Post-Legislative Scrutiny: Terrorism Prevention and Investigation Measures Act 2011 - Human Rights Joint Committee Contents


2  The operation of the TPIMs Act

The priority of investigation and prosecution

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."[13]

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.[14] 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.[15]

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."[16] James Brokenshire similarly told the House of Commons on 10 June that "the focus certainly remains on investigating TPIMs subjects."

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.[17] 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 2010/11.[18]

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.[19] 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.[20] 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 with.

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,[21] 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 they live.

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.[22] 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."[23] 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.[24] He recommended that "the technical, operational and strategic lessons of (Ibrahim Magag's) recent abscond should be identified and implemented."[25] 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 investigation,[26] and 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.[27] 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 TPIM subjects.

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 travel.[28]

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.[29]

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 terrorism.

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.[30] 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.[31] 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.[32] 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:[33]

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.

Relocation

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[34] 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 judicial safeguards.

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.[35] 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."[36] 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".[37]

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".[38] 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 Reviewer.

Impact on TPIMs subjects and their families

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 detainees—effectively humiliating them and traumatizing their families—even when it was clear that the breach was unintentional and that no harm to the public existed.

·  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.[39] 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.[40] 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.[41] 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 proceedings

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.[42] 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.[43]

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. 1.14. Back

14   Ibid., para. 11.5. Back

15   Ibid., para. 11.10. Back

16   HL Deb 23 April 2013 GC359. Back

17   Q2,16 July 2013. Back

18   https://www.gov.uk/government/publications/operation-of-police-powers-under-the-terrorism-act-2000-2012-to-2013/operation-of-police-powers-under-the-terrorism-act-2000-and-subsequent-legislation-arrests-outcomes-and-stop-and-searches-great-britain-2012-to-20  Back

19   Q3, 16 July 2013.  Back

20   Q2, 19 March 2013. Back

21   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

22   Independent Reviewer's First Report on TPIMs, paras 8.21-8.23 and 11.28-11.29. Back

23   HC Deb 8 Jan 2013 col 163.  Back

24   Independent Reviewer's First Report on TPIMs, para. 8.21. Back

25   Ibid., Recommendation 4. Back

26   Q4, 16 July 2013. Back

27   HC Deb 4 Nov 2013 col 24. Back

28   HC Deb 8 Jan 2013 col 161. Back

29   HC Deb 4 Nov 2013 col 23. Back

30   Q5, 16 July 2013. Back

31   See e.g. Q5, 16 July 2013. Back

32   See e.g. "Theresa May plans new powers to make British terror suspects stateless", The Guardian, 12 November 2013. Back

33   Q148. Back

34   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

35   Q11, 19 March 2013. Back

36   Ibid. Back

37   HC Deb 4 Nov 2013, col 24. Back

38   Q6, 16 July 2013. Back

39   HC Deb 4 Nov 2013, col 24. Back

40   Secretary of State for the Home Department v AM [2012] EWHC 1854 (Admin) para. 30. Back

41   Q8, 16 July 2013. Back

42   Q6, 19 March 2013. Back

43   Q11, 16 July 2013. Back


 
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