Out of Control
Control orders are presently used in respect of terrorist suspects where there is insufficient admissible proof for criminal proceedings. These orders can restrict the movements and travel of the persons who are subjected to them. They can also control who they can see. The use nature and extent of such orders has always been controversial. Whilst it is true that the terrorist threat is real and pressing, and also that inevitably people may be known to be involved in terrorist activity when it is impossible to produce evidence sufficient to ensure a criminal conviction (the witnesses may be abroad, they may be in fear of their lives, revealing the source of the information may be contrary to national security of a number of grounds) there is always a lingering concern in such cases. This in part depends upon the nature and extent of such orders. The problem of restrictions being imposed is that it could be the thin end of what ends up as a very considerable wedge.
The position is even more problematical if the control orders do not even work. The independent reviewer of terrorism legislation is the respected silk and Liberal peer Lord Carlile of Berriew QC. In his annual report he has expressed concern as to the efficacy and suitability of control orders. This in particular against the background that virtually a quarter of the people subject to control orders have absconded (7 out of 31). That means that in its practical effect so far from being a control order it is a lack of control order. There must also be lurking concern (although we do not know) that the absconding would be undertaken by those who genuinely had something to hide. There is at least a possibility that the control orders do not work in respect of the most serious instances, so that we are visited with the thin end of the wedge I have referred to without a corresponding significant benefit.
Moreover Lord Carlile considers that two-year limits should be put on control orders, and that only in rare cases could they be justified for longer. He has suggested the idea of civil injunctions or antisocial behaviour orders (ASBOs) as an alternative means of dealing with terrorist suspects.
This might work. It will still face difficulties of proof. If the evidence that you have is incapable of being properly set out and formulated because of security or other concerns of the sort highlighted above, then you will not have the evidence to justify obtaining the orders. Having said that, the evidential threshold for obtaining such orders would be a world away from the proof necessary in a criminal trial. Suitable evidential provisions could almost certainly be introduced to deal with any such difficulty.
Although ASBOs were hardly conceived of initially as applicable to these type of circumstances, it is difficult to see why in principle they should not be used. The order and its nature and extent would have to be justified and fixed to meet the particular problem involved. I am not a fan of ASBOs, being sufficiently old-fashioned to think that the starting point for regulating the conduct of citizens should be enforcement of the criminal law (to the appropriate burden and before the appropriate tribunal), applicable to everyone. However ASBOs plainly for the moment are here to stay. Perhaps having regard to the present control order failings, that might be a more constructive way forward from all points of view.