TPIMs in 2014 (March 2015)

Both my annual report on the operation of the Terrorist Prevention and Investigation Measures (TPIMs) Act 2011 and the Government’s response¬†were laid before Parliament and published on 12 March 2015.¬† They are summarised here.

TPIMs report

TPIMs – the less onerous successors to control orders – “withered on the vine” during 2014, with only a single TPIM intermittently in force.¬† That is in itself no cause for regret: as demonstrated by the November 2014 judgment in DD v Secretary of State for the Home Department [2014] EWHC 3820 (Admin), which is freely available on the bailii website, TPIMs are intrusive measures which need to be reserved for the exceptional cases in which a credible terrorist threat cannot be dealt with by prosecution of deportation.

But TPIMs can be very useful in an appropriate case: they can disrupt the associations of dangerous terrorists, as well as reducing the cost of keeping an eye on them (e.g. by tagging and the use of curfews).  Confidence in the regime was jeopardised by two high-profile absconds in 2012 and 2013.  If the regime is to be retained, it is important therefore that it is fit for purpose.

With this in mind, I made 10 recommendations for improvement in my Report of March 2014.  With minor reservations, all 10 of those recommendations have been accepted by the Government, and those requiring statutory change have been given effect in the Counter-Terrorism and Security Act 2015.

Key recent changes to the TPIM regime include:

  • A reduction in the scope of “terrorism-related activity”, to ensure that only those who are closely related¬†to acts of terrorism¬†may be subject to TPIMs
  • A requirement that the Home Secretary be satisfied of involvement in terrorism on the balance of probabilities before she can impose a TPIM
  • The ability to require TPIM subjects to attend meetings with a view to deradicalisation
  • The restoration of a relocation power, under which TPIM subjects – with their family if they so choose – can be required to live up to 200 miles from their home and local associates.
  • The formation of a working group, chaired by a High Court judge and tasked with identifying recommendations that could improve the fairness of TPIM proceedings.

My report concludes:

“I believe that TPIMs Mk II should be fairer and more serviceable than either the control order regime in force from 2005-2011,¬† or TPIMs Mk I.¬† That proposition will be tested in the years ahead.¬† In any event, I hope nobody will lose sight of the fact that these exceptionally intrusive measures, though a powerful weapon against the undoubted threat of terrorism, are also a last resort.”

TPIMs – Government response

In its response, the Government notes that it has accepted most of my recommendations and reflects upon two that it did not:

  • the proposal that the¬†Home Secretary should be¬†required on review to persuade¬†a court¬†on the balance of probabilities that a TPIM subject was involved in terrrorism, and
  • a statutory bar to the use as evidence of information given during compulsory deradicalisation interviews (appointment measures).

On the first of those points, the Government notes that the court will¬†ask whether the Home Secretary has acted reasonable and proportionately¬†– though it adds, intriguingly, that “Both the Home Secretary‚Äôs decision to impose a TPIM notice and the review by the court will be considered on the balance of probabilities that the individual is or has been involved in terrorism-related activity.”

On the second, the Government¬†considers that the existing power of the criminal courts¬†to exclude evidence where to admit it would have an adverse effect on the fairness of proceedings is a “sufficient safeguard” to ensure that information obtained in these meetings cannot be unfairly used against the individual.¬† This recalls the¬†Government’s failure to adopt the recommendation of the Divisional Court in Beghal (echoed in my July 2014 report) that there should be a statutory bar on the use of evidence given under compulsion in the course of an interview under Schedule 7 to the¬† Terrorism Act¬†(port powers).¬† More positively, the Home Secretary undertakes to “consider on a case by case basis whether appropriate assurances can be provided about how information obtained through the appointments measure will be used”.

 

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