Counter-Terrorism Bill

moved Amendment No. 48B: 48B: After Clause 80, insert the following new Clause— ““Control orders: pre-conditions (1) Section 2 to the Prevention of Terrorism Act 2005 (c. 2) (making of non-derogating control orders) is amended as follows. (2) After subsection (1)(b) at the end insert ““; and (c) unless section 3(1)(b) below applies, the DPP has certified that there is no reasonable prospect of successfully prosecuting the subject of the order for a terrorism-related offence.””.”” The noble Lord said: My Lords, I understand that the Government share our view that, where possible, potential controlees should be prosecuted rather than made subject to control orders. Such an approach not only accords with principles of justice—restraint should be imposed on individuals as a consequence of what they have done in the past, not as a result of an assessment of the risk that they might do something in the future—but is also important because, as experience has shown, prison affords better protection to the general public than the combination of curfew and surveillance. As I indicated in Committee, the principle has been well articulated by the noble and learned Baroness, Lady Hale, in the recent case of R v E, heard in the Appellate Committee of your Lordships’ House. The speech that she made particularly addressed this issue. Although I quoted from it in Committee, it is worth doing so again on Report. The noble and learned Baroness said, "““a control order must always be seen as ‘second best’. From the point of view of the authorities, it leaves at liberty a person whom they reasonably believe to be involved in terrorism and consider a risk for the future. The public is far better protected, even while criminal proceedings are pending, let alone if they result in a conviction. From the point of view of a controlled person, serious restrictions are imposed upon his freedom of action on the basis of mere suspicion rather than actual guilt. From both points of view, prosecution should be the preferred course””." During the passage, in the early months of 2005, of what was to become the Prevention of Terrorism Act, we fought strenuously from these Benches to enshrine in the original legislation the terms of the two amendments before your Lordships’ House today. The first requires that the Director of Public Prosecutions decide whether prosecution is the appropriate course of action to take in respect of each potential controlee. The Act currently places that responsibility on the police. In our view, that approach exhibits a fundamental constitutional misunderstanding. It is the Crown Prosecution Service, not the police, which decides whether an individual should be prosecuted, based on the twin considerations of the cogency of the evidence and the public interest. Why should potential controlees alone be exempted from the application of this principle? The second amendment would ensure that the prospect of prosecution, if legitimately considered and properly rejected at the outset, should nevertheless be kept under regular review. In Committee, I drew your Lordships’ attention to the strong endorsement given to this matter by the Appellate Committee of your Lordships’ House, again in the case of R v E. It endorsed the view of the Court of Appeal, expressed at an earlier stage in the case, that it is implied in the scheme of the Prevention of Terrorism Act that the Secretary of State is under a duty to keep the possibility of prosecution under continuing review. I can do no better than conclude with the words of the Joint Committee on Human Rights, expressed at paragraph 79 of its 20th report of the 2007-08 Session. It says: "““In the E case the Secretary of State’s argument was that all that s. 8 PTA 2005 required was that she consult the chief of police at the outset and then make periodic inquiry as to whether the prospect of prosecution had increased. The courts rejected that argument, holding that there is an implied continuing duty to review, and that it is implicit in that duty that the Secretary of State must do what she reasonably can to ensure that the continuing review is meaningful, by providing the police with relevant material. As we observed in our report on this year’s annual renewal of the control orders legislation, we are not at all confident that the police see very much of the material on the basis of which the Home Secretary imposes control orders on individuals. It remains our view that the policy of giving priority to prosecution would ""be better served if these implied duties recognised by the courts, in the face of the Government’s argument to the contrary, were turned into express duties spelled out clearly on the face of the legislation””." I beg to move.