Independent
Impact on TPIMs subjects and
56. We received written evidence from Cage Prisoners
about the impact of TPIMs both on those who are directly subject
to them and their families:
TPIMs continue to have a profound impact on the lives
of TPIM subjects and their families. In the following submission,
CagePrisoners draws on interviews we have conducted with current
TPIM subjects and their solicitors in order to respond to the
JCHR's call for evidence. We discuss the impact of many different
TPIM regulations on detainees and their families. However, CagePrisoners
especially urges the JCHR to consider the following:
· Current TPIM's are in all cases stricter
then the first batch of Control Orders placed on Cerie Bullivant
and others. Detainees thus rightfully feel that things have stayed
the same or worsened under TPIMs (as opposed to control orders)
and have a heightened sense of hopelessness.
· Despite the reduction in curfew hours,
overnight and meeting restrictions still contribute to profound
isolation amongst detainees and their families.
· Specific TPIM regulations and poor communications
amongst government agencies make prolonged unemployment amongst
detainees inevitable. This contributes to detainees' sense of
isolation and worthlessness.
· Police have often responded to "breaches"
of these measures by arresting detaineeseffectively humiliating
them and traumatizing their familieseven when it was clear
that the breach was unintentional and that no harm to the public
· There is a definite belief amongst TPIM
detainees that these measures are designed to be breached and
facilitate their arrest, rather than being designed with national
security objectives in mind.
· These measures have had a profoundly detrimental
impact on the mental health of detainees and their families (including
severe depression, anxiety and trauma), and also seriously damage
relationships among family members.
We conclude that TPIMs are functionally punitive
measures enforced on individuals and families who have never been
convicted of any crime. TPIMs do not keep us safer because those
who want to abscond will. These measures are undemocratic and
poor public policy and as such, CagePrisoners cannot in good faith
make any recommendations as to how the regime could be improved.
The only solution is scrapping all systems of administrative detention
and returning to the criminal justice system since it is perfectly
equipped to manage terrorism-related prosecutions.
57. The Independent Reviewer has made recommendations
designed to mitigate what he regards as unnecessarily interfering
features of TPIMs.
GPS TAGGING AND REPORTING REQUIREMENTS
58. In his last Report on Control Orders, the Independent
Reviewer questioned the need for a requirement that subjects of
such orders telephone on entering and leaving the residence where
they are required to live, given that subjects were required to
wear GPS tags. The telephoning requirement was subsequently removed.
However, the requirement to report daily to a police station
remains, notwithstanding the GPS tag. In its evidence to us, Cage
Prisoners questioned why such reporting requirements continue
to be necessary.
59. We asked the Minister why it is necessary to
continue to require TPIM subjects to report daily to a police
station when GPS tagging now discloses their location.
The Minister's reply was that it was necessary "to provide
different steps of assurance", and he relied on the fact
that the courts have found the overall package to be proportionate.
RESTRICTIONS ON ASSOCIATION
60. Although TPIMs have been upheld in all the legal
challenges brought to date, the courts have in some cases questioned
the proportionality of certain restrictions on association, particularly
where prior notification has been required before meeting someone
for the first time or inviting them home.
Cage Prisoners argue that blanket restrictions on meetings are
very significant interferences with private life.
61. We asked the Minister whether, in view of judicial
criticism of the proportionality of certain restrictions on association
that have been imposed on individuals, the Government has reconsidered
its approach to imposing restrictions such as prior notification
requirements as regards meetings. He relied in response on the
TPIM Review Group meetings that take place quarterly, which monitor
the impact of the measures on each subject and their family and
consider whether any variations are required. In other words,
regular analysis of the continued appropriateness of the measures
already takes place, and the individual also has the opportunity
to ask for a variation of the order at any time.
MENTAL HEALTH SUPPORT
62. Cage Prisoners argue that there should be more
comprehensive mental health support for TPIM subjects and their
families. This does not appear to be an issue that was raised
directly with the Independent Reviewer, but we raised this concern
with the Minister.
The Minister again referred to the Quarterly Review Group meetings,
which monitor the impact of the measures on the subject's mental
health and physical well-being, although he accepted that there
is no specific mental health analysis that is provided there.
However, he did say that if evidence were presented, it would
be considered as part of the quarterly review.
63. The Government relies heavily on the TPIM Quarterly
Review Group as an effective mechanism for picking up any disproportionate
impact of TPIMs on their subjects and their families and responding
accordingly. However, there is little or no evidence in the public
domain to support the Government's assertion about the effectiveness
of the Quarterly Review Groups in this respect, and we note that
the Independent Reviewer has raised some concerns about the proportionality
of certain restrictions, such as reporting requirements and restrictions
on association, notwithstanding the Quarterly Review Group meetings.
We recommend that the Government give further consideration to
specific ways in which the impact on TPIMs subjects and their
families can be mitigated, in the light of all relevant existing
and any future recommendations of the Independent Reviewer.
Unfairness and delay in TPIMs
64. The Independent Reviewer reports that the representatives
of TPIM subjects point "with justification" to the lengthy
periods that can elapse before determinations of the Home Secretary
can be tested in the courts. He has identified delay in TPIMs
proceedings as one of the most serious sources of unfairness in
the legal procedures.
65. The Independent Reviewer told us in his oral
evidence that the real problem with the way in which the legal
process for challenging TPIMs operates is the time it can take
to get to court to challenge a TPIM or a modification of a TPIM,
and the fact that this delay seems to be designed into the system
because the court's function was not to make the decision itself
but to review the reasonableness of the Home Secretary's decision.
The Independent Reviewer contrasted the position in the Special
Immigration Appeals Commission, where it was possible to have
a challenge to a bail condition determined by the tribunal within
a matter of days. The courts have also expressed concerns about
the amount of delay in TPIMs cases.
66. The Independent Reviewer favours a forum, chaired
by a judge, to address the longstanding concerns of the special
advocates about the fairness in practice of closed material procedures
in TPIMs and other proceedings, with a view to recommending changes
to court rules and practices. The Government, however, prefers
less formal ways of addressing the special advocates' concerns.
The Minister told us that the Government is working with the special
advocates to speed up the process in various ways, for example
by ensuring that administrative communications requests from the
special advocates are dealt with within 24 hours.
67. We understand that something close to the Independent
Reviewer's recommendation has taken place in relation to proceedings
before the Special Immigration Appeals Commission ("SIAC").
The Chair of SIAC, Mr Justice Irwin, initiated a process of consultation
and discussion with SIAC users, including the special advocates,
which has culminated in a new "Practice Note" which
seeks to address a number of the problems with closed material
procedures that have consistently been identified by the special
advocates, such as endemic late disclosure.
68. We agree with the Independent Reviewer's recommendation
that the special advocates' longstanding concerns about closed
material procedures in control order and TPIM proceedings be considered
in a judicially-chaired forum. We recommend that such a process
be initiated in relation to TPIM proceedings in the High Court,
drawing on the positive experience of the process already conducted
by Mr Justice Irwin in relation to SIAC.
13 Independent Reviewer's First Report on TPIMs, para.
Ibid., para. 11.5. Back
Ibid., para. 11.10. Back
HL Deb 23 April 2013 GC359. Back
Q2,16 July 2013. Back
Q3, 16 July 2013. Back
Q2, 19 March 2013. Back
Home Affairs Committee evidence session with Charles Farr, 12
November 2013, http://www.publications.parliament.uk/pa/cm201314/cmselect/cmhaff/c231-iii/c23101.htm. Back
Independent Reviewer's First Report on TPIMs, paras 8.21-8.23
and 11.28-11.29. Back
HC Deb 8 Jan 2013 col 163. Back
Independent Reviewer's First Report on TPIMs, para. 8.21. Back
Ibid., Recommendation 4. Back
Q4, 16 July 2013. Back
HC Deb 4 Nov 2013 col 24. Back
HC Deb 8 Jan 2013 col 161. Back
HC Deb 4 Nov 2013 col 23. Back
Q5, 16 July 2013. Back
See e.g. Q5, 16 July 2013. Back
See e.g. "Theresa May plans new powers to make British terror
suspects stateless", The Guardian, 12 November 2013. Back
Letter dated 12 November 2013 from Rt Hon Yvette Cooper MP to
Rt Hon Theresa May MP, http://www.politicshome.com/article/88131/labour_letter_to_theresa_may_from_yvette_cooper_on_the_tpims_regime_and_need_for_credible_measures.html. Back
Q11, 19 March 2013. Back
HC Deb 4 Nov 2013, col 24. Back
Q6, 16 July 2013. Back
HC Deb 4 Nov 2013, col 24. Back
Secretary of State for the Home Department v AM 
EWHC 1854 (Admin) para. 30. Back
Q8, 16 July 2013. Back
Q6, 19 March 2013. Back
Q11, 16 July 2013. Back