Derogating Control Orders

The procedure for imposing orders that do entail a breach of the individual’s Article 5 rights is significantly different.

On an application by the Home Secretary, the High Court holds a preliminary hearing to determine whether to make an order (s 41 (1) PTA). This hearing may take place in the absence of the subject of the order. If an order is made, directions will be made for a full hearing. The Court may make an order if i) there is material which (if not disproved) is capable of being relied on by the Court as establishing that the individual is or has been involved in terrorism related activity and ii) there are reasonable grounds to believe that the imposition of obligations are necessary to protect the public from risk of terrorism. Section 4 (7) PTA sets out the tests to applied by the Court at a full hearing before imposing an order.

Derogating orders have a duration of 6 months and may be renewed. However, any actual derogation that gives legitimacy to each order will only have force for 12 months.

The procedure for applying to modify or appeal against derogating orders is governed by s 7 PTA.

There will be cases where the subject of a Control Order might also be the subject of a criminal investigation or proceedings. Under s 8 PTA the Home Secretary has an obligation to consult with the police before making (or applying for) a Control Order as to whether there is evidence available that could realistically be used for the purposes of a criminal prosecution for a terrorist-related offence. There is no obligation to bring criminal proceedings instead of imposing a Control Order, although if an order is made the police must review the question of bringing a prosecution during the duration of the order itself.

Breach of an obligation contained within a Control Order is a criminal offence triable either way and the maximum sentence is 5 years imprisonment.

The procedures relating to the supervision by the Courts of non-derogating orders have now been considered by the Administrative Court in Re MB. The Home Secretary had made a Control Order against an individual, believing that he intended to travel to Iraq to fight against UK and US forces there. The Court found that the regime for supervision of non-derogating orders (under s 3 PTA) breached the individual’s Article 6 ECHR right to a fair trial. The court dismissed s 3 as providing no more than a “thin veneer” of legality to the review and imposition procedure. The way in which the Court reviewed the lawfulness of the decision under s 3 was also held to be unfair. The Court found that the actual imposition of an order is made by the Executive and that the individual has no opportunity to make representations – and that the Court’s very limited power to review and supervise did not remedy this unfairness. In that case, the order remained in force, but the procedural framework for Control Orders in general has now received forthright judicial criticism.