Executive Measures after 9/11: the Powers and their Use 217

Chapter 7
Executive Measures after 9/11: the Powers and their Use

Introduction and Overview

The context of operation of the executive measures deployed after 9/11 and their role in the Government’s counter-terrorism strategy has just been explored. This chapter has a different focus. It constitutes an in-depth examination of those powers, their rationale and competing claims on their use or misuse. It begins with the ATCSA regime of indefinite detention without trial of foreign national terrorist suspects, the most obvious and draconian legislative response in the United Kingdom to the events of 9/11. It then considers, in turn, control orders under PTA 2005; national security deportations; issues of removal of citizenship and the right of abode; and detention in Iraq and Afghanistan. The powers are extensive. All make inroads into important human rights and civil liberties and have generated controversy and concern. Much relates to the substance and use of these powers and is examined in this chapter. A good part centres on the decision-making and appeal processes, the subject of chapter 8. Insofar as concerns have generated litigation, its nature and outcomes form the subject matter of chapter 9. It will become clear that some individuals have been subjected in turn to more than one of the executive measures (have had their lives seriously disrupted for more than five years without being found guilty of criminal conduct) as Government strives to deal in ways that are compatible with ECHR rights and freedoms with those it cannot or is unwilling to prosecute.

ATCSA Detention Without Trial

The Powers and their Rationale

This was the Government’s principal and most draconian response to the threat perceived as posed to the United Kingdom, an ally of the United States in the ‘war on terror’, in the wake of the 9/11 attacks. The threat was characterized by Government as one amounting to a public emergency threatening the life of the nation, warranting derogation under Art. 15 ECHR, to the extent strictly required by the exigencies of that emergency situation, from its obligations under Art. 5 ECHR. The Notice of Derogation, communicated to the Secretary-General of the Council of Europe as Art. 15(3) demands, was annexed to the Derogation Order, approved by Parliament under the HRA. The Notice justified the derogation by reference to the 9/11 attacks, to the UN Security Council Resolutions in consequence characterizing the attacks and other international terrorism as a threat to peace and security, and because of

… a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism. In particular, there are foreign nationals present in the United Kingdom who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism, of being members of organisations or groups which are so concerned or of having links with members of such organisations or groups, and who are a threat to the national security of the United Kingdom.1

In short, the problem was perceived, as in the Gulf War (see chapter 4), as one posed by ‘undesirable aliens’, who could not always be prosecuted. Many could not be deported even on national security grounds because of the Chahal principle (real risk of torture etc. in their national state).2 Their detention for deportation was permissible under national law3 and the ECHR only for so long as deportation was a realistic prospect.4 Accordingly, Part 4 of ATCSA enabled, under a range of immigration provisions the effect of which would otherwise be limited temporally,5 the indefinite detention without trial of someone, not a British citizen or with the legal right of abode in the United Kingdom, whom the Home Secretary certified as a suspected international terrorist threat to national security, and who could not be deported for a legal reason (typically Art. 3 ECHR, its ICCPR and UNCAT equivalents) or a practical one.6 The Home Secretary could so certify such a person where he reasonably both believed that the person’s presence in the United Kingdom was a risk to national security, and suspected that the person was a terrorist.7 For these purposes, a ‘terrorist’ was someone who was or had been concerned in the commission, preparation or instigation of acts of international terrorism, was a member of or belonged to an international terrorist group, or had links with an international terrorist group in the sense that he or she supported or assisted it.8 An international terrorist group was one subject to the control or influence of persons outside the United Kingdom, where the Home Secretary suspected that the group was concerned in the commission, preparation or instigation of acts of international terrorism.9 ATCSA deployed the definition of ‘terrorism’ embodied in the Terrorism Act 2000 considered in chapter 1. Certification enabled a range of actions to be taken against the persons notwithstanding the inability to remove them,10 but more importantly in present context it enabled their indefinite detention without trial under specified detention powers under immigration law.11

The Use of the Powers

The Newton Committee considered the circumstances in which there would be resort to ATCSA detention, and also its interrelationship with criminal prosecution and national security deportation.12 It noted that the police and the Security Service consider the options open for action against a foreign national (including referring a case to the Crown Prosecution Service) if available intelligence suggests involvement in international terrorism. In deciding whether to resort to ATCSA detention, the authorities have regard not just to the likelihood of securing a conviction, but also consider the extent to which the likely sentence would address the potential threat posed by the suspect. For example, if the successful conviction of a terrorist suspect for credit card fraud was likely to lead to detention for a matter of months, the authorities might still pursue certification and detention under Part 4. Where the person concerned was considered to be a threat to national security but successful prosecution was unlikely, or the potential sentence was thought insufficient, MI5 might instead recommend a national security deportation. Where appropriate, if deportation was not possible, it would also recommend certification and detention under ATCSA Part 4. The decision whether to recommend certification to the Home Secretary was made by the Home Office in consultation with the intelligence agencies, the police and Foreign and Commonwealth Office.

Despite the gravity of the perceived threat, not all of those who might fall within the scope of ATCSA Part 4 were detained:

It would depend on such matters as the strength of the intelligence case, the prospect and gravity of any criminal proceedings, possible length of sentence, the management of the risk whether defensively or to obtain information, the prospect of deportation, and the significance of the threat which they were assessed to pose and whether detention was proportionate to that threat. Resources for detention [were] relevant. It was unlikely, if the danger warranted detention, that compassionate or family circumstances would prevent it.13

Only 16 persons were ever certificated and detained. Eight were detained in December 2001, one in February 2002, two in April 2002, one in October 2002, one in November 2002, two in January 2003 and one in October 2003. Another was certified in August 2003 but detained under other powers. Two certificates were revoked when the individuals voluntarily left the country rather than be detained (Ajouaou and F), on the basis that the Home Secretary considered he could not properly regard someone’s presence in the country to be a threat to national security where in fact the person was not present in the country.14 One appeal against certification was allowed (M). Several others were admitted to bail on appeal. Detention (but not certification) of two others under ATCSA ended when their mental condition became such that they were instead detained under mental health legislation (Abu Rideh, P). The certification and detention of another (D) was revoked by the Home Secretary in April 2004 for reasons unknown to SIAC, and he was released without conditions. Between December 2001 and March 2005, the detainees were held in a number of maximum security jails: principally HMP Belmarsh, but also HMP Woodhill. At the end of January 2005, Lord Carlile reported, only seven were held in prison solely under Part 4 of ATCSA. The number of detentions had been reduced by a few being charged with conventional crime and transferred to remand status pending Crown Court trial, one released on bail subject to strict conditions amounting to house arrest, an unconditional release, and the two transfers to secure hospitals. That number was reduced further by the government’s decision not to oppose bail (albeit under stringent conditions including house arrest in some cases) in relation to all eleven remaining detainees.15 But these were then made subject to non-derogating control orders on 11 March 2005. On 11 August 2005 eight were revoked and replaced by notice of deportation on security grounds. Some of those were released on stringent bail conditions, others detained pending deportation. In short, a number of the same people moved from one regime to another, so that, by mid-2006 they had been in one form of custody (including house arrest or significant restriction under a control order) since 2001.

Lord Carlile undertook three reviews of the operation of the scheme and throughout was of the view that, on the material he had seen, each of the detainees was a suitable candidate for certification and detention. The detainees had several things in common aside from foreign national status. All are male. All are Islamists. Their connection is with countries in the Middle East or North Africa. The identity of some of them is known (Ajouaou, Abu Rideh, Abu Qatada). Others have been referred to only by letter of the alphabet (A, B, C, D, E, F, G, H, I, K, M, P, S). The nature of the bases of ATCSA certification and the difficulties of challenging the decision to detain are conveyed graphically by setting out some details of each of the individual cases. Those details are an amalgam of material from decisions of SIAC on appeal, on the issue of bail and on first or subsequent reviews of certification. The limitations of the information here presented must be stressed. The material represents what SIAC found on the basis of evidence and intelligence submitted by the Home Secretary in ‘open’ and ‘closed’ session. Much of it was contested vigorously by appellants denied the full case against them. In other cases, the appellants maintained a general denial of the Home Secretary’s contentions, but otherwise took no real part in what they saw as unfair proceedings. Some refused legal representation. Where possible, SIAC had an advantage over the Home Secretary, namely, the benefit of the evidence and intelligence being probed by the forensic skills of the Special Advocates. Finally, the standard to be satisfied falls far short of the criminal standard of proof beyond reasonable doubt or even the civil standard of balance of probabilities. The question for SIAC was whether at the date of the hearing there were reasonable grounds (a) to suspect the person to be an international terrorist with links to Al Qaeda or associates and (b) to believe in consequence their presence in the United Kingdom to be a risk to national security.

A is an Algerian in the United Kingdom since 1989. In 1992 he was deported to Sweden as an overstayer, but was returned by the Swedish authorities to this country. A subsequent asylum application was refused and the refusal upheld on appeal. His claim for indefinite leave to remain on the basis of children living here for more than seven years was rejected. On 17 December 2001 he was certificated under ATCSA on the basis of active support in the United Kingdom of a proscribed terrorist group (GSPC) and of the objectives of Osama bin Laden and Al Qaeda. SIAC found the GSPC to be an international terrorist group active in pursuit of both a national agenda, including fighting the Algerian regime and the Zouabri-led GIA, and a wider anti-Western agenda. It rejected the suggestion that its attention was confined to Algeria or that it could be regarded as not part of the Al Qaeda–linked threat because it did not target civilians. There was no evidence at all to support the proposition that GSPC terrorism excluded any civilian targets, or that attacks on non–civilian targets in the West are excluded from the scope of the emergency. There was evidence, particularly in closed session, about GSPC-linked civilian attacks outside Algeria, in France and Niger. The GSPC was also linked to Al Qaeda through training, and funding and in other ways. Its being on the UN list added to the weight of evidence as to those links. Like the GIA, the GSPC was controlled or influenced by people outside the United Kingdom. In contrast, however, while the GIA was a functioning terrorist organization, it had no current ‘organizational level’ links with Al Qaeda. Posing no threat to Western interests outside Algeria; it was not truly part of the Al Qaeda-linked emergency. Its significance in the story was as the precursor to the GSPC, or as the original terrorist group supported by those said now to be significantly connected to other looser networks, and in that different way linked to Al Qaeda. More specifically the case against A was support of the GSPC through his involvement in credit card fraud, its main source of income in the United Kingdom. He had also been heavily involved in the procurement of telecommunications equipment, giving assistance to a terrorist called Abu Doha, who was arrested at Heathrow Airport as he tried to flee the United Kingdom. Abu Doha headed or inspired ‘the Abu Doha Group’. SIAC considered there to be ample evidence that this group fell within the Act, had links to Al Qaeda and was thus a very important part of the emergency. Not a group with an exclusive membership, its members or supporters or some of them may form part of other networks or groups, as well. It was the paradigm group, loosely co-ordinated but overlapping with other groups or cells of North African, principally Algerian, extremists. It may have overlapped with groups centred on Abu Qatada or Beghal. It too was controlled or influenced by people outside the United Kingdom. On these bases, SIAC held that there were reasonable grounds to suspect that A was an international terrorist and a threat to this country’s national security. It dismissed also his outstanding appeals against the Home Secretary’s decisions not to revoke the deportation order and to refuse him indefinite leave to remain in the United Kingdom. On 2 July 2004 and 28 February 2005, SIAC on review held justified the continuing certification. In March 2005 he was made the subject of a control order and in August that year was again detained for purposes of deportation and his appeal against it dismissed in March 2006.

Indeed, were the standard higher than reasonable suspicion, we would have had no doubt that it was established. The appellant was heavily involved, indeed was at the centre in the United Kingdom of terrorist activities associated with Al Qaida. He is a truly dangerous individual and these appeals are dismissed.16

In February 2007, SIAC held that Art. 3 ECHR did not bar deportation to Jordan.

Abu Rideh (also known as Abu Ramsi) was born in Jordan to stateless Palestinian parents. and arrived in the United Kingdom with a Jordanian passport in January 1995. In 1998 he was granted indefinite leave to remain in the United Kingdom as a refugee. On 17 December 2001 the Secretary of State issued a certificate under ATCSA. He saw Abu Rideh as actively supporting (including through fund-raising) various international terrorist groups, including those with links to Osama Bin Laden’s terrorist network. In July 2002, because of mental health problems, he was transferred to Broadmoor from HMP Belmarsh. SIAC upheld his certification, on the basis mainly of closed material. He had told deliberate lies about important matters, and had been a very successful fund-raiser able to get money out to Afghanistan. It was accepted that some of the fund-raising was for charitable purposes. On 2 July 2004, SIAC on review of his case maintained the certificate. On 28 January 2005, in part in view of his mental health, SIAC admitted him to bail, to be reviewed every three months. Balancing the diminished and continuing risks, the effect of the constraints imposed by the bail conditions and the further detention which he would face for a breach, against the effect on him of past and continued detention, SIAC held that his continued detention was disproportionate to the risk in view of other methods of control which could be put in place. He is now subject to a control order.

Ajouaou is from Morocco. In 1988 he was granted indefinite leave to remain on the basis of his marriage to a British citizen, which marriage broke up shortly afterwards. He made two applications for naturalization as a British citizen, in 1990 and 1997. The latter remains to be formally determined. In 2000 he remarried, again to a British citizen, and there is a child of the marriage. On 17 December 2001 the Secretary of State decided to make a deportation order against Ajouaou, and also to certify him under ATCSA s. 25. Ajouaou lodged appeals to SIAC against both decisions. But on 22 December 2001 he left the United Kingdom and has remained in Morocco since that date. The Secretary of State revoked the certificate on 16 January 2003, purportedly with effect from 22 December 2001, the date of Ajouaou’s departure from the United Kingdom because he took the view ‘that he could not properly believe that a person’s “presence in the United Kingdom” was a risk to national security if the person was not present in the United Kingdom’. His case against Ajouaou was that he had links with both the GIA and GSPC and was a close associate of extremists who themselves were linked with Al Qaeda or Bin Laden; he had been involved in preparing or instigating acts of international terrorism by procuring high-tech equipment for the GSPC and/or Islamic extremists in Chechnya; and he had supported one or more extremist factions in Chechnya by his involvement in fraud which facilitated the provision of funds, and the storing and handling of propaganda videos promoting the jihad. He was also a close associate of Abu Doha. The fraud case depended effectively entirely on closed material. SIAC was entirely satisfied that Ajouaou supported or assisted the GIA, the GSPC, and the looser group based around Abu Doha, and at any time Ajouaou is in the United Kingdom his presence here is a risk to national security.

C, in contrast, is an Egyptian who claimed asylum in the United Kingdom in 2000. Despite his false accounts of his earlier movements in his asylum interview and in an interview with the Security Service, he was accorded refugee status in March 2001 and granted indefinite leave to remain. On 18 December 2001 he was certificated because the Home Secretary saw him as an active supporter of the proscribed organization Egyptian Islamic Jihad (EIJ). He had been sentenced in his absence to fifteen years imprisonment by an Egyptian military court for his role in trying to recruit serving Egyptian Army officers for the EIJ and in planning operations on behalf of the EIJ, both in Egypt and abroad. C’s appeal involved consideration of the EIJ, described by the Home Secretary as a proscribed terrorist group, aiming to overthrow the Egyptian Government. It had mounted a number of high profile attacks up to the mid-1990s and had merged in some form or other with Al Qaeda in 2001. Indeed, from the late 1990s its leadership had been closely associated with Osama Bin Laden. For example, in February 1998 Al Zawahiri, its then leader, was the second signatory to the Bin Laden fatwa and he was one of Bin Laden’s closest associates. There were now organizational links, well established between the EIJ and Al Qaeda. The majority of the group was fully merged with it. EIJ members were on Al Qaeda’s ruling council and assisted with terrorist attacks. The EIJ was a good example of a terrorist group which had had originally a national agenda, but which had become a close supporter of the global agenda, which is capable of being pursued alongside or as an inseparable part of a national agenda. C did not give evidence but his two submitted statements were regarded by SIAC as entirely unreliable. SIAC were wholly satisfied that there were reasonable grounds for suspecting that C has a senior leadership role in the EIJ in the United Kingdom, and dismissed his appeal. On first review in July 2004, it upheld continuing certification.

[S]ome of [D’s] relationships, in particular that with Beghal, had a social content. But that was not all. Taken as a whole, the evidence we have seen is sufficient to support the Secretary of State’s case that D’s extensive contacts with those who were involved at various levels in terrorist planning and activity did not arise primarily or solely for social reasons: he had contact with these individuals because he was himself supporting international terrorism in various ways. … his association with the GIA would be formally sufficient to justify the certificate, but would not be ‘within the derogation’. His support of the looser network of North African terrorists is, however, sufficient for both purposes. His appeal against the certificate is dismissed.17

SIAC on review upheld continued certification on 2 July 2004.

E is from Tunisia. He is a failed asylum seeker, nonetheless granted exceptional leave to remain until 2005. The Home Secretary certificated E on 18 December 2001. He considered him to be an active supporter of the Tunisian Fighting Group (TFG), a terrorist organization with close links to Al Qaida, and to have provided direct assistance to a number of active terrorists. E raised an issue as to the very existence of this group. As to that SIAC entertained no doubt: it accepted that the TFG had its origins in the Tunisian Islamic Front (FIT); its ultimate aim was the establishment of an Islamic State in Tunisia; and both it and the FIT had links with Al Qaeda. SIAC were satisfied that E was a member of the TFG and so had links with an international terrorist group, the TFG itself being an international terrorist organization within the meaning of ATCSA. Their reasons rested largely on closed material, but SIAC stated in its open specific judgment that it had been careful only to rely on material which could not have an innocent explanation. The issue relating to evidence having been obtained by torture or other treatment in violation of ECHR Art. 3 first arose in E’s case. SIAC rejected the submission. On 2 July 2004 it upheld continued certification as justified. Although a number of other extremists with whom he worked had been detained there were still many at large and the networks which they operated still existed. There was further material to support the conclusion that, if released, E would have no difficulty in reestablishing his connections to extremist Islamic networks. He was admitted to bail in March 2005 and soon subject to a control order, quashed by Beatson J in February 2007 but reinstated by the Court of Appeal in May 2007.18

F is another Algerian who related that he first arrived in the United Kingdom in 1994 on a false Spanish passport. In 1997 he was charged alongside others with offences contrary to the PTA 1989. He claimed asylum in December 1997. On 3 March 2000 the case against him and his co-defendants was abandoned. On 15 March 2000 he was granted a right of residence until March 2005 on account of his French wife’s status as an EEA resident. On 17 December 2001 the Secretary of State certificated him on grounds that F had provided active support to the proscribed organization GIA. His activities on behalf of international terrorists included the procurement of terrorism-related materials and equipment and the provision of false documentation. F was detained pursuant to the certificate but, having become a French national in 2001, he went to France in March 2002 where he remains. As in Ajouaou and for the same reasons, the Secretary of State revoked the certificate. SIAC acknowledged that there would have been no basis for a certificate in May 1997 (had ATCSA then been in force) when F had been charged with terrorist offences, since, for want of links with Al Qaeda, the GIA and its activities would not have fallen within the scope of the Art. 15 derogation. SIAC was satisfied that F had continued to associate with GSPC affiliates, and had provided false documentation for its members and for the mujahadin in Chechnya. He had been properly certificated.

G is also from Algeria. His claim for asylum on arrival in 1995 was rejected. His marriage to a French national, however, led to a residence permit valid for five years from 2001. ATCSA certification in his case was based on his being an active supporter of the GSPC. SIAC found there to be reasonable suspicion that G was an international terrorist and reasonable belief that his presence in the United Kingdom constituted a risk to national security. It had no doubt that he had been involved in the production of false documentation, had facilitated young Muslims travelling to Afghanistan to train for jihad, had actively assisted terrorists who have links with Al Qaeda, and had actively assisted the GSPC. Because of a severe mental condition, G was released on bail in May 2004 on strict conditions, amounting to house arrest with further controls.19 On 2 July 2004, SIAC upheld his continuing certification. In March 2005 a control order was served on him and in August that year he was again held pending deportation on national security grounds. His appeal against deportation was dismissed by SIAC in February 2007 and his return sanctioned to Algeria.

H is also an Algerian. He supported the FIS, which won the elections in Algeria in 1991, leading to a military coup. Later it was banned. He went to Afghanistan in 1992. He arrived in the United Kingdom in August 1993 and claimed asylum on the ground that as a supporter of FIS he would be persecuted if returned to Algeria. In 2000 he was granted indefinite leave to remain in the United Kingdom as a refugee. The Home Secretary certificated him on 22 April 2002 as an active supporter of the proscribed organisation, GSPC, which has links to Osama Bin Laden’s terrorist network. His activities on behalf of the group included fund-raising and distribution of propaganda. Unlike most of the other appellants, H gave evidence before SIAC and contested the case with some vigour. SIAC found some of his evidence unsatisfactory, not least that relating to certain documents. Relying in part on closed material, SIAC were satisfied that H was an international terrorist and that his detention was proportionate. On review SIAC on 2 July 2004 found justified continuing certification. He has since withdrawn his appeal against deportation and returned to Algeria.

I (who has a number of aliases) is an Algerian citizen, an asylum seeker granted exceptional leave to remain in May 2000 as part of attempts to deal with the asylum backlog. He was given a Home Office travel document. On 22 April 2002 the Home Secretary decided to deport him as a threat to national security and certificate him under ATCSA. The basis for both decisions was the Home Secretary’s view that I was undertaking a range of support activities on behalf of various international terrorist groups including networks associated with Osama Bin Laden, including fund-raising and the maintenance of support activities, such as the provision of safe houses for the Abu Doha group. It was claimed that I had received mujahidin training in Afghanistan in 1998 and during 1999, had expertise in the manufacture of electrical explosives, and was involved in credit card fraud both in London and Leicester. I was an associate of a number of other extreme Islamists many of whom had either been convicted for terrorist offences, were awaiting trial for terrorist offences, had been linked to disrupted terrorist attacks both in the United Kingdom and overseas and/or were themselves detained under the 2001 Act. His association with these individuals was consistent with I himself being part of the networks, still engaged in active terrorist support and planning, which posed the threat giving rise to the public emergency. I had also been brought into the criminal process. Following his arrest on terrorist charges on 17 January 2002 his home in Leicester was searched. The recovered equipment included a credit card reader-writer with 300 credit card numbers stored in it. Other recovered equipment could be used to produce false documentation. The terrorist charges were not pursued, but I was charged on 29 August 2002 with six counts alleging dishonesty of various kinds including conspiracy to defraud. He pleaded guilty to conspiracy to defraud. The Crown submitted that the figure realised was £250,000. The remaining counts were left on the file. I chose not to give evidence to SIAC, contending that its processes were unfair. SIAC found that the closed evidence reinforced the already powerful case against I upon the basis of that material, and the connection with the Abu Doha group. It rejected his appeals.

M’s proved a rather different case. M is Libyan, opposed to the Qaddafi regime there, and a failed asylum seeker. Despite that claim’s failure the Home Secretary accepted that M could not safely be returned to Libya. K’s ATCSA certification on 23 November 2002 (accompanied by a decision to deport on national security grounds and detention) was founded on the assertion of him being a member of a group of mujahidin engaged in active support for various international terrorist groups, including networks associated with Osama Bin Laden. K’s activities on behalf of these networks were said to include the provision of material support. K admitted association with the LIFG, opposing Qaddafi, but argued that group had no Al Qaeda connections. SIAC did not doubt that M was a terrorist, but doubted the claimed Al Qaeda connection. Accordingly it allowed both the appeal against certification and that against deportation. Its right to do so was endorsed by the Court of Appeal (see chapter 8).

P, in contrast, appealed unsuccessfully against certification and a national security deportation decision. P, a failed asylum seeker, is another Algerian national. Criminal charges, some of a terrorist nature, were brought but not proceeded with. Certification and deportation were founded on the view that P was an associate of Algerian extremists engaged in active support (including the supply of false documents) for various international terrorist groups, including nationals associated with Osama Bin Laden. P’s written statement to SIAC was a robust denial of the allegations, but he declined further to participate in an unfair appeal process. There was a connection with the Finsbury Park Mosque and the radical preacher, Abu Hamza. SIAC found P to pose a danger which could not be dealt with by restrictive bail conditions. It rejected him falling within ATCSA section 21(2)(a) as involved in the preparation of a terrorist attack or within (b) as a member of the Abu Doha group. It found he fell within (c), a link with a terrorist group in the sense that he supported or assisted it. Both in July 2004 and February 2005, SIAC on first and second review respectively maintained the certification. Between first and second review, in view of a deteriorating mental condition, P was detained in Broadmoor under the Mental Health Act 1983. He later withdrew his appeal against deportation and returned to Algeria.

S (another known under many names) is an Algerian citizen, another failed asylum seeker, earlier jailed for passport fraud. Terrorist criminal charges were brought, but not proceeded with. On release from custody in respect of those charges in May 2001, he was detained pending resolution of an extradition request from France. Certification and deportation decisions were made on 7 August 2003, but detention remained founded on the extradition request. The decisions were based on the Home Secretary’s claim that S was a member of a group of mujahidin engaged in a variety of active support for various international terrorist groups, including networks associated with Osama Bin Laden. His activities on behalf of Islamist networks were said to include: involvement in criminal activities by the Fateh Kamel network in Canada to raise funds assessed to be for extreme Islamist causes; training at terrorist training camps which are associated with Bin Laden; planning to take part in Ahmed Ressam’s terrorist cell which intended to carry out an attack on Los Angeles Airport over the Millenium, only being prevented from joining the cell when arrested at Heathrow Airport in November 1998 whilst attempting to board a flight for Toronto on a false Belgian passport; provision of support for a terrorist cell linked to the Abu Doha group which intended to attack the Christmas market in Strasbourg at the end of 2000; and the supply of false documents. S’s written statement to SIAC denied all this, criticized the extradition proceedings, and raised concerns about his mental state. A statement by his solicitor at the SIAC hearing said S would welcome a fair criminal trial but would not participate in the unjust SIAC procedures. SIAC were satisfied upon the basis of the open material alone that there were substantial grounds for believing that S was a senior and trusted figure in the Abu Doha group in the United Kingdom and in other terrorist networks linked to Al Qaeda, and that he played a significant role in their terrorist activities. Considering the entirety of both open and closed material, there could be no real doubt that S was a senior member of the Abu Doha and other terrorist groups linked to Al Qaeda and directly involved in planning terrorist attacks. S was extradited after court proceedings.20

Concerns about the Use of ATCSA Detention

A number of very proper concerns have been raised about ATCSA detention and its decision-making and judicial supervision regimes, since the Bill that became ATCSA was first published. Those concerns, both in terms of human rights and the efficacy in security terms of the regime, have been raised both by scrutiny/review individuals or bodies and by NGOs and other organizations giving evidence to them or in briefing papers for press, MPs and peers. Insofar as these concerns have translated into litigation, they are examined in depth in chapter 9.

A pervading concern has been the lack of ‘equality of arms’ in the decision-making process, its subordination of due process to security concerns, and the use which might be made of evidence or material obtained through torture, something more fully explored in chapters 8 (challenge mechanisms) and 9 (legal and human rights challenges).21 There was also concern that the powers were both disproportionate to the exigencies of the public emergency and discriminatory on grounds of national origin,22 concerns vindicated by their Lordship’s declaration of incompatibility in A and Others (see chapter 9). Given that the threat came also from British nationals, the Newton Committee was troubled about the efficacy of detention only of foreign nationals. It questioned the security value of allowing those detainees who wished to do so to go to another country, ‘given the risk of exporting terrorism’ and an associated risk that they might return to the United Kingdom undetected by the authorities.23 That only the United Kingdom had derogated from the ECHR was seen by that Committee as puzzling, given that other European ‘countries face considerable threats from terrorists within their borders’.24 It remained concerned that insufficient consideration was being given to enhancing existing surveillance through the imposition of lesser restrictions such as electronic tagging, curfews, daily reporting to a police station, limits on communications and use of financial services.25 The lengthy delays in the appellate and review processes (almost two years in some cases) generated concern because this was equivalent (in real terms) to a significant custodial sentence, with detainees held in high security conditions, without having been proven guilty of any criminal offence.26 The existence and uncertainty about the powers had led to understandable disquiet in the Muslim community.27 While the limited use of detention accorded with Lord Carlile’s view that it was ‘desirable that as few persons as possible should be subject to non-criminal sanctions without a conviction by a criminal court’28 and might thus be welcomed, the Newton Committee rightly warned, citing a United States Supreme Court Justice, that

nothing opens the door to arbitrary action so effectively as to allow … officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected.29

The conditions and unlimited nature of detention, and the adverse effects on physical and mental health of the detainees, were very much the subject of adverse comment and concern. Lord Carlile commented:

HMP Belmarsh is an unattractive and unpleasant place. The detainees I saw there and at Woodhill are held in very high category conditions. Woodhill is a less unpleasant prison, with natural light and space to move around even in the high security setting. As last year, the detainees to whom I spoke in Woodhill appeared more relaxed, a natural consequence of the altogether more benign environment. Last year all complained to me of the fact that they were treated in the same way as men convicted of the most serious crimes, indeed were locked up alongside such men. Some complained then of worse treatment, including the use of solitary confinement, restricted opportunities to contact family, and insensitivity to religious observance. Generally they have the opportunity to fraternise with each other, an opportunity that would not necessarily be permitted in all other countries. However, their position and status is unenviable. All told me of the real and, in my view understandable, difficulty of dealing with incarceration without either trial, conviction or an indication of when if ever it would come to an end. The 2006 closure date for the legislation does not reassure them. Some contrasted their position unfavourably with that of life sentence prisoners, who at least know their tariff and when they will be considered for parole. They have no remission, and no parole.30

In response the Home Office made available conditions comparable to remand prisoners but the Newton Committee recorded that the detainees had refused to use them.31

The Commons/Lords Joint Human Rights Select Committee (JHRC) reported that it had received a number of representations about the impact of indefinite detention on the mental health of detainees.32 There had been cause for serious concern over the mental health of two of the detainees. One had been transferred to Broadmoor and released on bail, effectively to house arrest, because of those concerns. The British Psychological Society had expressed concern that serious harm was being done to the mental well-being of ATCSA detainees, mainly because of the psychological impact of indefinite detention without charge or trial without being informed of the evidence against them, or even being subjected to interrogation or questioning. It was particularly concerned about the impact on vulnerable groups such as the young, those who have previously experienced torture and detention in their country of origins, and those with existing mental health problems or physical or learning disabilities. In addition, the Mental Health Act Commission submitted that, where an ATCSA detainee was transferred to hospital under the Mental Health Act 1983, the review mechanisms of the Mental Health Review Tribunal and SIAC were inadequate in not affording an opportunity to make a fair challenge to decisions over the appropriate level of security provision. The JHRC noted that in its report on its visit to the ATCSA detainees in February 2002, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment found that the indefinite nature of their detention, and the belief that they had no means to contest the broad accusations made against them, were a source of considerable distress to the detainees. Amnesty International considered this had a debilitating effect on the mental and physical health of the detainees.33 It was open to question whether the conditions amounted to inhuman or degrading treatment contrary to Art. 3 ECHR (see chapter 9).

PTA 2005 Control Orders

The Powers and their Rationale

The control order scheme embodied in the PTA 2005 represents the response of Government and Parliament to the House of Lords’ declaration that detention without trial of foreign nationals under ATCSA was not compatible with Convention Rights. It takes on board also Lord Hoffman’s statement that detention without trial of all terrorist suspects was not to be the answer. Indeed Home Secretary Blunkett had much earlier characterized such an extension as disproportionate.34 Instead as Home Secretary Clarke informed the Commons in January 2005,

We intend that [control] orders be capable of general application to any suspected terrorist irrespective of nationality or, for most controls, of the nature of the terrorist activity – whether international or domestic – and that they should enable us to impose conditions constraining the ability of those subject to the orders to engage in terrorist-related activities. Control orders would be used only in serious cases. The controls imposed would be proportionate to the threat that each individual posed. Such orders would be preventive and designed to disrupt those seeking to carry out attacks – whether here or elsewhere – or who are planning or otherwise supporting such activities. They would be designed to address directly two of the Law Lords’ concerns: discrimination and proportionality. …. The Secretary of State would consider whether, on the basis of an intelligence assessment provided by the Security Service, there are reasonable grounds for suspecting that an individual is, or has been, concerned with terrorism. If the answer to that question is yes, and if the Secretary of State considers such action necessary for the purposes of protecting the public from terrorist-related activities, he or she would impose controls on that individual. There would be a range of controls restricting movement and association or other communication with named individuals; the imposition of curfews and/or tagging; and restrictions on access to telecommunications, the internet and other technology. At the top end, control orders would include a requirement to remain at their premises. The controls to be imposed under the new scheme will not include detention in prison, although I intend that breach of a control order should be a criminal offence, triable in the usual way through the criminal courts and punishable by imprisonment.

The intention is that conditions imposed under a control order should be specific and tailored to the individual. The aim is to secure the safety of the State by the minimum measures needed to ensure effective disruption and prevention of terrorist activity.35

However, the Government has submitted, in its intervention in a case before the European Court of Human Rights, that the control order system inevitably can only provide a partial protection to the public.36

The main provisions of the PTA 2005 entered into force on royal assent on 11 March 2005. ATCSA 2001 sections 21–32 (detention without trial) were repealed with effect from 14 March 2005, without prejudice to ongoing appeals or claims for compensation.37 Instead the PTA 2005 established a regime of ‘non–derogating’ and ‘derogating’ control orders. The distinction between them reflects the fact that ECHR jurisprudence distinguishes between interferences with freedom of movement (guaranteed by Protocol Four ECHR, to which the United Kingdom is not a party)38 and situations where the degree of restriction, moving nearer to the ‘close confinement’ or ‘imprisonment’ end of the spectrum, constitutes a deprivation of liberty and security of person guaranteed by Art. 5 ECHR. That stipulates an exhaustive range of permissible heads of legitimate interference with that crucial freedom.39 Only derogating control orders can impose restrictions amounting to a deprivation of liberty within the meaning of Art. 5. Those imposed by non-derogating orders must fall short of that or be invalid. The line between the two situations and orders – movement/non-derogating control order, on the one hand, and liberty/derogating control orders – is a fine and imprecise one, as the Home Secretary learned to his cost in the High Court and Court of Appeal.

‘Derogating’ control orders, which would enable, for example, ‘house arrest’, have not yet been invoked. They require parliamentary approval of an Art. 15 ECHR designated derogation order under the HRA 1998.40 As yet, the Government has not considered one necessary, but in May 2007 the Home Secretary indicated that the derogation option might be used should the House of Lords uphold restrictive limitations on non-derogating control orders.41

The obligations imposable under either type of control order are those that the Home Secretary or the court (as may be) ‘considers necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity’.42 A non-exhaustive list of obligations includes a prohibition or restriction on possession of certain articles; restrictions on association or communication with others; electronic tagging; curfews; restrictions on movement within the United Kingdom; a requirement that the person remain in a particular place.43 Embodied in a derogating control order, this could amount to detention without trial; as Home Secretary Clarke informed the Commons in moving the Second Reading,

At the top end, the obligations that could be imposed could include a requirement for the individual to remain in a particular place at all times, or some similar measure that amounted to a deprivation of liberty. The place in question will vary with the threat posed by the individual. It could be the individual’s own home, or his or her parents’ home. It could even, in certain circumstances, be in accommodation owned and managed by the Government