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The Fate of Terrorism Prevention and Investigation Measures

About The Author

Ivonna Beches (Writer)

Ivonna is a third year law student at Durham University, currently undertaking a study year abroad at the University of Groningen in the Netherlands. Ivonna aspires to be a barrister, and has a keen interest in immigration law. Outside her studies, Ivonna is a keen writer, and is currently working on a novel.

The Terrorism Prevention and Investigation Measures Act 2011 was introduced to replace the anti-terrorism control order established under Section 1 of the Prevention of Terrorism Act 2005, which was much stricter than its successor, yet delivered the same goal. These preventative measures ensure that those suspected of acts linked to acts of terrorism do not progress to commit acts of terrorism themselves. However, since the 2011 Act came into effect in 2012, two subjects of this legislation have absconded and none have been prosecuted for terrorist acts. It has been suggested that five of the original nine suspects subject to notices under this statutory provision still pose a threat to public safety, despite their TPIM notices officially expiring in January 2014. The debate is divided between opinions that TPIMs still have a detrimental effect on the equal provision of human rights and that they are not doing enough to prevent the threat of terrorism. Are TPIMs actually effective at all in carrying out their purpose? 

Control orders were introduced under the Prevention of Terrorism Act 2005 as a more lenient take on counter-terrorism policy. Their introduction followed the decision in the Belmarsh prison case where indefinite detention of non-nationals suspected of terrorism, as authorized by the Anti Terrorism Crime and Security Act 2001, was deemed incompatible with the Human Rights Act 1998. As such, control orders were intended to monitor terrorism suspects without detaining them. The introduction of the Terrorism Prevention and Investigation Measures Act 2011 was a further relaxation to the policy brought about without the behest of any legal ruling, but simply as a result of a commitment the Coalition Government had made to:

move to a system which will protect the public but will be less intrusive, more clearly and tightly defined and more comparable to restrictions imposed under other powers in the civil justice system (see page 41, paragraph 23)

For an individual to become a subject of the 2011 Act, a certain set of criteria relating to suspicion and proof must be met, but the threshold for these criteria is set fairly low.  The Secretary of State must reasonably believe that the subject was involved in terrorist activity. The standard of proof attached to reasonable belief is slightly higher (see paragraph 199) than the one attached to reasonable suspicion (the condition set out under the 2005 Act) as it requires the Secretary of State to believe that there has been actual involvement in terrorist acts, not simply that there may have been. However, even this heightened requirement of proof is a very long way off from the proof beyond all reasonable doubt standard seen when determining criminal liability.

Moreover, the Secretary of State must also reasonably believe that the imposition of a TPIM on a certain suspect is necessary and, further, that the specific restrictions within the measure are necessary for the protection of the public. The High Court is normally required to provide the Secretary of State with permission to impose a TPIM (as set out in condition E of s.3 of the 2011 Act), but the latter equally has a great amount of leeway to impose a measure without permission where they reasonably believe the case requires it. Although section 9(1) of the 2011 Act ensures that all measures are eventually subject to review, suspects placed under a TPIM may not have a chance to argue their case in court until after their freedom has been greatly restricted. 

Both control orders and TPIMs are prime examples of pre-emptive justice, or what could more plainly be deemed as punishing suspects for crimes they are yet to commit. Those subject to an order under the TPIM have a limited ability to appeal the imposition of the order. Not only is this because of the restrictions they are placed under, but also because access is not granted to the evidence relating to their arrest. Human rights organisations, such as Liberty, have heavily criticised these orders for being unfair.On the other hand, Shadow Home Secretary Yvette Cooper has, on several occasions, berated the current government’s decision to introduce this ‘relaxed form of control orders’, as they allegedly do not do enough to ensure the protection of the general public from ‘dangerous terrorism suspects’.

The reform to the way in which the restrictions imposed on the suspects operate and the time limit placed on them have been blamed for making it easier for suspects to abscond. In 2013, two escapees “disappeared off the security service’s radar” while under TPIM orders and have not been found. In addition, all TPIMs in force against suspects since 2012 expired completely on the 26th of January of this year. In light of these facts, the question of the actual effect of TPIMs in successfully preventing acts of terrorism becomes all the more important. 

TPIMs have been classified as a measure of last resort to be used in instances where the ordinary process of criminal prosecution is not a feasible option. The measures imposed by them are largely related to the surveillance of suspects, but there rests the problem, as the measures are still, even in their relaxed form, very intrusive. Schedule 1, Part 1 of the Terrorism Prevention and Investigation Measures Act 2011, sets out a finite list of obligations that can be imposed on suspects. One of the most important powers provided is the power to impose a curfew and monitor overnight residence, as this is a much more relaxed version of the relocation powers granted to authorities under control orders seen under the Prevention of Terrorism Act 2005.The Act explicitly states that a suspect may be restricted:

on his association or communications with specified persons or with other persons generally...[and] in respect of his place of residence or on the persons to whom he gives access to his place of residence

In practice this was sometimes enforced through the use of forced relocation. David Anderson Q.C., the independent reviewer of terrorism legislation, explains in his first report on TPIMs, published in March 2013, that forced relocation was in fact an effective tool in the disruption of terrorist activity, and that its removal in the 2011 legislation could make it easier for subjects to abscond (see page 49). However he also recognises that for this approach to be fully appropriate, the burden of proof against suspects, as mentioned above, has to be much higher than the one provided in the 2011 legislation.  

Other restrictions that can be imposed include travel, association with certain parties or individuals, access to certain areas and access to certain financial services, types of property and types of electronic devices.  Various small changes have been made to most of these restrictions making them more lenient than their control order counterparts, and giving some ground to the criticisms submitted by Yvette Cooper. The uncertainty of their effectiveness is also increased when one considers the two-year limit imposed under the 2011 Act. Once a TPIM has been imposed, it can only be renewed once and then it expires permanently, unlike control orders which could indefinitely be renewed every year untilthe suspect was either prosecuted or stopped being a threat.   

When looked at closely, the surveillance measures imposed under TPIMs are not very different from those imposed on a person remanded on bail. The only distinguishing feature isthat the provision of bail is normally subject to the court being convinced that the suspect is not so dangerous as to warrant detention. In light of this fact, one of Liberty’s objections to TPIMs, namely that “dangerous terrorists should not be in their living rooms but convicted and imprisoned”, becomes particularly convincing. In some ways, this concern seems to mirror the concerns of the shadow Home Secretary.

However, when the opinion is looked at more closely, it becomes clearer that Liberty are arguing that, where there is enough evidence to prove that a suspect is actually a dangerous criminal, they should not be granted the prospect of bail.

The restrictions themselves are not very strict. They are simply surveillance measures, intended to keep a close eye on what are believed to be terrorist suspects. They are problematic only so far as they breach the human rights of the suspects, particularly their rights to a fair trial. The suspects are placed under TPIMs on the basis of limited and often hearsay evidence, and their subsequent right to appeal is also limited mainly by information being withheld on grounds of national security.  What this could mean, is that for suspects that are truly guilty, and are dangerous terrorists, TPIMs are not particularly effective as a deterrent. Shadow Secretary Yvette Cooper has suggested they are not effective at all. She argued that a majority of the subjects remained a threat to the public, and that the orders had done nothing to ensure that they would not commit dangerous acts as soon as they were released. Conversely, this view, shared in part by the Joint Committee on Human Rights, chooses to ignore the important relationship between the strictness of a measure imposed on a suspect and the amount of evidence available that classifies them as a suspect. 

The report of the Joint Committee on Human Rights, published on the 24th January 2014 went as far as to state that they believed TPIMs were “withering on the vine” as a counter-terrorism measure, recognizing that no new TPIMs have been imposed since October 2012, and thatall current orders were set to expire at the end of January 2014. Moreover, the Committee noted the lack of an investigative element as one of the most pressing issues. Out of the ten people that have been subject to TPIMs, none of them have been prosecuted on a terrorism related charge. Only one subject has been remanded in custody in December 2012 as a result of a breach of the TPIM itself. In addition, as previously mentioned, two of the subjects have absconded and have not been found since. David Anderson QC explained in his first report that the nature of TPIMs makes it impossible for the authorities to enable the concurrent investigation and prevention of terrorism. He states that the lack of prosecution should “come as no surprise” since the suspects are fully aware that they are under scrutiny and that if they refrain from engaging in terrorist acts they would be “free of all constraints within two years”. In addition he warns against any assertions that the preventative function of the measures are 100% effective. He states that there has “not yet been any full scale analysis of the extent to which key national security targets have been disrupted by TPIM notices”, but that some of the notices  are “likely to have been effective in disrupting terrorism” more generally.

While the disruptive nature of the measures does make them valuable for the protection of the public, and the move from control orders to TPIMs presents an awareness of the need to protect human rights within the context of emergency legislation, the next steps that will be taken now that the measures have expired remain unclear.  Enhanced Terrorism and Investigation Prevention Measures (ETPIMs) are a possibility and would be imposed under the authority of the Act of the same name, which for the time being, remains a draft bill. The basis of their enhanced element is that they impose the restrictions that had previously been present in control orders, while maintaining most of the safeguards of TPIMs. As such, they would do little to solve the problems outlined above. In theory, ETPIMs could be applied presently to former subjects of TPIMs who, are suspected to still pose a risk to public safety; however, it has been made clear that these powers, once imposed, would only be available for 12 months, and renewable only once.  On the contrary, the TPIM Act 2011 is valid for five years and can be renewed for another five years subject to a consultation with the independent reviewer, the intelligence services commissioner and the direction of MI5, as set out in s. 21 of the Act. The government, therefore, has the power to legally create TPIMs until 2016; after that date the legislation would have to be renewed for the actions to be performed lawfully. Moreover, the government has stressed that ETPIMs, because of their controversial nature, are to be imposed only in exceptional and unanticipated circumstances. This could possibly mean they are only likely to be imposed as a response to a clearly defined threat of an imminent terrorist attack. Thus, they are unlikely to be the appropriate next measure in the effort to keep dangerous suspects under surveillance.

Since the date of expiration of all of the previously active TPIMs, the second report on TPIMs of the independent reviewer of terrorism legislation, published on the 27th of March remains the only extensive review on the current situation. The recommendations presented start byrecognising that TPIMs are “like any measure short of imprisonment”, and will never provide a complete guarantee of safety, but that they perform their function well, that is: “disrupting potentially dangerous terrorists for up to two years”. This is perhaps the most apt conclusion that can be drawn in the situation. TPIMs have evolved out of a need to ensure a more even balance between the protection of individual rights and the protection of the general public from terrorism. Extending the current two-year limit or returning to the power of indefinite renewal would only serve to disrupt this careful balance. The recommendations in the aforementioned report involve learning from the mistakes made under the TPIM Act so far. David Anderson QC suggests that locational constraints should be strengthened and the power to relocate certain subjects should be restored to some degree, mainly in the interests of preventing or deterring absconding (see page 34). He also mentions that there should be a power to “require subjects to attend meetings under the auspices of the National Probation Service”. However, these increased constraints would need to be balanced with an improvement in the legitimacy of the TPIM system, which would include: raising the standard of proof to one of the balance of probabilities as opposed to reasonable belief, and improving review and appeal procedures.

If TPIMs are accepted as what they are, (exceptional measures within an emergency procedure) then the suggestion that they do not do enough is a weak one. It is also worth mentioning that, as it stands, they remain the best version of pre-emptive justice in relation to terrorism to date. Nevertheless, this conclusion does not rule out the fact that there is still considerable room for improvement; rather, it suggests that, an overly-critical view of the purpose of TPIMs may not be all that constructive in the effort to increase their effectiveness within their predefined parameters.     

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Tagged: Anti-Terror, Criminal Law, Human Rights

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