Terrorism Prevention and Investigation Measures: Constitutional Evolution, Not Revolution?
| DOI | 10.1350/jcla.2013.77.6.880 |
| Date | 01 December 2013 |
| Author | Ben Middleton |
| Published date | 01 December 2013 |
| Subject Matter | Article |
Terrorism Prevention and
Investigation Measures:
Constitutional Evolution,
Not Revolution?
Ben Middleton*
Abstract This article analyses the Terrorism Prevention and Investigation
Measures (TPIM) regime, which replaced the controversial system of
control orders, and examines recent jurisprudence. It suggests that
changes can be made to individual TPIM notices and to constitutional
oversight mechanisms both of the regime and in counter-terrorism law
generally. At the individual level, reform to TPIM notices would help
further the evolution of counter-terrorism law towards ideals intrinsic to
the rule of law. At a more general level, increased constitutional safe-
guards should be considered, not just as a feature of the TPIM regime, but
also as a template for evolutionary change to other counter-terrorism
powers. The ultimate aim should be to relinquish the use of TPIMs in
favour of prosecution and surveillance strategies.
Keywords Control order; Terrorist suspect; Constitutionalism;
Prosecution
The Terrorism Prevention and Investigation Measures Act 2011 (TPIMA
2011) was intended to provide a rebalanced1and tailored2alternative to
the much-maligned control order regime,3with a renewed emphasis
placed on the prosecution of terrorist suspects.4Given the changed
political landscape, it was not surprising that the influence of Liberal
Democrat policies was clear across much of the pre-legislative rhetoric,5
yet it has been argued that this rhetoric was not matched by the reality
* Principal Lecturer, University of Sunderland; e-mail: Ben.Middleton@Sunderland.
ac.uk.
1 Home Office Press Release, ‘Rapid Review of Counter-Terrorism Powers’, 13 July
2010, available at http://www.homeoffice.gov.uk/media-centre/press-releases/counter-
powers, accessed 18 October 2013.
2 HM Government, Review of Counter-Terrorism and Security Powers: Review Findings
and Recommendations, Cmd 8004 (TSO: London, 2011) 41, para. 23 (cited hereafter
as ‘Counter-Terrorism Review’).
3 NGOs have been vociferous in their opposition: see, e.g., Human Rights Watch,
‘UK: “Control Orders” for Terrorism Suspects Violate Rights’, 2 March 2009;
Liberty, ‘From War to Law: Liberty’s Response to the Coalition Government’s
Review of Counter-Terrorism and Security Powers 2011’, available at http://www.
liberty-human- rights.org.uk/pdfs/policy10/from-war-to-law-final-pdf-with-bookmarks.pdf,
accessed 18 October 2013; Amnesty International, ‘United Kingdom: Five Years
On: Time to End the Control Orders Regime’, AI Index 45/012/2010, 12 August
2010, available at http://www.amnesty.org/en/library/info/EUR45/012/2010, accessed
18 October 2013.
4 Liberal Democrat Manifesto 2010, 40, available at http://network.libdems.org.uk/
manifesto2010/libdem_manifesto_2010.pdf, accessed 18 October 2013.
5 Ibid.
562 The Journal of Criminal Law (2013) 77 JCL 562–582
doi:10.1350/jcla.2013.77.6.880
of the new provisions.6Over a year after the enactment of the replace-
ment measures, the Terrorism Prevention and Investigation Measures
(TPIM) regime has been criticised, both for failing to protect the public
and for transmogrifying into a clone of its parent.7Vestigial emergency
provisions, abandoned on the face of the 2011 Act, have been urgently
reconsidered.8
Though an examination of the TPIM jurisprudence, this article sug-
gests that a restructured approach is needed in order to ensure that
judicial and legislative oversight of the regime is effective, and ensure
that the regime represents a proportionate response to the terrorism
threat. Reform is possible at both micro and macro levels. On a micro
level, changes to individual TPIM notices would help to further the
evolution of counter-terrorism law towards ideals of liberty and fairness,
which are intrinsic to the rule of law. On a macro level, increased
constitutional safeguards should be considered, not just as a feature of a
renewed TPIM regime, but also as a template for exceptional counter-
terrorism powers generally.
Criticisms of the control order regime
Control orders or preventive orders placed on individuals who are
suspected of engaging in terrorism-related activity were designed to
address a lacuna in the counter-terrorism strategy that has arisen
around prosecution, detention, control and surveillance of suspects.
Prosecution is not always possible—sensitive material cannot be di-
vulged in court for fear of compromising sensitive national security
techniques or for risking damage to international relations.9Some evid-
ence may be inadmissible.10 The CPS may consider there to be in-
sufficient evidence to provide a realistic prospect of conviction, or it may
not be likely that further evidence to support such a prospect will be
forthcoming.11
Where a terrorist is a foreign national, the government has recourse
though a deportation strategy, and the legal fracas that can ensue is
6 B. Middleton, ‘Rebalancing, Reviewing or Rebranding the Treatment of Terrorist
Suspects: The Counter-Terrorism Review 2011’ (2011) 75 JCL 225.
7 Critics of the control order regime, including Amnesty International and Liberty,
remain highly critical of the replacement mechanism (T. Hancock, ‘UK: TPIMs
Anti-terrorism Plans Would “Seriously Undermine” Human Rights’, Amnesty
International, 4 September 2011, available at http://www.amnesty.org.uk/news_
details.asp?NewsID=19666, accessed 18 October 2013; S. Farthing, ‘Anyone for
TPIMs—Control Orders with a Twist?’, Liberty, 2 September 2011, available at
http://www.liberty-human-rights.org.uk/news/2011/anyone-for-tpims-control-orders-with-a-
twist-.php, accessed 18 October 2013.
8 This is particularly true of the provisions of forced relocation: the government
published a Draft Enhanced Terrorism Prevention and Investigation Measures Bill
that could be introduced in an emergency, which would allow more intrusive
restrictions on an individual; below text to n. 135.
9 Counter-Terrorism Review, above n. 2 at 14.
10 Ibid.
11 This is known as the ‘threshold test’: Crown Prosecution Service, The Code for
Crown Prosecutors (January 2013) 14–17, available at http://www.cps.gov.uk/
publications/docs/code2013english_v2.pdf, accessed 18 October 2013.
Terrorism Prevention and Investigation Measures
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