Anti Terrorist Legislation
September 7, 2014Posted by on
On 1st September 2014 the Prime Minister argued that there may need to be an enhancing of the Government’s power to exclude individuals from certain areas whilst re-introducing the ability to move subjects without their consent. He announced a series of new measures to assist with combating terrorist threats, declaring that the Government would “introduce new powers to add” to the current system of Terrorism Prevention and Investigation Measures (TPIMs). Specifically, that this would involve expanding them to include “enhanced” exclusion zones and a reintroduction of relocation orders. Looking specifically at the ability to exclude individuals from certain areas, it is difficult to see what new powers the Government requires.
Under the Terrorism Prevention and Investigation Measures Act 2011, the The Secretary of State may impose restrictions on the individual entering a specified area or place,or a place or area of a specified description and may impose any of the additional requirements in respect of a specified area or place or a specified description of an area or place. In terms of excluding individuals from areas, there are already comprehensive powers that can be made use of. However the question of relocating individuals is more complex.
TPIMs were introduced to replace control orders in 2011. An individual can be placed under a TPIM if the intelligence services “reasonably believe” that they are involved in terrorist-related activities. They can also be imposed on foreign nationals that the Government are unable to deport. Once placed under a TPIM an individual is subject to a number of restrictions. Currently TPIMs are time limited, however, the Government can to renew the TPIM for one further 12-month period.
TPIMs only allow subjects to be relocated to a new area if they agree to go, the Government’s aims is to remove the need to gain the subject’s consent. Nevertheless, of the 12 individuals who have been subject to TPIMs, two have managed to abscond and their whereabouts are still unknown. This is a situation that was also evident with control orders; in 2010 it was revealed that a sixth of the individuals subjected to them had absconded. The control orders system allowed for relocation without consent, however, this didn’t make any noticeable difference to the number of individuals who managed to abscond.
Alongside the introduction of TPIMs, a draft bill was drawn up which could be used to implement so- called Enhanced Terrorism Prevention and Investigation Measures (ETPIMS) in “exceptional circumstances”. An ETPIM would require a strengthening of the legal test undertaken before one is implemented. In this case it would move from requiring “reasonable belief” to “balance of probabilities”. Instead of compelling an individual to stay in their residence “overnight between such hours as are specified” the Home Secretary could impose a 16 hour curfew. Individuals may be banned from entering particular areas and association with individuals without the prior approval of the Home Secretary and allow individuals to be relocated, meaning that individuals would be required to reside in any residence the Government specified.
Additionally, Section 26 of the Terrorism Prevention and Investigation Measures Act 2011 allows the Home Secretary to “make a temporary enhanced TPIM order” if it is considered necessary to do so. Under current legislation the measure would expire after 90 days. The Intelligence and Security Committee (ISC) raised concerns that the enhanced bill did not appear to be “practical or workable.”
Despite individuals being held under TPIMs for a number of months or years, there is insufficient evidence that can be used to prosecute them in open criminal proceedings. The CPS would be unable to prosecute any of the 10 individuals who were at that point under TPIMs as “sufficient evidence of their guilt cannot be deployed in an open criminal court.”
Currently the UK is the only country that operates a common law system to have entirely outlawed the use of intercept evidence in court. This makes it very difficult to gather evidence against terror suspects and subsequently have them successfully convicted. The Government has seen control orders and TPIMs as the solution to this problem when, in fact, the reverse is true. Allowing the use of intercept evidence would be part of the solution to the problem of this highly repressive legislation. TPIMs are implemented when there is insufficient evidence to convict or deport an individual. By increasing the amount of evidence that is available it would be easier to prove the innocence or guilt of suspects and the need to rely on TPIMs would be lessened.