Assessing Damage, Urging Action
normal life well nigh impossible. A breach of the terms of the order can in due course
constitute a criminal offence, punishable by imprisonment of several years.
In the United Kingdom, for example, there are two sorts of control order: those
that entail house arrest, and require derogation from the European Convention
on Human Rights as a deprivation of liberty (derogating orders), and a variety of
other restrictions that do not amount to a deprivation of liberty (non-derogating
orders). While the former has not been invoked, the latter has been used in more
than thirty cases.271 Non-derogating orders are issued on a determination by the
Home Secretary that there are “reasonable grounds for suspecting” that the person
concerned has been involved in “terrorism-related activity”. This test is lower than
that of the “balance of probabilities”.272 Once a non-derogating order has been
issued, there are more than twenty-two different restrictions that may be imposed.
Restrictions may limit movement and/or residency; impose long curfews; require
surrendering travel documents or reporting to a police station; impose restrictions
on whom the person may meet or communicate with; place limitations on financial
transactions or on the person’s employment; specify which mosque a person may
attend or whether the individual concerned is allowed to lead group prayers.273
The Panel was informed that a control order can include a range of these restrictions, and in a House of Lords ruling in October 2007,274 a particularly long (eighteen
hour) curfew notice was found to amount to a deprivation of liberty that could
only be justified by a formal derogation from the European Convention. The Panel
received considerable evidence, at the UK Hearing, and in other venues where
control orders were being introduced regarding the real or potential cumulative
effect on an individual of – living somewhere different to where they used to live;
having their residence subject to frequent searches (at any time of the day or night)
by a designated officer, without special authorisation of a court; having their movement restricted for many hours a day; limited to a certain (sometimes extremely
small) area; and severely limited in terms of who can be met.275 Control orders also
271 Statistics valid as of February 2008, Lord Carlile of Berriew Q.C. Third Report of the Independent Reviewer
pursuant to section 14(3) of the Prevention of Terrorism Act 2005 (on the issue of control orders), 18 February,
2008, p. 4.
272 This is the same standard that applied to certification as a suspected terrorist under the now-repealed
Part 4 of the Anti-Terrorism, Crime and Security Act (ATCSA), which authorised indefinite detention of such
persons. Ajouaou and A,B,C and D. v. Secretary of State for the Home Department [2003] UKSIAC 1/2002,
29 October 2003, para. 71.
273 Lord Carlile of Berriew, Q.C, Second report of the independent reviewer pursuant to section 14(3) of the
Prevention of Terrorism Act 2005, 19 February 2007, para. 10.
274 See UK House of Lords, Judgment of 31 October 2007, Secretary of State for the Home Department v. JJ and
others (FC), 2007 UKHL 45.
275 See also oral submission of Lord Carlile of Berriew, Q.C at the EJP United Kingdom Hearing. An overview of
the restrictions in practice placed on individuals can be found in the reports of the independent reviewer
and the severity of the restrictions is reflected in the summaries provided in Annex 3 to the Third Report
of the Independent Reviewer, 18 February 2008, op. cit. More personalised accounts were given in the
written submission to EJP from Peace & Justice, EJP United Kingdom Hearing, where people describe how
they cannot visit libraries or colleges (because of restrictions on internet access); feel constrained to
111
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