In the report the Joint Committee on Human Rights says that:
- the overriding priority of public policy in the area of terrorism prevention should be the criminal prosecution of individuals who are suspected of involvement in terrorist activity; and that
- recognition of the difficulties of prosecuting some dangerous individuals does not require acceptance of the need for a new regime which is essentially a watered down version of control orders
The Terrorism Prevention and Investigation Measures Bill (the TPIMs Bill) gives effect to the recommendation of the Government’s Review of Counter Terrorism and Security Powers that the current system of control orders should be repealed and replaced with a system of less restrictive and more focused measures. In March 2011 the current control order regime was renewed to the end of December 2011. The Government wants TPIMs to be available by the time the control orders legislation lapses.
The committee and its predecessor have expressed serious concerns about the human rights compatibility of the control order regime. The TPIMs Bill does modify some aspects of the regime which have previously given rise to concerns, including, for example:
- the threshold for imposing the measures is to be raised from reasonable suspicion to reasonable belief
- the maximum time limit for the measures will be 2 years (unless there is fresh evidence)
- the restrictions imposed will be less severe in a number of respects;
there is to be a renewed emphasis on investigation and prosecution
The committee welcomes these changes.
However, in his report on the Government's review of counter terrorism powers, the former Director of Public Prosecutions, Lord Macdonald of River Glaven, argued that restrictions on the freedoms of terrorist suspects are only justifiable in human rights terms if they are part of a continuing criminal investigation into their activities. The committee shares Lord Macdonald's concerns about TPIMs not going far enough to bring the restrictions back into the domain of criminal due process.
The committee is concerned by a significant fall in convictions for terrorism offences over the past four years. Yet, in the Bill as it currently stands, it is clear that the overriding purpose of its provisions is prevention rather than investigation and prosecution. The committee also notes the importance of intercept evidence and will return to this subject later in the Session.
The committee recommends amendments to the Bill which would give effect to Lord Macdonald's alternative model, bringing TPIMs into the criminal justice process. Amendments proposed by the committee include:
- When imposing TPIMs, the DPP (or relevant prosecuting authority) should be satisfied that a criminal investigation into any individual’s involvement in terrorism-related activity is justified, and will not be impeded by any of the measures imposed
- Provision for judicial supervision in relation to the ongoing criminal investigation
- Further restrictions on some of the measures in the Bill to ensure that they do not impede or discourage evidence gathering with a view to conventional prosecution
- The court's function at the permission stage of imposing TPIMs should determine whether the conditions for imposing them appear to have been met; the review hearing should determine whether those conditions were and continue to be satisfied
- The Secretary of State should be required at the outset to provide the individual who is the subject of the TPIMs notice with sufficient information about the allegations to enable him to give effective instructions in relation to those allegations
- A requirement for annual renewal of the regime, rather than permanency
Dr Hywel Francis, Chair of the Committee, said:
"Prosecuting terrorism suspects for their crimes is not only the most effective way of countering the threat from terrorism, it also ensures that proper legal process is followed.
The TPIMs regime is less severe than the old control orders regime – but it remains an extraordinary departure from the ordinary principles of criminal due process.
We welcome the changes to control orders which make it less likely that they will be used in breach of human rights. However, we think the Government should bring these exceptional measures into the criminal justice system by ensuring that restrictions are only placed on suspects as part of an active criminal investigation.
There must also be an annual opportunity for Parliament to scrutinise and debate the continued need for such exceptional measures, and the way they are working in practice, and to approve their renewal."