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COPYRIGHT 2007 Stanford Law School
INTRODUCTION: THE DYNAMICS OF COUNTER-TERRORISM POLICIES AND LAWS
I. CONTROL ORDERS A. Background to the Enactment of Control Orders B. The Replacement System 1. Control orders--outline 2. Control orders--contents and issuance 3. Non-derogating control orders 4. Derogating control orders 5. Criminal prosecution 6. Ancillary issues 7. Review by Parliament and the Executive C. Judicial Review II. MAINTAINING CONSTITUTIONALISM IN THE CONTROL ORDER REGIME CONCLUSION
INTRODUCTION:
THE DYNAMICS OF COUNTER-TERRORISM POLICIES AND LAWS
More than five years since the cataclysmic events of September 11, 2001, two dynamics have affected patterns of terrorism and counter-terrorism. The first was identified from the outset and relates to the growing emphasis upon anticipatory risk. The second is the increasing threat of "neighbor" terrorism.
The anticipatory risk of mass terrorism casualties or even the nightmare of the use of weapons of mass destruction conduces towards interventions which are preemptive or preventative. The threat of terrorism to life and liberty cannot be addressed simply by ex post facto rectification for the sake of justice. (1) An inevitable consequence of this risk dynamic will be an intelligence-led approach, that is, governmental net-casting for information and for potential assailants on a wide and prescient scale. (2) An intelligence-led approach might be said to reflect "a new and urgent emphasis upon the need for security, the containment of danger, the identification and management of any kind of risk." (3) The broad sweep of such an approach recognizes the pervasive nature of terrorism whilst at the same time seeking to refine intelligence data so as to narrow the range of risks that security agencies should address at any one time. This allows the government to target its resources. The careful buildup and analysis of data also signals the government's assessment of the sophisticated, secretive, and dedicated nature of terrorist groups, features that distinguish them from "ordinary decent criminals." (4)
The contrary argument is that the risk paradigm is less persuasive in the realms of terrorism policing; there, the orientation is said to be towards law and order, and measures are often taken or continued without proof of practical efficacy. An example of the latter concerns the policy and legislative accentuation of measures against the financing of terrorism, which impose pervasive burdens upon the financial sectors and their customers but have hampered few terrorists. (5) It is suggested in response that though policies are indeed often exaggerated in scope and intensity in response to the vivid threat of terrorism, (6) and though knowledge through intelligence is always less than perfect, the assessment of risk through an intelligence-led approach is a strong basis for action in the terrorism field and increasingly so. In fact, the intelligence cycle, including the discernment of and reaction to risk, provides a "crucial" (7) key to anti-terrorism strategy and laws, and it is a feature that has been recurrent in counter-terrorism.
The second dynamic, termed here "neighbor" terrorism, reflects the gradual recognition after 9/11 that dangers are presented not only by al Qa'ida and its ilk, as often represented by the convenient figure of Osama bin Laden, the archetypal outlaw who is definitely not one of "us" (nor even one of "them," if "them" is taken to mean the mainstreams of his own nationality or his own religion). (8) That convenient scapegoat has ceased to be the center-stage villain, now driven so far into the shadows by the invasion of Afghanistan in 2001 that even the CIA has reportedly closed its specialist search unit. (9) More ominously, in the contemporary phase of terrorism, the most threatening figures are our neighbors operating from within. Thus, the London bombings of July 7, 2005 were carried out by three second-generation British citizens, Hasib Hussein, Mohammad Sidique Khan, and Shehzad Tanweer, and one long-term British resident, Jermaine Lindsay. (10) These were Yorkshire folk whose mundane backgrounds set at naught many of the tactics of the security forces hunting for cells of crazed foreigners. The attempted bombings in London on July 21, 2005 likewise allegedly involved perpetrators with a mundane profile. (11) The 2005 and 2006 "neighbor" bombers were not an isolated aberration, and it is known that British citizens have engaged in terrorism not only on their own soil but on foreign soil. Examples include Richard Reid (convicted of attempting to set off a shoe bomb on a transatlantic flight in 2001), (12) Ahmad Omar Saeed Sheikh (sentenced to death in Hyderabad in 2002 for the murder of American journalist Daniel Pearl), (13) suicide bombings in Tel Aviv in May 2003 by Asif Mohammed Hanif and Omar Khan Sharif, (14) and the dozen or so British citizens or residents detained in Afghanistan or Guantanamo Bay. (15)
The same trend is evident in the United States, perhaps in part as a consequence of the detention and deportation of noncitizens after 9/11 (16) and the tighter checks on visitors thereafter. (17) Examples include the arrests in March 2006 in Atlanta of a U.S. citizen and a U.S. resident for providing material support to a terrorist group by obtaining information on targets. (18) In June 2006, members of what was described as "a homegrown terrorist cell" were arrested in Liberty City, near Miami, for allegedly plotting attacks on FBI buildings in Miami and on the Sears Tower in Chicago. (19) The members of the cell were all settled citizens or long-term residents. (20) These examples add to the existing list of cases involving U.S. citizens, such as Jose Padilla, (21) Yaser Hamdi (22) (who was allowed to travel to Saudi Arabia on the condition that he give up his U.S. citizenship in 2004), (23) and Ali Saleh Kahlah al-Marri. (24) There is also the Lackawanna case, in which six U.S. citizens of Yemeni origin pleaded guilty in Buffalo, New York to providing material support and resources to a terrorist group by training at a camp associated with al Qa'ida in Afghanistan. (25) Several other U.S. citizens have been charged in connection with attempts to enter Afghanistan. (26) Perplexingly for those who maintain the paradigm image of the terrorist who is an alien in terms of nationality, race, and religion, not all of these "neighbor terrorists" even fit the description of "Arab" or Middle Eastern, a prime example being John Walker Lindh who was convicted for joining the Taliban in Afghanistan. (27)
"Know the enemy and know yourself' may still be the operative ideal, (28) but with globalized population movements and ideologies, discerning friend from foe has become much more troublesome. Late modernity's boons of global movement of persons and ideas and networked communications (29) are, in line with the process of "reflexive modernization," (30) equally adaptable to terrorist purposes by those who adhere to al Qa'ida's tenets. No longer can it be claimed that the enemy is "in a specially intense way, existentially something different and alien" or, as a fellow citizen, that he "intends to negate his opponent's way of life and therefore must be repulsed or fought in order to preserve one's own form of existence." (31) Unsure of the target of counter-terrorism, the tendency must again be towards net-widening and thereby treating the whole population as a risk.
Turning to appropriate legal responses, two main approaches to counter-terrorism are available. First, there is the strategy of criminalization: implementing legal measures that seek criminal justice outcomes. For example, the government could rely on extra policing powers to gather evidence, special processes to assist in trials, special offences, and enhanced penalties. (32) The second tactic is to prevent, disrupt, and counter, thereby engaging in "control." This is essentially executive-based risk management. Measures such as proscription, detention without trial, control orders, port controls, data-mining, and the seizure of assets evidently fall into this category. In addition, several powers such as arrest, interrogation, and stop and search could legitimately be included in either strategy. It also may prove difficult to disentangle intelligence-gathering from forensic interrogation. (33) But their tactical use tends towards the control strategy by mainly working through intelligence-gathering and disruption.
In the "control" mode, the objective relates to "future law enforcement ... not necessarily directed to solving a crime that has already taken place." (34) This purpose is tied to the idea that the threat of terrorism demands an early police intervention at the preparatory stages of a terrorist act to detect (35) or disrupt that plot. It is too dangerous to allow the terrorists to move towards their objectives. Thus, "control" tends to predominate and reflects more general trends in the risk society (36) such as risk aversion, the precautionary principle, and contingency planning. (37) Control is also the foremost strategy in the overarching counter-terrorism strategy, "CONTEST," (38) set by the U.K. government. "Prevention" (such as deterrence and ideological responses), "preparation" (through, for example, risk identification) and "protection" (such as through contingency planning) are set alongside "pursuit" as strategic aims. (39) Even "pursuit," which includes prosecution, is invoked in the context of "disrupting terrorist activity." (40) No great store is placed in the prospect of punishment acting as a deterrent, (41) whether directly through the criminal justice system or indirectly through the impact of control measures. Because the jihadists are seen as harboring fanatical and non-negotiable objectives, punishment seems unlikely to deter them effectively. (42)
Both criminalization and control are controversial in their design and in their implementation. For example, the seemingly more straightforward approach of criminalization spawns the danger that special laws will undermine the legitimacy of the criminal justice system and generate "political" offenders. (43) This consequentialist argument probably reached its apogee in Northern Ireland with the hunger-striking prisoners of 1981. (44) Equally, the techniques of control are widely viewed as corrosive of constitutionalism. Individual rights may be diminished or eliminated without the public spectacle of an affirmation of the evidence against them, and without venerated rules such as proof beyond reasonable doubt. Almost certainly, the basis for control measures will be intelligence rather than evidence, reflecting the dynamic of preemptive action against terrorism.
The inherent difficulties of intelligence as a basis for action cause problems for professional policing institutions at all stages of the intelligence cycle, from collection to dissemination and storage. (45) But an equally fundamental problem is that the deployment of intelligence as the trigger for official action is unpersuasive, as it is not court-cognizable as "evidence" or proven beyond reasonable doubt. These difficulties are compounded when ultimate decisionmaking is in the hands of less experienced and more politically motivated government ministers as opposed to detached judges. The Butler (46) and Hutton (47) inquiries laid out errors in the grand strategy of war, arising from the veracity of intelligence regarding Iraq's possession of viable weapons of mass destruction and also the malleability of the presentation of that information for the given purpose of convincing the public of the rectitude of counter-measures against Iraq. Concerns regarding the veracity and malleability of intelligence surely apply to the smaller skirmishes over the repression of individuals. Aside from the evils (denial of due process and possible miscarriages of justice) that may be visited upon the individual suspect, there are wider concerns about delivering a sensible balance between personal and public liberty. Indeed, reassurance of security must come in ways that do not transform or disrupt legitimate activities, such as air travel, foreign currency transfers, or political dissent and association.
Several measures in U.K. law could be considered as test cases of counter-terrorism control measures. Probably the most appropriate are the eponymous control orders under the Prevention of Terrorism Act 2005. The system imposed by the Act encompasses both operative dynamics: the imperative to respond to anticipatory risk and the need to extend action to the "neighbor" terrorist. Foremost in the inquiry will be the following questions: what circumstances gave rise to the policy of control orders; what are the main elements of the policy and how is it implemented; is it possible to maintain constitutionalism when dealing with a non-criminal justice mechanism of this kind; and, what lessons can be derived for future policy? It is submitted that these are more pertinent questions than those that seek to establish some kind of "balance" between liberty and security, since such questions are based on the dubious assumption that the reduction of one produces the other. (48) The key question is how the imposition of control measures can be used both to enhance security in the context of constitutional values rather than via measures which are antithetical to them (49) or seek to enfeeble them. (50) As stated by Roy Jenkins, the Home Secretary, in sponsoring the first British counter-terrorism bill of the contemporary era: "Few things would provide a more gratifying victory to the terrorist than for this country to undermine its traditional freedoms in the very process of countering the enemies of those freedoms." (51)
I. CONTROL ORDERS
A. Background to the Enactment of Control Orders
The notion of imposing restraints on the liberty of the individual so as to avert a threat of terrorism is not new in U.K. law. (52) The most direct forerunner was the Prevention of Violence (Temporary Provisions) Act 1939, which reacted to an Irish Republican Army (IRA) campaign in Britain and contained measures of exclusion, prohibition, and registration. (53) Of greatest relevance were registration orders under section 1(3), which arose where the Secretary of State was "reasonably satisfied" that the targeted person was involved in the preparation or instigation of acts of violence or was harboring such a person. (54) The order required the subject to register with the police personal particulars, to be photographed and measured, and to report regularly. (55) Those orders were far less intrusive than the 2005 Act equivalents--the idea seems to have been to facilitate surveillance rather than to avert the need for it. In any event, the police seem to have preferred to opt for the latter by way of alternative orders for the exclusion and prohibition of Irish suspects. (56) Moreover, travel restrictions and identity requirements under wartime legislation, which began later the same year, made registration largely superfluous. (57) Thus, by the time the Act ended in 1954, there had been 190 expulsion orders and seventy-one prohibition orders but only twenty-nine registration orders. (58)
Further precedents, even more obscure to contemporary British legislators, were the some of the regulations issued under the Civil Authorities (Special Powers) Act 1922 (Northern Ireland). The relevant regulations permitted executive orders prohibiting residence in, or entry into, specified areas or imposing conditions as to reporting to the police. (59) These measures were resurrected in 1956 (60) and were also reflected in many colonial emergency codes. (61)
These precedents had no apparent influence over the policies and designs which resulted in the Prevention of Terrorism Act 2005. At no point did the legislators invoke or discuss them. Instead, the history of control orders resides in the previous regime of detention without trial, which was erected, in the shadow of 9/11, by Part IV of the Anti-terrorism, Crime and Security Act 2001. The Act persisted until March 2005 and shall now be explained by way of background. (62)
The 2001 Act was shaped by the judgment of the European Court of Human Right's judgment in Chahal, (63) wherein the United Kingdom was warned that it would contravene article 3 of the European Convention on Human Rights were it to expel a terrorist suspect to a jurisdiction where torture was a substantial possibility. Yet, if such fellows are "the worst of a very bad lot," in the words of Vice President Dick Cheney in January 2002, (64) how can anyone remotely suspected of such a black heart be allowed to go free? Certainly, the idea that total liberty should be afforded to terrorist suspects just because they cannot be convicted under the conditions of full due process in a criminal trial was deemed unacceptable. (65)
As a result, under section 21, detention orders can issue if the Home Secretary reasonably (a) believes that the person's presence in the United Kingdom is a risk to national security, and (b) suspects that the person is a terrorist. (66) The obstacles to a more legitimate form of disposal, such as a criminal trial, were the same as for exclusion and were expressed in the following terms by the Director-General of the Security Service, Dame Eliza Manningham-Buller:
This is one of the central dilemmas of countering this sort of terrorism. We may be confident that an individual or group is planning an attack but that confidence comes from the sort of intelligence I described earlier, patchy and fragmentary and uncertain, to be interpreted and assessed. All too often it falls short of evidence to support criminal charges to bring an individual before the courts, the best solution if achievable. Moreover, as I said earlier, we need to protect fragile sources of intelligence including human sources. (67)
It is evident that U.K. legislators sought to address the dynamic of anticipatory risk with this Act. However, the policy failed to cover "neighbor" terrorism, which was a fatal flaw as it turned out. Underlining this limitation, section 21(2) defined a "terrorist" by reference exclusively to "international terrorism." (68) Part IV was written as if based within the government's immigration powers and so could only apply to persons who were liable to deportation.
It followed that many of the procedures for legal challenge adopted in the 2005 Prevention of Terrorism Act were closely modeled on the Special Immigration Appeals Commission (SIAC) under the Special Immigration Appeals Commission Act 1997. An important procedural feature of the SIAC Act is the power to appoint a security-vetted "special advocate" to represent the appellant's interests (69) when the appellant and his legal representative are excluded from the proceedings (as may occur on grounds of national security under section 5). (70)
Just seventeen detention orders were ever issued under Part IV, over half of them originating in December 2001. (71) Nevertheless, the emergence of detention without trial and the accompanying derogation under article 15 of the European Convention on Human Rights (72) were politically unpalatable. Accordingly, opposition continued in Parliament and also through official reviews. As a result, Part IV was subjected to an unusual degree of scrutiny. In particular, section 122 of the same Act required the Home Secretary to appoint a committee of Privy Counsellors to conduct a review within two years. (73) Lord Newton chaired this team, which reported on December 18, 2003. (74) The Committee viewed the system of detention under Part IV as objectionable in principle because of the lack of safeguards against injustice and also because it provided no protection against British terrorists. It argued for either a more aggressive criminal prosecution stance or intrusive administrative restraints on movement and communications, including some measures not far short of the control orders eventually enacted. The Home Office paper in response (75) was rather more reflective than the initial negative reactions from the Home Secretary (76) but anticipated no urgent reform.
This insouciance was terminally shaken because of judicial intervention. In A v. Secretary of State for the Home Department, (77) the House of Lords concluded in a judgment issued on December 16, 2004, that, while a majority accepted that a public emergency sufficient to warrant a derogation notice under article 15 had been shown to exist, (78) the policy failed on the grounds of disproportionality and discrimination. The question was whether detention without trial was, in the words of article 15, "strictly required by the exigencies of the (emergency) situation?" Unlike the reluctance to question the existence of an emergency, here the court made clear that it was not hidebound by "any doctrine of deference" and should apply a "greater intensity of review." (79) There were two main features of Part IV which were out of keeping with the objective of public safety and were ultimately held to be disproportionate. One was that Part IV only applied to deportable aliens. While they represented the predominant threat, they were not the only problem--to ignore terrorism threatened by British citizens was wrong. The other was that the creation of a "prison with three walls"--the absent fourth wall allowing foreign (80) terrorists to depart the jurisdiction and plot abroad--likewise made no sense. The former feature additionally breached article 14 of the Convention.
Legislators and the Executive would have been foolish to ignore the issuance of a declaration of incompatibility under section 4 of the Human Rights Act 1998, the quashing of the 2001 order under the Human Rights Act, the prospect of future litigation under section 7(1)(a) of the Human Rights Act for an appropriate remedy (presumably compensation rather than release) under section 8, and the prospect of future litigation in the U.K. courts and before the Strasbourg European Court of Human Rights. Furthermore, while a majority of judges had upheld the declaration of a state of emergency, the persistence of such a declared state could become difficult to sustain over a long period of time. In any event, the conditions of detention without trial, increasingly substantial in time and with such bleak prospects of freedom, would eventually be questioned under article 3 standards because of their impact on mental health. (81) Finally, and most relevant to this Article, the strategy sought to distinguish sharply between neighbor and foreigner, denoting them naively as friend and foe. That denotation was unrealistic in 2001. It was condemned as discriminatory by the end of 2004, and the legal instability which resulted could not be permitted to persist. (82)
B. The Replacement System
1. Control orders--outline
The Prevention of Terrorism Act 2005 replaced Part IV (which it largely repeals). (83) The Act came into force on March 11, 2005, just a couple of weeks after it was first introduced into Parliament. (84) It did not get off to a good start. The exceptionally rapid legislative process was the subject of highly rancorous debate which was said to have "demeaned" Parliament (85) as well as becoming the catalyst for the most severe bout of disagreement between Houses of Commons and Lords in modern history. (86) In the course of these debates, the opposition complained that the government had known since December 2004 that replacement legislation was essential, having been forewarned by both the Appellate Committee of the House of Lords and the Newton Committee. (87) The opposition also protested that there was no provision for ongoing Privy Counsellor review. (88) The disagreements were, however, subdued one year later, when only the Lords actually divided the House on a debate about the renewal order. (89)
The Prevention of Terrorism Act provides for "control orders" which differ from Part IV measures in a number of important respects. Most notably, they can apply to citizens as well as foreigners, and they do not for the most part rely upon a derogation notice.
As for the first difference, opposition claims that the extension was unnecessary and that there had been no change in the situation since the previous year were well-founded on that narrow argument, (90) but one might argue that the government had failed to recognize for some years the involvement of citizens as well as noncitizens in al Qa'ida activity. The inclusion of citizens within the scheme meant that SIAC was no longer an appropriate venue for the review of orders. Accordingly, jurisdiction was vested in the High Court or Court of Session (for Scotland) under section 15. (91) Nevertheless, the process by which this court review is undertaken very much resembles the SIAC model (delineated in the sole schedule to the Act). (92) During the debates on the bill, Lord Carlile questioned whether the High Court is the most suitable venue; he suggested that there should be some initial reliance upon the designated District Judges (Magistrates' Courts), Resident Magistrates (in Northern Ireland), or Scottish Sheriffs. (93) This idea is appealing--those judges have built up expertise in dealing with applications for extension of detention under section 41 of the Terrorism Act 2000, and their deployment could then avoid the High Court reviewing its own decisions. The government felt it better reflected the seriousness of the order to employ a High Court judge, however. (94) A more negative viewpoint was that involvement of the courts to any extent would bring them into disrepute. (95) Reflecting very much the dynamic of the need to respond to anticipatory risk, control orders were said to involve "a risk assessment" and "not a decision." (96)
These views, apparently shared by some senior judges,(97) which embody the assumption that judges cannot or should not handle issues of anticipatory risk, should be rejected. It is a fundamental principle that the criminal and civil obligations imposed on the individual should be subject to judicial process (as recognized by article 6 of the European Convention on Human Rights). (98) In addition, the precedent of SIAC has been firmly established, and it is unrealistic to claim that it is distinguishable from the High Court since it involves an administrative process. (99) Indeed, it has been categorized as a "court of record" under the Anti-terrorism, Crime and Security Act 2001, section 35.100 Finally, judges are involved every day in risk assessment when taking bail and sentencing decisions.
As for the second difference, control orders which derogate from rights to liberty (within the terms of article 5 of the European Convention) do require a derogation notice and can only be made by the courts (section 4) while nonderogating orders (expected to be the norm) must still be confirmed by the courts (section 3). This distinction must be understood in light of the jurisprudence of the European Court of Human Rights which does not treat every restriction on physical movement as a loss of "liberty" within article 5. For example, in Guzzardi v Italy, the Court declared that article 5:
[I]s not concerned with mere restrictions on liberty of movement; such restrictions are governed by Article 2 of Protocol No. 4 which has not been ratified by Italy. In order to determine whether someone has been "deprived of his liberty" within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type duration, effects and manner of implementation of the measure in question. (101)
It follows that the detainees did not walk free from H.M. Prison Belmarsh. In fact, they were no longer in detention at all. On March 11, 2005, just before the 2005 Act came into force, Mr. Justice Ouseley in the SIAC decided not to confirm the order against one Part IV detainee, A, and released eight others, B, E, H, K, P, Q, plus Abu Qatada and Mahmoud Abu Rideh, on bail (one, G, was already on bail). (102) The result was that no one was left in physical detention under Part IV. (103) The detention policy had thus been decimated on the same day that control orders came into being. The bail conditions very much presaged the conditions that appeared in due time under control orders.
Following the July 2005 bombings in London, the government renewed its efforts to explore new possibilities of forced removal. In the expectation of a successful outcome, nine control orders issued against former detainees were revoked and they were detained in August 2005 pending deportation. (104) In total, the government served twenty-nine individuals with notices of intention to deport on national security grounds where assurances from the receiving state are thought to be required. (105) Most remain in custody, though the government claims that agreements are "imminent," (106) despite the fact that no agreement has been secured with the country of origin of the majority (Algeria) after some months if not years of contacts, and despite the fact that even where an agreement is in existence (for instance, with Jordan) the relevant nationals, such as Abu Qatada, have still not been removed. (107)
Consequently, Lord Carlile, the independent reviewer of terrorism legislation, has expressed concerns about whether control orders under the Terrorism Act 2005 would provide a sounder legal basis for the detainees' state of limbo. (108) However, the Court of Appeal in R (Q) v. Secretary of State for the Home Department did hold that a detention period of one year, with the prospect of further detention until deportation to Algeria "in the near future," was lawful. (109) One must qualify this precedent with the fact that Q, who had been detained under the 2001 Act and then subjected to a control order until his detention with a view to deportation, had constantly lied about his identity and was thus seen as contributing to his treatment.
2. Control orders--contents and issuance
The essence of the legislation is to permit the government to issue "control orders" which may regulate and restrict individuals suspected of being involved in terrorism. They fit the pattern of dealing with anticipatory risk, and so the basis for the orders is intelligence-led:
Much of the information is derived from intelligence. The sources and content of such intelligence in most instances demand careful protection in the public interest, given the current situation in which there is needed a concerted and strategic response to terrorism (and especially suicide bombings). The techniques of gathering intelligence, and the range of opportunities available, are wide and certainly in need of secrecy. Human resources place themselves at risk--not least by any means those who offer unsolicited information out of disapproval of conduct and events at which they may have been and could continue to be present. (110)
A control order is defined as "an order against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism." (111) It should be emphasized that any individual can be subject to these orders--"neighbor" or visitor. The obligations imposed must be considered "necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity." (112) Subsection 9 defines "involvement in terrorism-related activity" (which may relate to specific acts or to terrorism in general) as comprising: (a) the commission, preparation or instigation of acts of terrorism; (b) conduct which facilitates or is intended to facilitate the commission, preparation or instigation of such acts; (c) conduct which gives encouragement or is intended to give encouragement to the commission, preparation or instigation of such acts; or (d) conduct which gives support or assistance to those known or believed to be involved in terrorism-related activity. (113) The final leg (d) differs from the others in that it contains an element of mens rea as to outcomes. The government resisted an amendment to insert "knowingly" in (a) to (c), suggesting that the need to protect the public would only be triggered by those who are more than unwitting in their behavior. (114)
Subsection (4) sets out a very lengthy and nonexclusive list of obligations that may be imposed pursuant to a control order. It includes: (a) a prohibition or restriction on the subject's possession or use of specified articles or substances (such as a computer); (b) a prohibition or restriction on the subject's use of specified services or specified facilities, or on his carrying on specified activities (banking facilities or a telephone may be in mind here); (c) a restriction with respect to the subject's work or other occupation, or in respect of his business; (d) a restriction on the subject's association or communications with specified persons or with other persons generally; (e) a restriction in respect of the subject's place of residence or on the persons to whom he gives access to his place of residence; (f) a prohibition on the subject's being at specified places or within a specified area at specified times or on specified days; (g) a prohibition or restriction on the subject's movements to, from or within the United Kingdom, a specified part of the United Kingdom or a specified place or area within the United Kingdom; (h) a requirement that the subject comply with such other prohibitions or restrictions on his movements as may be imposed, for a period not exceeding twenty-four hours, by directions given to him in the specified manner, by a specified person and for the purpose of securing compliance with other obligations imposed by or under the order (even a curfew might be imposed); (i) a requirement that the subject surrender his passport, or anything in his possession to which a prohibition or restriction imposed by the order relates, to a specified person for a period not exceeding the period for which the...
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