Background

60. The Government continues to state that prosecution is, and will remain, its preferred way of dealing with terrorists.[65] We shall refer to this as its policy of "the priority of prosecution". The policy means that prosecution is the Government's first priority, and control orders are only resorted to in cases where prosecution is not possible.

61. We continue to welcome the Government's professed policy of the priority of prosecution. We regard criminal prosecution, rather than indefinite resort to the parallel jurisdiction of control orders, as the way, compatible with human rights, to deal with these cases in the long run. In the past, however, we have expressed serious concerns about the vigour with which the Government was pursuing prosecution as its preferred counter-terrorism measure. In our report on last year's renewal of the control orders legislation, for example, we expressed our concern that after the making of a control order there appeared to be insufficient continuing investigation with a view to prosecution, and a lack of effective systems to keep the prospects of prosecution under review.[66]

62. We welcome the fact that since last year's renewal of the control orders regime the Government has made some progress towards facilitating prosecutions of individuals for offences relating to terrorism, for example by including provision for post-charge questioning in the Counter-Terrorism Bill[67] and by accepting the recommendation of the Chilcot Report that it should be possible to find a way to use some intercept material as evidence, provided certain key conditions can be met to safeguard national security.[68] We note, however, that the Chilcot Report states that it has seen no evidence to suggest that the need for measures such as control orders would be reduced by the introduction of intercept as evidence.[69]

The House of Lords judgment in E

63. We also welcome the fact that the House of Lords in the recent case of E upheld the decisions of lower courts that it is implicit in the scheme of the PTA that it is the Secretary of State's duty to keep the possibility of prosecution under continuing review.[70] Indeed, the Secretary of State in that case expressly accepted that "the scheme of the Act is that control orders should only be made where an individual cannot realistically be prosecuted for a terrorism-related offence."[71] We particularly welcome Baroness Hale's articulation of the human rights justification for the policy of the priority of prosecution:

" … a control order must always be seen as 'second best'. From the point of view of the authorities, it leaves at liberty a person whom they reasonably believe to be involved in terrorism and consider a risk for the future. The public is far better protected, even while criminal proceedings are pending, let alone if they result in a conviction. From the point of view of the controlled person, serious restrictions are imposed upon his freedom of action on the basis of mere suspicion rather than actual guilt. From both points of view, prosecution should be the preferred course."[72]

64. The same point is made by Lord Carlile in his Third Report on Control Orders: he welcomes what he describes as the "trend" towards the charging of more individuals with criminal conduct, saying that it is in the public interest for the conventional charge and trial process to be used whenever possible, rather than control orders.[73]

65. Although we welcome these developments, the fact that no individual who has been made the subject of a control order has subsequently been prosecuted for a terrorism offence, other than for breach of a control order, seems to us to be significant.[74] We therefore continue to question the extent to which, in relation to certain individuals, priority is really given to criminal prosecution rather than the indefinite and extensive control which is currently available through the use of control orders. In our view, the Government's professed policy of preferring to prosecute as a first resort could be more effectively underpinned by a number of amendments to the control orders framework. We summarise these below and will suggest concrete amendments to give effect to them in our forthcoming report on the Counter-Terrorism Bill.

Amendments to the control orders framework

(1) NEW PRE-CONDITION FOR MAKING OF CONTROL ORDER

66. The House of Lords in E rejected the argument that the absence of a realistic prospect of prosecution is a pre-condition of the making of a non-derogating control order. The reason for rejecting it was that "there may be a need to act with great urgency. … The condition precedent contended for would have the potential to emasculate what is clearly intended to be an effective procedure and cannot be taken to represent the intention of Parliament."[75]

67. In our view, however, it is a simple matter to amend the statute in a way which deals with the concern about urgent cases at the same time as making absolutely clear that control orders should only be made where an individual cannot realistically be prosecuted for a terrorism offence. We think it is important to do so because most control orders are made using the non-urgent procedure: in 2007 there was only one case in which the urgent procedure was used by the Secretary of State.[76] We recommend that the PTA 2005 should be amended to provide that, except in urgent cases,[77] the Secretary of State may only make a control order where she is satisfied that there is no reasonable prospect of successfully prosecuting the subject of the order for a terrorism-related offence.

68. This would make absolutely clear that it is Parliament's intention that, except in urgent cases, control orders are only to be made when it is considered that there is no reasonable prospect of successfully prosecuting the subject of the order for a terrorism-related offence.

(2) DUTY ON SECRETARY OF STATE TO KEEP POSSIBILITY OF PROSECUTION UNDER REVIEW AND TO FACILITATE SUCH REVIEW

69. The Secretary of State argued in the Court of Appeal in E that, having consulted the chief of police at the outset, she need do no more thereafter than make periodic inquiry whether the prospect of prosecution had increased. The Court of Appeal rejected that argument and held that more was called for from the Secretary of State:[78]

"Once it is accepted that there is a continuing duty to review …, it is implicit in that duty that the Secretary of State must do what he reasonably can to ensure that the continuing review is meaningful… it was incumbent upon him too provide the police with material in his possession which was or might be relevant to any reconsideration of prosecution."

70. The House of Lords in E endorsed the Court of Appeal's approach.[79]

71. The Government, in its reply to Lord Carlile's Second Report, says that new procedures are now in place in relation to prosecution. At the initial stage of making the order, the police now write a much more detailed letter to the Home Office advising on the prospect of prosecution after having sought the CPS's advice. New procedures are also said to be in place to ensure that the possibility of prosecution is also considered on an ongoing basis. The police review any new material brought to their attention and, where necessary, consult the CPS and feed the outcome into the formal Control Order Review Group.

72. We welcome the improvements to the Home Office's systems for keeping the prospects of prosecution under review. In our view, however, the policy of giving priority to prosecution would be better served by turning this from a matter of mere practice into one of express statutory obligation. We recommend that the PTA 2005 be amended to impose an express duty on the Secretary of State, throughout the period during which a control order has effect, to ensure that the question of whether there is a reasonable prospect of successfully prosecuting the subject of the order for a terrorism-related offence is kept under review at least every 3 months.

73. We also believe it would be beneficial to impose an express duty on the Secretary of State to facilitate such a review of the prospects of prosecution. We discussed control orders at an informal meeting with Deputy Assistant Commissioner Peter Clarke and other senior police officers on 23 October 2007 and we were not left feeling confident that the police see very much of the material on the basis of which the Home Secretary imposes control orders on individuals. We therefore recommend that the Secretary of State should be placed under a duty to consult the police prior to her regular review of the prospects of prosecution and to share with the police such information (including intelligence information) as is available to her which is relevant to the prospects of a successful prosecution.

74. We will seek to propose amendments to the PTA to this effect in due course.

(3) TRANSPARENCY OF PROSECUTION DECISIONS

75. Lord Carlile in his Third Report on Control Orders observes that the quality of the letters from the police concerning possible prosecution has improved in that some reasoning is now given, but he would like to see more detail given to the Home Secretary as to why additional investigation, or different forms of evidence gathering, might not enable a criminal prosecution.[80] He believes that continuing investigation into the activities of some of the current controlees could provide evidence for criminal prosecution and conviction.

76. We recommend that the control orders legislation be amended to secure greater transparency of decisions that prosecution is not possible, first by imposing a duty on the chief officer of police to provide reasons when he advises the Secretary of State that there is no realistic prospect of prosecution and, second, by providing that those reasons shall be disclosed to the controlled person to the extent that such disclosure would not be contrary to the public interest. This would give legislative effect to a recommendation first made by Lord Carlile in his First Report on Control Orders in 2006.[81]

66   JCHR's Second Report on Control Orders Renewal, above n. 5, at paras 48, 49 and 54. Back

67   See JCHR Report on the Counter-Terrorism Bill, above n. 8, chapter 3. Back

68   Prime Minister's statement to the House of Commons, HC Deb 6 Feb 2008. Back

69   Privy Council Review of Intercept as Evidence, Cm 7324 (30 January 2008). Back

70   Secretary of State for the Home Department v E [2007] UKHL 47 e.g. at paras 18 and 26-28. Back

71   Ibid. at para. 14. Back

72   Ibid. at para. 26. Back

73   Lord Carlile's Third Report on Control Orders, above n. 18, at paras 4 and 74. Back

74   Confirmed by the Secretary of State in her letter dated 18 Feb 2008 (Appendix 2). Back

75   Secretary of State for the Home Department v E [2007] UKHL 47 at para. 16 (Lord Bingham). Back

76   Lord Carlile's Third Report on Control Orders, above n. 18, at para. 94. Back

77   That is, where the control order is made under s. 3(1)(b) PTA 2005. Back

78   Secretary of State for the Home Department v E [2007] EWCA Civ 459 at para. 97. Back

79   Secretary of State for the Home Department v E [2007] UKHL 47 at para. 18. Back

80   Lord Carlile's Third Report on Control Orders, above n. 18, at para. 74. Back

81   First Report of the Independent Reviewer pursuant to section 14(3) of the Prevention of Terrorism Act 2005 (2 February 2006) at paras 45-46. Back