Background Briefing

Improve Safeguards for Control Orders

Human Rights Watch expressed grave reservations about the current system of control orders when the Prevention of Terrorism Act 2005 was still under debate.38  In our view, the serious restrictions on an individual’s human rights that can be imposed through control orders make them functionally equivalent to the imposition of punishment upon the determination of a criminal charge. This view is reinforced by the fact that breach of a control order is a criminal offense punishable upon conviction by up to five years imprisonment and/or a fine.

Under the Act, the executive branch has the authority to impose conditions that may seriously restrict the enjoyment of rights guaranteed under the ECHR, including freedom of movement, freedom of association, freedom of expression, and the right to privacy and family life for an indefinite period of time on the basis of a low standard of proof and secret evidence.

Human Rights Watch considers that the following safeguards are necessary to bring the control order regime into line with human rights law: First, restrictions should be imposed by a court and only through a process in which credible evidence of their necessity is provided to the court and the person subject to the order. Second, the criminal standard of proof (“beyond a reasonable doubt”) should be applied. Third, there must be appropriate access to meaningful appeal and review. Finally, restrictions should be time limited and open to rescission and amendment of conditions on the presentation of new evidence.

Parliament renewed control order powers earlier this year for another twelve months amid continuing concerns about due process and the extent of the restrictions imposed. Although the Court of Appeal has taken the view that the procedure for application and review of control orders does not violate fair trial standards under article 6 of the ECHR,39 we remain deeply concerned that the current system undermines the right to an effective defense, the principle of equality of arms, and the presumption of innocence.

The courts have quashed eight out of the 19 control orders thus far imposed because the conditions and restrictions taken as a whole were tantamount to deprivation of liberty in contravention of article 5 of the ECHR. 40 The Joint Committee for Human Rights expressed concern that the government has been operating a “de facto derogation from article 5.”41

On May 24, 2007, the outgoing Home Secretary signaled that the government was considering a derogation from article 5, the effect of which would be to permit the use of “house arrest” control orders.42 The Home Secretary’s comment came in response to news that three persons subject to control orders had absconded.

The power to impose control orders amounting to house arrest was created by the PTA 2005, but its use would require a derogation from the ECHR.43 The previous derogation from article 5 linked to indefinite detention was struck down by the Law Lords in December 2004.

A fresh derogation from article 5 ECHR would be a very grave step, which would run counter to the advice of the Preventing Extremism Together working groups, and would be likely to undermine the “prevent” strand of the government’s counterterrorism strategy. In a speech defending the current control order regime, Lord Carlile described the proposal as “barely practicable and probably extremely unwise”44

In his February 2007 review of the PTA 2005, Lord Carlile set out his conclusion that control orders are necessary, but he cautioned that they cannot be maintained indefinitely and called finding a strategy for ending the control orders in respect to each person subject to control orders, either on a case-by-case basis or through new legislation, “a matter of urgency.”45

38 For a detailed exposition of our concerns, see Human Rights Watch, Commentary on Prevention of Terrorism Bill 2005, March 2005,

39 MB v. Secretary of State for the Home Department [2006] EWCA Civ 1140. At this writing, the Court of Appeal ruling is under appeal to the House of Lords Judicial Committee (Law Lords).

40 See High Court decision in JJ and others v. Secretary of State for the Home Department [2006] EWHC 1623 (Admin), upheld by the Court of Appeal in its ruling [2006] ECCA Civ 1141; and High Court decision in E v. Secretary of State for the Home Department [2007] EWHC  233 (Admin), reversed by the Court of Appeal in [2007] EWCA Civ 459 . As a result of the High Court rulings, the Home Secretary modified the control orders. At this writing, appeals to the House of Lords are pending in both cases. See also Secretary of State for the Home Department v. Mahmoud Abu Rideh [2007] EWHC 804 (admin).

41 Joint Committee on Human Rights, “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 2006-2007, March 4, 2007, (accessed March 6, 2007).

42 Fred Attewill and agencies, “Reid promises tough measures after trio vanish,” Guardian Unlimited, May 24, 2007,,,2086945,00.html (accessed May 31, 2007).

43 Prevention of Terrorism Act 2005, section 3.

44 Claire Dyer, “Judges asked to rethink control order rulings after suspects abscond,” The Guardian, May 30, 2007,,,2091112,00.html (accessed May 31, 2007).

45 Lord Carlile, Second report, para. 43.