Preventive anti-terrorist strategies in the UK and ECHR: Control orders, TPIMs and the role of technology

Abstract

The paper considers a key counter-terror strategy in the UK post-9/11 – the shift from a criminal justice response to the creation of a parallel preventive system running in tandem with the continuing criminal justice one. The preventive response does not rely on the commission of criminal offences or adherence to ordinary criminal justice safeguards. This preventive strategy relies on targeting terrorist suspects – those who, it is thought, may in future commit terrorist acts – and curtailing their liberty with the aim of preventing terrorist activity before it occurs. Since 2005 the preventive strategy has partly relied on the imposition of control orders on certain terrorist suspects; such orders are about to be replaced by Terrorism Prevention and Investigation Orders (TPIMs) at the end of 2011. Both types of order create a means of controlling or curbing the liberty of such suspects without a criminal trial. The paper evaluates the responses of the courts to control orders, and the reasons for their abandonment in favour of TPIMs. It argues that the human rights' issues raised in court in relation to control orders over the last six years are likely to be re-raised – albeit to a somewhat lesser extent – in relation to TPIMs. In considering this issue, the paper touches on the question of the use of technology in relation to both control orders and TPIMs as measures allowing interferences with liberty.