Rebalancing, Reviewing or Rebranding the Treatment of Terrorist Suspects: The Counter-Terrorism Review 2011

AuthorBen Middleton
DOI10.1350/jcla.2011.75.3.707
Published date01 June 2011
Date01 June 2011
Subject MatterArticle
JCL 75(3) dockie..JCL707 Middleton .. Page225 Rebalancing, Reviewing or
Rebranding the Treatment of
Terrorist Suspects: the Counter-
Terrorism Review 2011
Ben Middleton*
Abstract
On 26 January 2011, the Home Secretary unveiled the outcome
of the much-anticipated Counter-Terrorism Review, which straddled a
political fault line between Conservative and Liberal Democrat policies.
This article considers the impact of that review on the treatment of
terrorist suspects. It is suggested that the review was both over-inclusive
and under-inclusive in scope. While welcome reform and rebalancing has
been instigated in some areas, the review represents missed opportunities
in others, and on occasion offers little more than modest rebranding of
pre-existing powers. It is argued that the review falls short of its target in
three main areas: consideration should have been given to the use of a
wide range of commonly charged terrorism offences; diplomatic assur-
ances that individuals will not be subjected to ill-treatment following their
deportation still need to be meaningfully assessed and reformed; and the
regime which is set to replace control orders requires careful scrutiny.
More welcome advances are clear in relation to the use of pre-charge
detention and powers of stop and search. It is contended that the current
political momentum needs to be seized if further advances are to be made
in restoring the balance of civil liberties in these areas.
Keywords
Anti-terrorism; Coalition Government; Control orders,
TPIMs; Stop and search
To a fanfare of trumpets, the Counter-Terrorism Review was announced
on 13 July 2010 to amend or ‘roll back’ legislation where needed in
order to ‘restore the balance of civil liberties’.1 A number of factors
combined to delineate the boundaries of the review. The Liberal Demo-
crats could not risk further damaging concessions to their election
manifesto, where they had pledged to ‘Scrap control orders, which can
use secret evidence to place people under house arrest’ and reduce the
period of pre-charge detention to 14 days.2 The Conservative Party had
made a concomitant commitment to the reduction in the use of surveil-
lance powers by local government.3 Several judgments have been ren-
dered by the domestic courts and European Court of Human Rights that
* Senior Lecturer in Law, University of Sunderland; e-mail
ben.middleton@sunderland.ac.uk.
1 Press Release, ‘Rapid Review of Counter-Terrorism Powers’, 13 July 2010,
available from http://www.homeoffice.gov.uk/media-centre/press-releases/counter-powers,
accessed 22 March 2011.
2 Liberal Democrat Manifesto 2010, pp. 94–5.
3 Invitation to Join the Government of Britain, The Conservative Manifesto 2010,
p. 79, available at http://media.conservatives.s3.amazonaws.com/manifesto/
cpmanifesto2010_lowres.pdf
, accessed 22 March 2011.
The Journal of Criminal Law (2011) 75 JCL 225–248
225
doi:10.1350/jcla.2011.75.3.707

The Journal of Criminal Law
require attention: Strasbourg drove a coach and horses through the use
of stop and search provisions under s. 44 of the Terrorism Act 2000 by
declaring a violation of Article 8 of the European Convention on Human
Rights,4 and judgment is expected later this year in relation to the UK’s
use of deportation with assurances (DWA).5 The corollary of these
developments was that the Counter-Terrorist Review was to be limited
to consideration of six core issues: the detention of terrorist suspects
before charge; the use of stop and search powers (and terrorism legisla-
tion in relation to photography); the use of the Regulation of In-
vestigatory Powers Act 2000 (RIPA) by local authorities and access to
communications data more generally; measures to ‘deal with organisa-
tions that promote hatred or violence’; extending the use of DWA; and
the use of control orders.6 Independent oversight of the review was
trusted to Lord Macdonald, who produced a largely supportive
report.7
At first glance, the Counter-Terrorism Review appears paradoxically
both over-inclusive and under-inclusive. In terms of over-inclusiveness,
a variety of issues were considered that, whilst undoubtedly important,
do not sit logically within the ambit of a counter-terrorism review. Two
such issues are immediately apparent: (1) the use of surveillance by local
authorities and (2) measures to deal with organisations that promote
hatred or violence. On the first issue, the statement of the Home
Secretary that the use of RIPA by local authorities had damaged people’s
confidence in counter-terrorism legislation8 was somewhat disingen-
uous: RIPA is not solely a counter-terrorism statute and powers of
surveillance exist to augment ordinary criminal investigations as well as
those with a link to terrorism. Amendments could have been proposed
separately, which would have allowed a more focused analysis of a
broader range of counter-terrorism powers in the current review. On the
second issue, in the current political context, reform was never going to
be meaningfully achievable in such a time-constrained review;9 its
inclusion amounted to little more than a vestigial exercise.
In terms of under-inclusiveness, the Counter-Terrorism Review falls
far short of the scope and depth required of some of the counter-
terrorism provisions, and urgent reform is needed in other areas. Arrays
of terrorism-related offences and powers have been overlooked in the
haste to conduct a ‘rapid’ review. Since the review became ensnared in
4 Gillan and Quinton v United Kingdom (App. No. 4158/05, 12 January 2010).
5 Othman v United Kingdom (App. No. 8139/09, 11 February 2009).
6 HM Government, Review of Counter-Terrorism and Security Powers: Review Findings
and Recommendations, Cm 8004 (TSO: London, January 2011) (hereafter ‘Counter-
Terrorism Review’).
7 Review of Counter-Terrorism and Security Powers: A Report by Lord Macdonald of River
Glaven QC, Cm 8003 (TSO: London, January 2011) (hereafter ‘Macdonald
Report’). Note, however, the recommendations of Lord Macdonald regarding
curfews and electronic tagging (ibid. at 13, para. 28).
8 Theresa May MP, Hansard HC, col. 313, 26 January 2011.
9 For background, see N. Clegg, Deputy Prime Minister’s Speech on the open,
confident society: An Open, Confident Society: The Application of Muscular Liberalism in
a Multicultural Society
, 3 March 2011, available from http://www.dpm.cabinetoffice.gov.
uk/news/deputy-prime-ministers-speech-open-confident-society
, accessed 22 March 2011.
226

Rebalancing, Reviewing or Rebranding the Treatment of Terrorist Suspects
Coalition ‘wrangling’ and publication was delayed from autumn 2010 to
January 2011,10 it is hoped that long-term attention has not been
diverted from a substantive assessment of other counter-terrorism pro-
visions.11 Given the fact that there have been five substantial pieces of
counter-terrorism legislation and prolific litigation since 2000,12 codifi-
cation and consolidation are needed in various areas.
This article examines the outcomes of the Counter-Terrorism Review
from the perspective of how the resulting proposals may be deployed
against a terrorist suspect. The analysis is conducted in four parts. First,
the desirability of prosecution as the principal strategy is addressed, and
attention is drawn to a raft of statutory provisions that are currently
preferred by prosecutors, but do not feature in the review. Secondly,
consideration is given to the DWA regime, by which diplomatic promises
that an individual will not be subjected to ill-treatment are obtained
from respective governments. These issues are time-critical and politic-
ally sensitive, particularly in light of the current instability of certain
regimes in the Middle East; and the article suggests that opportunities
were missed for meaningful reform in this area. Thirdly, where deporta-
tion is not possible, the adoption of an executive-based system of control
measures, formerly known as control orders, is considered. This article
considers the proposed successors to this regime, Terrorism Prevention
and Investigation Measures (TPIMs), and provides a comparative crit-
ique between the old system and new proposals. It is argued that despite
some modest improvements, the flagship measures amount to little
more than an exercise in rebranding. Fourthly, more welcome develop-
ments in the form of amendments to pre-charge detention and the stop
and search regimes are discussed, together with an analysis of the some
of the possible outcomes should all of the review’s recommendations
become codified into law.13
Preferring prosecution
CONTEST, the Government’s counter-terrorism strategy, makes it clear
that prosecution of suspected terrorists is always the preferred option.14
To further this aim, numerous terrorism-related offences have been
created over the last decade, or have been imported from the substantial
experience that the UK has had in countering Northern Ireland-related
10 Yvette Cooper MP, Hansard HC, col. 312, 26 January 2011; BBC News, ‘Cooper
attacks “shambolic” counter-terrorist review’, 24 January 2011, available from
http://www.bbc.co.uk/news/uk-politics-12267920, accessed 22 March 2011 .
11 Review of the ‘Prevent’ strand of CONTEST, the government’s counter-terrorism
strategy, is expected sometime between spring and summer 2011.
12 Terrorism Act 2000; Anti-Terrorism, Crime and Security Act 2001; Prevention of
Terrorism Act 2005; Terrorism Act 2006; Counter-Terrorism Act 2008.
13 The Freedoms Bill was given its second reading in the House of Commons on 1
March 2011 and is awaiting Committee Stage at the time of writing. The...

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