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Anti-terrorism control orders: liberty and security still in the balance

Published online by Cambridge University Press:  02 January 2018

Ed Bates
Ed Bates*
Affiliation:
University of Southampton
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Abstract

The compatibility of anti-terrorism control orders with Arts 5 and 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 was the subject of litigation culminating in three House of Lords' judgments in late 2007, and a further case on Art 6 will be argued before a nine-panel House of Lords in March 2009. To date, the litigation has required important modifications to be made to how control orders work, but the regime provided by the Prevention of Terrorism Act 2005 remains essentially intact. The government therefore claims that control orders strike an appropriate balance between the interests of liberty and security. This paper critiques the role played by the courts in challenging control orders under human rights laws. It argues that it is necessary to incorporate the right to freedom of movement into UK law in order to allow a proper balance between liberty and security to be effected by the courts.

Type
Research Article
Information
Legal Studies , Volume 29 , Issue 1 , March 2009 , pp. 99 - 126
Copyright
Copyright © Society of Legal Scholars 2009

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References

1 See Hiebert, J Parliamentary review of terrorism measures’ (2005) 68 MLR 676.CrossRefGoogle Scholar

2 The PTA provides for: (i) derogating control orders (see, in particular, ss 1 and 4–6) and (ii) non-derogating control orders (see, in particular, ss 1 and 2–3). Only the latter have been used to date and references to ‘control orders’ that follow herein are to non-derogating control orders. A full analysis of the working of the PTA and the control orders scheme is beyond the scope of this paper. See Lord Carlile Reports of the Independent Reviewer Pursuant to Section 14(3) of the Prevention of Terrorism Act 2005 (2006 (First Report), 2007 (Second Report), 2008 (Third Report)); Gearty, C Civil Liberties (Oxford University Press, 2007) at pp 114–121;Google Scholar

3 See A Tomkins ‘Legislating against terror: the Anti-Terrorism, Crime and Security Act 2001’ (2002) PL 205.

4 A v Secretary of State for the Home Department[2004] UKHL 56, [2005] 2 AC 68. See Tomkins, A Readings of a v Secretary of State for the Home Department’ (2005) PL 259.Google Scholar

5 Control orders were part of a ‘twin-track’ approach. For non-nationals who could not be deported on the basis of Chahal v United Kingdom (1996) 23 EHRR 413 (upheld in Saadi v Italy (Application No 37201/06) (2008) 46 EHRR 179), the government proposed negotiating ‘Memoranda of Understandings’ with the relevant countries. On the legal obstacles to this see AS & DD (Libya) v Secretary of State for the Home Department & Another [2008] EWCA Civ 289.

6 See Lord Carlile Third Report, above n 2, para 11 (and Annex 1).

7 Tony McNulty (Minister for Security, Counter-Terrorism, Crime and Policing), HC Deb, vol 479, col 136WS, 15 September 2008.

8 PTA, s 9.

9 See PTA, s 1(9).

10 See the extremely critical comments in Joint Committee on Human Rights (JCHR) Counter-Terrorism Policy and Human Rights (Ninth Report): Annual Renewal of Control Orders Legislation 2008 Tenth Report of Session 2007–08, HL 57/HC 356 (JCHR Third Report on Control Order Renewal) at paras 19–34.

11 Lord Carlile Third Report, above n 2, para 76. See also his First Report (para 61) and Second Report (para 7).

12 See, amongst others, JCHR Third Report on Control Order Renewal, above n 10; JCHR Counter-Terrorism Policy and Human Rights: Draft Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2006 Twelfth Report of Session 2005–06, HL 122/HC 915 (JCHR First Report on Control Order Renewal); Counter-Terrorism Policy and Human Rights: Draft Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2007 Eighth Report of Session 2006–07, HL 60/HC 365 (JCHR Second Report on Control Order Renewal).

13 Secretary of State for the Home Department v JJ [2007] UKHL 45, [2008] AC 385 (JJ); Secretary of State for the Home Department v MB and AF [2007] UKHL 46, [2008] AC 440 (MB and AF); Secretary of State for the Home Department v E [2007] UKHL 47, [2008] AC 499 (E). See K Ewing and J-C Tham ‘The continuing futility of the Human Rights Act’ [2008] PL 668.

14 See John Reid (Home Secretary), HC Deb, vol 460, cols 1431–1432, 24 May 2007.

15 Ibid, col 1428.

16 Tony McNulty (Minister for Security, Counter-Terrorism, Crime and Policing), HC Deb, vol 477, col 39WS, 12 December 2007 and Tony McNulty, Letter to The Guardian, 24 December 2007.

17 PTA, s 1(4).

18 Ibid, s 1(2)(a).

19 See n 13 above. See Feldman, D Controlling control orders: Article 5 Echr and the Prevention of Terrorism Act 2005 2008] 67 CLJ 4.Google Scholar

20 See JCHR First Report on Control Order Renewal, above n 12, paras 36–42, plus Second and Third Reports, paras 21–29 and 35–49, respectively. See also Secretary of State for the Home Department v JJ and Others [2006] EWHC 1623 (Admin) and Secretary of State for the Home Department v JJ and Others [2006] EWCA Civ 1141, [2007] QB 446. In Secretary of State for the Home Department v E and S [2007] EWCA Civ 459 the Court of Appeal disagreed with the High Court's conclusion (Secretary of State for the Home Department v E [2007] EWHC 233 (Admin)) that a control order with a 12-hour curfew period was unlawful. This threw into doubt another decision regarding a 14-hour curfew period: Secretary of State for the Home Department v AF [2007] EWHC 651 (Admin), which was appealed to the House of Lords.

21 Accordingly, the Law Lords ruled, by a majority, that the control order had to be quashed, since the Secretary of State had had no power to make it.

22 See n 13 above. MB did not appeal on Art 5 issues.

23 See n 13 above.

24 MB and AF, above n 13, at [9].

25 Mancini v Italy (Application No 44955/98) judgment of 12 December 2001.

26 Storck v Germany (2005) 43 EHRR 96 at para 74 (not cited by the Law Lords).

27 The cases include Ciancimino v Italy (1991) 70 DR 103; Raimondo v Italy (1994) 18 EHRR 237; Labita v Italy (Application No 26772/95) judgment of 6 April 2000; and Trijonis v Lithuania (Application No 2333/02) admissibility decision of 17 March 2005.

28 Guzzardi v Italy (1981) 3 EHRR 333.

29 Cf Lord Bingham (JJ, above n 13) at [13].

30 Ibid, at [95].

31 Ibid, at [93].

32 Ibid.

33 Ibid, at [92].

34 Ibid, at [95].

35 Ibid, at [95]. The European Commission of Human Rights had been unanimous in concluding that Art 5(1) applied. Amongst other things it noted the ‘almost continuous supervision’, that Guzzardi was ‘not in a position to make social contacts...[and could not] take part in normal social life’, plus the regime endured for ‘a long period’: Guzzardi v Italy, Series B Vol 35 (1979–1980) at paras 96–98.

36 Ibid. See Lords Bingham in JJ, above n 13, at [16] and Brown at [96], and Baroness Hale at [58].

37 Lord Hoffmann at [44]; see also at [45].

38 See the dissenting opinions of Judge Fitzmaurice and Judge Matscher in Guzzardi.

39 Lord Bingham in E, above n 13, at [11] and Baroness Hale at [25]. See also Lord Brown in JJ, above n 13, at [108].

40 Lord Bingham at [18].

41 Baroness Hale at [63]; see also at [60] plus in E, above n 13, at [25].

42 Ibid.

43 Ibid, at [24].

44 See The Government Reply to the Tenth Report from the Joint Committee on Human Rights Cm 7368, p 4.

45 See JCHR Third Report on Control Order Renewal, above n 10, para 39. A new control order with a ‘16 hour’ curfew was also imposed in late 2007.

46 At [16] (Lord Bingham). Cf Baroness Hale at [63] and Lord Carswell at [84]. See also Lord Brown at [108].

47 At [105]; see also at [108].

48 At [106].

49 Ibid.

50 Secretary of State for the Home Department v AE [2008] EWHC 585 (Admin) at [80]. The court nevertheless insisted that a 16-hour curfew could not just be automatically imposed on every controlee; it would need to be ‘necessary’ on the facts of each case: ibid, at [84].

51 Secretary of State for the Home Department v AP [2008] EWHC 2001 (Admin). The order imposed a 16-hour curfew plus a prohibition on pre-arranged meetings, except with near relatives, and it required that the controlee live outside London (where he and other family members lived). Keith J was of the view that Art 5 was engaged: there was ‘the equivalent of internal exile’ as AP was ‘so socially isolated during the relatively few hours in the day when he is not under house arrest’ and was unable ‘to make even social arrangements because pre-arranged meetings (otherwise than with his mother and his brother) [were] prohibited...’: at [97]. Had AP remained in London, ‘so that he could still see and be visited by his mother, his brother and his sister's three children’, there would have been no deprivation of liberty: at [97]. See also Secretary of State for the Home Department v AH [2008] EWHC 1018 (Admin), concerning a control order with a 14-hour curfew and with other restrictions the cumulative effect of which was to impose a ‘high degree of social isolation’: at [23]. Mitting J described this as ‘very close to the [Art 5] borderline and well into the realm of “pure opinion”’: at [22].

52 Ibid.

53 Ibid (Mitting J at [22]; Keith J at [97]).

54 At [25]. Cf Lord Brown in JJ, above n 13, at [108].

55 Guzzardi, above n 28, at para 94.

56 See Raimondo and Labita (both above n 27) (mafia suspects subjected to 10-hour curfews living at home (inviolable) and subject to reporting restrictions). Also see Trijonis, above n 27 (12-hour curfew for weekdays and all weekend; Art 5 not engaged as applicant was ‘allowed to spend time at work as well as at home’ during the (almost) 16-month period applicable). For further analysis see Secretary of State for the Home Department v E [2007] EWHC 233 (Admin) at [208]–[209] and JJ and Others v Secretary of State for the Home Department [2006] EWHC 1623 (Admin) at [77].

57 Cf Lord Carswell at [83].

58 See text accompanying nn 34 and 35 above. Sullivan J had taken this into account: [2006] EWHC 1623 (Admin) at [48].

59 See Justice Written Submission on behalf of Justice (intervening in MB and AF before the House of Lords), available at http://www.justice.org.uk, at A22.

60 At [37].

61 At [36].

62 At [44].

63 At [107]. Cf Sullivan J, [2006] EWHC 1623 (Admin), at [43].

64 See PTA, s 4.

65 See JCHR Third Report on Control Order Renewal, above n 10, paras 47–48 proposing that Parliament stipulate a 12-hour maximum curfew.

66 See Government Reply, above n 44, p 4. There have been at least seven control order absconders. See also the criticism of control orders as ‘not even the second best option for tackling terrorist suspects’ by John Reid (Home Secretary), above n 14, col 1428.

67 PTA, s 2(1).

68 Proposals for a ‘balance of probabilities’ standard were rejected. The Security Service advised that under this standard ‘we will not be able to secure orders on some of the people about whom it has significant concerns’: Hazel Blears, HC Deb, vol 431, col 1798, 10 March 2005.

69 PTA, s 15(1) incorporates the comprehensive definition of ‘terrorism’ in s 1(1)–(4) of the Terrorism Act 2000, as to very broad scope of ‘terrorism-related activity’: see PTA, s 1(9).

70 See ibid, s 2.

71 On this see the Court of Appeal judgment in MB [2006] EWCA Civ 1140, [2007] QB 415.

72 PTA, Schedule, para 2(b); Civil Procedure (Amendment No 2) Rules 2005 (SI 2005/656), r 76.2.

73 See ibid, r 76.4.

74 See Lord Bingham in MB and AF, above n 13, at [26]–[27].

75 At [38].

76 See J Ip ‘The rise of the special advocate’ [2008] PL 717.

77 From many sources see Constitutional Affairs Committee The Operation of the Special Immigration Appeals Commission (SIAC) and the Use of Special Advocates Session 2004–05, HC 323 and several JCHR Reports including JCHR First Report on Control Order Renewal, above n 12, paras 69–76 and JCHR Second Report on Control Order Renewal, above n 12, paras 30–38.

78 See, eg, the evidence of Nicholas Blake QC: ‘Minutes of Evidence (12 March 2007)’ in JCHR Counter-Terrorism Policy and Human Rights: 28 Days, Intercept and Post-Charge Questioning Nineteenth Report of Session 2006–07, HL 157/HC 790, Q40 and Q44.

79 Ibid, para 210.

80 See JCHR First Report on Control Order Renewal, above n 12, paras 50–52 and European Commissioner for Human Rights Report by Mr Alvaro Gil-Robles, Commissioner for Human Rights, on his visit to the United Kingdom CommDH (2005) 6, 8 June 2005, para 20. See also submissions by Justice, above n 59.

81 Engel v the Netherlands (1979–1980) 1 EHRR 647.

82 A, X and Y and Others v Secretary of State [2004] QB 335 (Belmarsh at the Court of Appeal).

83 At [13]–[24]. Lords Hoffmann at [48]–[49], Carswell [79], Brown [90] and Baroness Hale [56] expressed their agreement.

84 At [21].

85 Engel, above n 81.

86 See the analysis at [23].

87 Ibid.

88 Lord Bingham cited Ashworth, A Social control and “anti-social behaviour”: the subversion of human rights?’ (2004) 120 LQR 263.Google Scholar

89 At [24].

90 See Lord Bingham's reasoning at [24].

91 Charles Clarke (Home Secretary), HC Deb, vol 430, col 306, 26 January 2005. Nonetheless, the earlier derogation under Art 15(1) of the ECHR was withdrawn.

92 Ibid. This was before the London bombings of July 2005.

93 Lord Falconer, HL Deb, vol 670, col 123, 1 March 2005.

94 A derogation could only lawfully be made if the conditions set out in Art 15(1) of the ECHR were met. See also Human Rights Act 1998, s 14.

95 The authorities are dated, however: see Lawless v Ireland (No 3) (1979–1980) 1 EHRR 15 (the court's first ever case) and Ireland v United Kingdom Com Rep Series B No 32-I pp 114–117, although the court did not decide the issue (Ireland v United Kingdom (1980) 2 EHRR 25).

96 Guzzardi, above n 28, para 108. The Commission agreed, above n 35, p 42, para 107.

97 See Raimondo, above n 27, para 43. See also Arcuri v Italy (Application No 52024/99) admissibility decision of 7 July 2001.

98 See n 95 above.

99 Lord Bingham in E, above n 13, at [14]. PTA, s 8, concerning potential criminal prosecution of controlees, was in issue.

100 Ibid.

101 Ibid, at [18].

102 Ibid, at [21]; see also Baroness Hale at [28].

103 See n 20 above.

104 Lord Bingham at [34]–[35], [41]–[43]; Baroness Hale at [65]–[66]; Lord Carswell at [85]; and Lord Brown at [90]–[91].

105 At [43].

106 At [91].

107 A and Others v Secretary of State for the Home Department (No 2) [2005] UKHL 71, [2006] 2 AC 221.

108 At [91].

109 At [35].

110 In order to avoid a breach of Art 6(1) when the controlee needed to know more information for Art 6(1) compliance, the High Court judge should give the Secretary of State a choice: either disclose more information (possibly in redacted or ‘gisted’ form) until Art 6(1) was satisfied, or withdraw the information so that the case proceeded without reliance on it. The latter option could well affect the court's assessment, under s 2(1)(a), of ‘reasonable suspicion’; see Baroness Hale at [72]. So the failure to provide more information risked the Secretary of State failing to obtain a control order.

111 Ibid, at [66]. Baroness Hale claimed that a declaration of incompatibility would have amounted to ‘[i]nviting a derogation in order to cater for the minority of cases’: at [73]. Lord Bingham was less sure on the appropriate HRA remedy (see Baroness Hale's comments at [74] and Lord Bingham at [35]) hinting that the better course was a declaration of incompatibility (at [44]).

112 Ibid, at [66] and [72].

113 Ibid, at [74] and [70].

114 Ibid, at [68].

115 Lord Brown at [90].

116 In accordance with s 3 of the HRA, PTA, Sch 1, para 4(3)(d) ‘should be read and given effect “except where to do so would be incompatible with the right of the controlled person to a fair trial”’: per Baroness Hale at [72]. See also Lord Carswell at [84].

117 Baroness Hale at [76].

118 See Lord Carlile Third Report, above n 2, para 61.

119 For the High Court authorities see Secretary of State for the Home Department v AE [2008] EWHC 132 (Admin); Secretary of State for the Home Department v AN [2008] EWHC 372; Secretary of State for the Home Department v AF [2008] EWHC 453 (Admin); Secretary of State for the Home Department v AE (Rev 1) [2008] EWHC 585 (Admin); Secretary of State for the Home Department v AF [2008] EWHC 689 (Admin), [2008] 4 All ER 340 and Secretary of State for the Home Department v AH [2008] EWHC 1018 (Admin).

120 Secretary of State for the Home Department v AF and Others [2008] EWCA Civ 1148.

121 In AN, above n 119, Mitting J read MB and AF such that, ‘unless, at a minimum, the special advocates are able to challenge the Secretary of State's grounds for suspicion on the basis of instructions from the controlled person which directly address their essential features, the controlled person will not receive the fair hearing to which he is entitled’: at [9]. AN did not know the ‘gist of significant grounds of suspicion raised against him’: at [10]. In a closed judgment Mitting J indicated what needed to be disclosed for Art 6(1) compliance, but in the open judgment ‘disquiet’ was expressed at this. Intriguingly he added: ‘the factors which require further disclosure in this case are likely to arise in many others, with the result that the non-derogating control order procedure may be rendered nugatory in a significant number of cases in which the grounds for suspecting that a controlled person has been involved in terrorism related activities may otherwise be adjudged reasonable’: ibid.

122 At [64](ii).

123 At [64](vi).

124 At [64](iv).

125 At [105].

126 At [118]. On the impact that control orders may have on the individual concerned see Ewing and Tham, above n 13, pp 674–678.

127 Sedley at [119].

128 Cf the ‘warning’ presented by Mitting J in AN; see above n 121.

129 Lord Bingham at [41]; Baroness Hale at [66], [67], [73] and [76]; and Lord Brown at [90]. Cf Chahal v United Kingdom, above n 5, para 131.

130 Lord Bingham at [41] and Lord Brown at [90]. Cf Tinnelly & Sons Ltd and McElduff and Others v United Kingdom (1998) 27 EHRR 249 at para 72.

131 See Re Bullivant (AG) [2007] EWHC 2938 (Admin) (Collins J setting out the approach the High Court should take to Art 6(1)).

132 Cf the comments made by Collins J, ibid at [6].

133 Baroness Hale's judgment was explicit on this point. The ‘basic requirement’ of a fair trial was that one ‘know[s] the case against one’ and has ‘an opportunity of meeting it’. As she put it, ‘[t]he material which is crucial to demonstrating the reasonable basis of the Secretary of State's suspicions or fears [must] be disclosed in [a] way which will enable the controlled person to give such answer as he may have’: Baroness Hale at [58]. See also Lord Bingham at [30].

134 See text accompanying nn 105 and n 106.

135 Lord Brown at [90]; Lord Bingham at [24].

136 At [65].

137 See Baroness Hale at [62].

138 See Chahal v UK, above n 5, and Ip, above n 76.

139 Cf text accompanying n 129 above.

140 The Strasbourg Court has never used such expressions in any of its Art 6(1) case-law.

141 See Edwards and Lewis v UK (2005) 40 EHRR 593 (this concerned the determination of a criminal charge). Furthermore, cases involving anonymous witness statements (where, therefore, the gist of the case is disclosed) will only be compatible with Art 6 if the conviction is not based decisively on the anonymous statements; see Doorson v the Netherlands (1996) 22 EHRR 330.

142 Amongst many authorities see Kress v France (Application No 39594/98) judgment of 7 June 2001, para 72 GC.

143 AB v Slovakia (Application No 41784/98) judgment of 4 March 2003, para 54 (emphasis added).

144 Ibid, para 56 (emphasis added), citing Artico v Italy (1981) 3 EHRR 1, para 35.

145 Ibid, para 55.

146 See nn 77–78 above.

147 See above n 4; Lord Scott at [155].

148 Ibid.

149 Feldman, D Proportionality and discrimination in ant-terrorism legislation 2005 CLJ 271 at 273.CrossRefGoogle Scholar

150 See, eg, Turpin, C and Tomkins, A British Government and the Constitution (Cambridge University Press, 2007) at p 771.CrossRefGoogle Scholar See also Ewing and Tham, above n 13.

151 See Lewis, J The European ceiling on human rights’ (2007) PL 720 Google Scholar, plus Ewing and Tham, above n 13, at 685 and 690.

152 See n 95 above.

153 Ewing, K The futility of the Human Rights Act – a long footnote’ (2005) 37 Bracton Law Journal 41 at p 44.Google Scholar

154 Baroness Hale in Belmarsh, above n 4, at [223]. Cf her comments in E, above n 13 (at [26]), on the importance of prosecution.

155 See also Lord Hoffmann in Belmarsh (last lines of [87]), and Lord Scott (opening lines of [155]).

156 Government Reply, above n 44, p 1.

157 On the importance of preventive steps, see JCHR Counter-Terrorism Policy and Human Rights: Prosecution and Pre-Charge Detention Twenty-Fourth Report of Session 2005–06, HL 240/HC 1576, paras 6–12. On the nature of the terrorist threat see Home Affairs Committee Terrorism Detention Powers Fourth Report of Session 2005–06, HC 910-I, para 44 and Foreign Affairs Committee Foreign Policy Aspects of the War against Terrorism Fourth Report of Session 2005–06, HC 573, paras 7–15.

158 Available at http://www.coe.int, Principle I.

159 Ibid, Principle III(2). See also Principle II.

160 See Silber J's comment in Secretary of State for the Home Department v AE, above n 119, at [42].

161 It provides, so far as is relevant that: ‘1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence...3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’. Although the UK has not ratified Protocol 4, the equivalent right is protected in near identical terms by Art 12 of the International Covenant on Civil and Political Rights 1966, which the UK has ratified. See General Comment No 27: CCPR/C/21/Rev.1/Add.9 at paras 14–16. The Art 2(1) requirement that an individual be ‘lawfully’ present may have significant implications for the enjoyment of this right by aliens.

162 On Italian experience of preventative administrative action see D Leonardi ‘Italy’ in Gearty, C (ed) European Civil Liberties and the ECHR (Martinus Nijhoff, 1997) at pp 342–344.Google Scholar

163 Labita v Italy, above n 27, para 195.

164 Ibid, para 193.

165 Of course, Arts 8–11 offer a similar formula. In substantive terms, however, they offer limited protection. Unlike freedom of movement as a right, the rights interference occurring under Arts 8–11 tend to be incidental features of a control order, and so are more easily balanced out by the general interest.

166 [2006] EWCA Civ 1140, [2007] QB 415.

167 Ibid, at [58]–[60].

168 Rehman v Secretary of State for the Home Department [2001] UKHL 47, [2003] 1 AC 153.

169 Above n 166, at [64]; ‘considerable deference’ in Collins J's view in Re Bullivant No 2, above n 131, at [13].

170 Ibid, at [65].

171 PTA, s 2(4). The Council of Europe's Commissioner for Human Rights considered 12 months to be the maximum duration a control order should last: above n 80, at [25].

172 PTA, s 2(6)(a) (emphasis added).

173 Would Art 2(3) of Protocol 4 require that a controlee be a direct threat to the host state?

174 Section 10(4). For the weak level of accountability that this (as well as Art 3 or Arts 8–11 of the ECHR under the HRA) provides see Secretary of State for the Home Department v AH, above n 119, at [26]–[27].

175 On the Home Office Control Order Review Group, which meets quarterly, see Lord Carlile Third Report, above n 2, paras 46–47, and his concerns expressed at para 48.

176 Government Reply, above n 44, p 5.

177 Lord Carlile Third Report, above n 2, para 48.

178 Gearty, above n 2, p 119. See also Feldman, D Human rights, terrorism and risk: the roles of politicians and judges’ (2006) PL 364 at 379.Google Scholar

179 Figures accurate as of February 2008.

180 JCHR Third Report on Control Order Renewal, above n 10, para 65. See also Lord Carlile Third Report, above n 2, para 74.

181 JCHR Third Report on Control Order Renewal, ibid, para 85.

182 See above n 27. On the application of the proportionality principle for Art 2(3), see also Luordo v Italy (2005) 41 EHRR 26; Riener v Bulgaria (Application No 46343/99) judgment of 23 May 2006; Földes and Földesné Hajlik v Hungary (Application No 41463/02) judgment of 31 October 2006; and Bartik v Russia (Application No 55565/00) judgment of 21 December 2006.

183 For 3 years the applicant had to stay in his own house under a 10-hour curfew (exceptional circumstances permitting). No association with others subject to preventative measures or with criminal records was permitted. Bars and public meetings had to be avoided plus the police had to be informed on leaving home and on Sunday mornings.

184 Labita, above n 27, para 197.

185 Ibid, para 196. The Strasbourg Court has also held that it is prepared to find a violation of the right to freedom of movement on the basis that the restrictions imposed have simply been in place too long. See Rosengren v Romania (Application No 70786/01) judgment of 24 April 2008, para 38; Ivanov v Ukraine (Application No 15007/02) judgment of 7 December 2006; Fedorov and Fedorova v Russia (2006) 43 EHRR 42. In each case the duration of the orders was very long (6–11 years), but the restrictions (mainly on travel) were far less intrusive than certain control orders.

186 Lord Carlile Third Report, above n 2, paras 50–51. See also Walker, above n 2, at 1458.

187 The Government's Response to the Third Report of the Independent Reviewer pursuant to section 14(3) of the Prevention of Terrorism Act 2005 Cm 7367, p 4.

188 Ibid (emphasis added).

189 Figures from the Security Service maintain that approximately 2000 individuals ‘pose a threat to our security’: Jacqui Smith (Home Secretary), Speech to International Conference on Radicalisation and Political Violence, 17 January 2008, available at http://security.homeoffice.gov.uk/.

190 See Government Reply, above n 44.

191 An important example is s 6 of the Terrorism Act 2006, which provides a new offence of preparation of terrorist acts. Obviously new offences cannot apply retroactively to current controlees; see Art 7 of the ECHR.

192 However, this suggests that allowing intercept evidence in court will not significantly reduce the need for control orders; see Privy Council Review of Intercept Evidence Cm 7324, 30 January 2008, para 58.

193 See JCHR Third Report on Control Order Renewal, above n 10.

194 See n 120 above.