The cowardly fudge behind the rhetoric of Control Orders


3:11 pm - January 7th 2011

by Robert Sharp    


      Share on Tumblr

I was at the Nick Clegg speech earlier today. He took aim at Labour’s pretty poor record on civil liberties, suggesting that the previous governments were more systematic and less casual than prominent ex-Ministers would have us believe.

Although there were some fine words on Libel Reform and some interesting proposals on Freedom of Information, most of the discussion in the speech itself, and in questions afterwards, was on control orders and curfews.

Clegg refused to outline how these might change, but did say that those who want to see them abolished completely “will be disappointed”. There was one phrase that Clegg used which is particularly grating on the ears.

This was when he said that there were people who ‘we know’ are planning atrocities, but we do not have the evidence to convict them. It stood out, because David Blunket had used precisely the same formulation during his pre-emptive retort on The Today Programme this morning, and I am sure the current and previous Home Secretaries have taken a similar line.

This line of argument sounds tough, plausible and savvy. The speaker gets to burnish his or her credentials as a realist. However, it is a stance that rests on very shaky moral ground. Control orders are a form of pre-emptive detention, and the argument which justifies them is exactly the same as those used by authoritarian governments around the world, when they detain their political opponents.

Moreover, it is a rude and obvious short-circuit of the very basic legal principles. If a Minister ‘knows’ that someone is a danger, then they should be charged and convicted. If there is not enough evidence to convict, then neither politicians, the police nor the general public get to use the word ‘know’ in their rhetoric.

There simply is not the epistemological certainty for that kind of claim, especially not in the context of political arguments. A control order is an extreme form of accusation, and Deputy Prime Ministers and Home Secretaries must not be allowed to make such ‘accusations’ and leave them hanging.

As the Home Secretary conducts her review of control orders in the coming months, look out for examples of this rhetoric, “we know, but we cannot convict.” It is a half-formed argument, a question not an answer.

It is a cowardly fudge for those who do not want to make the tough decision: do we let these suspects go, or do we allow phone-tapping evidence to be admissable in court? This is the issue at stake, and the phenomenon of control orders is simply a clever device for punting the decision.

If Nick Clegg is really serious about restoring civil liberties to British citizens, then he and his Prime Minister need to stop using bad rhetoric, and start making tough choices.

    Share on Tumblr   submit to reddit  


About the author
Robert Sharp designed the Liberal Conspiracy site. He is Head of Campaigns at English PEN, a blogger, and a founder of digital design company Fifty Nine Productions. For more of this sort of thing, visit Rob's eponymous blog or follow him on Twitter @robertsharp59. All posts here are written in a personal capacity, obviously.
· Other posts by


Story Filed Under: Blog ,Civil liberties ,Libdems ,Terrorism

Sorry, the comment form is closed at this time.


Reader comments


1. Chaise Guevara

Agree entirely. From a legal perspective, “know but cannot convict” is an oxymoron unless the accused gets off on a technicality (mistrials or whatever). The only reason people are cool with it, like indefinite detention, is that they assume that it wouldn’t happen to them because they’re in the wrong demographic.

Robert

do we let these suspects go, or do we allow phone-tapping evidence to be admissable in court?

…. but a review of those subject to past control orders has shown that intercept evidence would not have been any use in those cases. It’s a red herring.

the big swing in support for the IRA was internment. Low level sympathisers became people willing to offer safehouse support and funding. Without internment a mainland bombing campaign would have been impossible.

From a legal perspective, “know but cannot convict” is an oxymoron

Not really. It usually means that the evidence required to obtain a conviction is inadmissable in court – in the possession of the prosecution, but not available for the purposes of acquiring a conviction.

It’s interesting that control orders are used only in terror cases. Many people (please note: this does not include me) would be happy, or would have only a few qualms, if control orders or similar measures were placed upon criminals and anti-social elements who make people’s lives misery, as the usual response from the authorities is ‘yes we know who did it, but we can’t get witnesses or don’t have the evidence’. I’m surprised that supporters of control orders, particularly New Labour types, haven’t suggested extending the system to common criminals: it would be popular, and the precedent has been made.

It’s interesting that control orders are used only in terror cases.

Hmmm…. please see this.

Highbury JD,

the big swing in support for the IRA was internment. Low level sympathisers became people willing to offer safehouse support and funding. Without internment a mainland bombing campaign would have been impossible.

Much as I agree with your sentiments, in fact the IRA mounted bombing/shooting campaigns prior to internment on the mainland.

I’m not that fussed about a small number of people being under control orders.
There’s only eight of them, and I couldn’t really care if they are being denied some civil liberties.
That is of course presuming that there was a weight of evidence against them – which we never get to hear about. Is it a criminal offence in this country to have gone to an Al-Qaeda training camp in Pakistan? Or people living in the UK to have been out for a couple of summers with the Taliban for the ‘fighting season’ and then come back and continued with lives here?
Like has been the case – and Cageprisoners think that is perfectly OK, because those Afghans who were living in London who were thought to have done that, were ”defending their country from foreign occupation”.

If it’s not illegal, then I wouldn’t mind if those guys were put on some control order as they are obviously dangerous. Or just deported back to Afghanistan.

9. Shatterface

Useful link from ukliberty there. How many peoole have been convicted for breaching an ASBO on the grounds that the police just *know* they’re guilty? That kind of low-level abuse of the system has been going on for years but the victims don’t have enough political clout to do anything about it.

10. Flowerpower

ukliberty @ 6

very interesting article you linked to…. thanks.

11. Charlieman

@5 Dr Paul: “It’s interesting that control orders are used only in terror cases.”

By definition, control orders only apply to those accused of involvement with terrorism. Common criminals and hooligans are covered by ASBOs which include many control order restrictions: limits on association, curfews, geographical bans, confiscation of passports etc.

And, no, I don’t support ASBOs either.

damon,

I’m not that fussed about a small number of people being under control orders.
There’s only eight of them, and I couldn’t really care if they are being denied some civil liberties.

I must say I think the “there are only eight of them” argument is idiotic.

Surely one either thinks the infringement on the individual is just, necessary and proportionate or one doesn’t, regardless of the number affected by various control orders individual to each person.

Flowerpower and shatterface, thank you, I appreciate it.

13. Chaise Guevara

” How many peoole have been convicted for breaching an ASBO on the grounds that the police just *know* they’re guilty?”

ASBOs are stupid. You shouldn’t be allowed to restrict someone’s movement without proof of wrongdoing. Especially given that they’re often handed out for minor things.

It’s also pretty clear what they’re intended to do, judging from the outraged media reaction you get whenever a nice middle-class person or senior citizen gets an ASBO.

A Labour Government introduced Control Orders and their current Shadow Home Secretary, Ed Balls, is clearly a strong supporter of them, as judged by his performance on the radio yesterday – or was he just playing the current Labour Party game of political opportunism is opposing any the Government does which might be unpopular? It’s a pity that contributors to “Liberal Conspiracy” didn’t shout louder when Labour were in power – or do them only enjoy shouting when Labour are in opposition?

ukliberty

Surely one either thinks the infringement on the individual is just, necessary and proportionate or one doesn’t, regardless of the number affected by various control orders individual to each person.

These three men just convicted in Australia for a conspiracy to attack an army base there cound not have been convicted in the UK, because much of the evidence against them was intercepted telephone conversations.
http://www.garoweonline.com/artman2/publish/Somalia_27/Somali_community_stuck_by_terror_accused.shtml

I really don’t understand why that is so in the UK, as the security services are surely listening in to suspect’s phones. And what a better way to convict yourself than by talking about your plans on the telephone and having them relayed in court?

I just don’t get this argument

Senior intelligence and secret service officers have voiced continuing opposition to using the material in court. Top MI5 and MI6 officials have told the Guardian that the use of such evidence in court would reveal secret techniques and operations, and would prove too expensive by requiring officers to trawl through vast numbers of phone recordings.

http://www.guardian.co.uk/law/2010/may/16/law-intercept-evidence-lifting-ban

If that plot to attack the army base had taken place in Britain ukliberty, you’d wan’t them men freed as they couldn’t be charged, even though it was known what they were up to?

I still don’t know if it’s a crime to have been to an Al-Qeada training base.

damon,

If that plot to attack the army base had taken place in Britain ukliberty, you’d wan’t them men freed as they couldn’t be charged, even though it was known what they were up to?

What I would want is for them to be charged. I do not believe it is beyond our wit – particularly as the Australians managed it. *rimshot*

I still don’t know if it’s a crime to have been to an Al-Qeada training base.

I don’t know if’s a crime to visit, but it is certainly an offence to receive instruction or training in ‘terrorism’, under s6(2) Terrorism Act 2006.

Have a look at this judgement.

Control orders can ruin lives. I do not believe it is just to ruin someone’s life on the basis of evidence he is prevented from challenging (he is not made aware of its existence).

damon,

I really don’t understand why that is so in the UK, as the security services are surely listening in to suspect’s phones.

Undoubtedly they are.

This document is informative and summarises the position to July 2010.

I recall reading something about evidence withheld from the controlee and heard in secret – I can’t for the life of me remember the detail, sorry. But subsequently, on appeal, the controlee heard the broad outline of the evidence and provided an explanation that was accepted unquestioned by the court. It was an entirely innocent event, but something that contributed to suspicion and therefore contributed to the decision of the authorities to issue the control order.

I am not suggesting this was the only evidence, or that they would not have issued the control order without it, or that such a thing ever occurred in other cases. My point is that if the controlee cannot challenge the evidence then he does not get a fair hearing. And this is a position held time and again by the judiciary:

Time and again in the cases I have cited it has been stated that a decision without regard to the principles of natural justice is void, and that was expressly decided in Wood v Wode. I see no reason to doubt these authorities. The body with the power to decide cannot lawfully proceed to make a decision unless it is afforded to the person affected a proper opportunity to state his case. – Ridge v Baldwin [1964] AC 40 (via a control order judgement of great interest)

OK so I understand why MI5 and MI6 are reluctant to show their intercept evidence.
Because of our adversarial legal systen and the defence pulling it to pieces. It’s not just playing the recording of phone conversations in court, because the defence will be asking ”how can you prove that’s my client talking?” And … ”How can you prove that is not someone pretending to be my client and incriminating him?” etc etc etc. And the security services are reluctant to give up their secrets. Fair enough.

But still, that was all rather legalistic. You’d hope our security services were competent.
It seems a bit harsh on Cerie Bullivant if all he was doing was getting on a plane.
“I met a couple of guys playing football who suggested a trip to Syria. I wanted to work with orphanages, teach English, so I packed my bags. At the airport I was stopped under anti-terror laws and held for nine hours. They took my passport.

A month later I got my passport back and made plans to go to an orphanage in Bangladesh. Days later I was put on a control order”.
http://www.guardian.co.uk/politics/libertycentral/2009/oct/17/my-decade-control-order-cerie-bullivant
Are they just pulling people out of airport queues at random or something? Very odd.

Kind of tough on him.

Airports and London railway terminals were put on heightened alert against terrorist threats this morning.
Raised from ‘substantial’ to ‘severe’, although there is no suggestion of any intelligence of an imminent attack.
Security officials are stressing the change is precautionary but the overall national threat level at severe means a terrorist attack is highly likely.

That was from yesterday. I wonder if they just make it up.

20. Flowerpower

damon @ 19

Are they just pulling people out of airport queues at random or something? Very odd.

Nope. What the Guardian (significantly?) fails to mention is that Cerie Bullivant’s travelling companion on the day he was fished out of the airport queue in 2005 was one Ibrahim Adam, whose brother Rahman Benouis (AKA Rahman Adam AKA Anthony Garcia) was then being held on terror charges. When his case came to trial in 2007, Garcia was sentenced to life imprisonment for conspiring to cause explosions. It emerged that he had undertaken terrorist training in Pakistan in 2003.

Hardly random.

Moreover, “travelling to Syria to learn Arabic” was in 2005 a popular cover-story for Islamists en route for jihad in Iraq.

I think the answer to that Flowerpower, is ”prove it”. So he was with the brother of a convicted terrorist. So what? Are we now our brothers keepers?

It would be good to know if people thought that even preventing their group from leaving the country was a just thing to do, and to take Cerie Bullivant’s passport away from him for a month. They were certainly right to be suspicious of people going to Syria in 2005, when that was the number one gateway into Iraq for people going to fight there.
And even if they had just been looking to work in orphanages, teach English and learn Arabic, the country was swarming with people from all over the place, getting ready to go to Iraq.
And they would be coming across them at every turn in Damascus. Mixing with them too, as it would be difficult not to in and around the city and in the mosques.

On the other hand, it’s pretty out of order for some airport Special Branch officers (or whoever) to be able to make snap judgements on what they think your purpose of travel out of the country might be.
I wouldn’t like to get stopped and asked, ”but exactly why are you off on your own on a trip to Thailand? You’re not going for a bit of sex tourism are you?”

22. Chaise Guevara

@20

“Nope. What the Guardian (significantly?) fails to mention is that Cerie Bullivant’s travelling companion on the day he was fished out of the airport queue in 2005 was one Ibrahim Adam, whose brother Rahman Benouis (AKA Rahman Adam AKA Anthony Garcia) was then being held on terror charges.”

His mate’s brother? That’s roughly the degree of separation you need to get a good urban myth going. But no, let’s harrass anyone who knows someone who knows someone who’s been accused of something. That should let us all sleep soundly and stupidly in our beds.

In relation to Bullivant’s trip, paras 16-21 of this judgement are of interest. In particular, “It seems to me that the submission by Mr Owen that a view that was consistent with guilt has been allowed to prevail when in reality the matters relied on were equally, and perhaps more, consistent with innocence has force.”

In relation to Garcia, “[Bullivant claimed he] was not aware that Anthony Garcia, who was in prison on terrorism charges, was a brother of Lamine and Ibrahim and he had not met or spoken to him. He was only aware of him and that he was in prison after he had been stopped at the airport and Ibrahim had told him that he suspected that the stopping might have had something to do with his brother.”

OT, but did you see this?

There’s a simple, if chilling explanation for “know but cannot convict”: At least some of those subject to control orders are actually rogue British intelligence assets, who’s job it was to recruit and train jihadists for use as a proxy army in Kosovo and Afghanistan. According to John Loftus, a former prosecutor for the US Justice Deparment, Haroon Aswat (mastermind of the 7/7 London bombings) was “working for British intelligence”.

We allowed these known, dangerous terrorists into the country under a so-called Covenant of Security: basically an agreement that we’d let them to inflitrate our mosques and radicalise our young – provided they didn’t plot against us. Obviously they did (blowback). That’s why MI6 so desperately want these control orders: it would be extremely damaging if it was widely known that key terrorists effectively work for us. Normal judicial procedure means a public trial.

Plus 42-day detention periods buy the SIS time to negotiate extradition. Which perhaps explains why so many of those on control orders have “disappeared”.


Reactions: Twitter, blogs
  1. Liberal Conspiracy

    The Rhetoric of Control Orders http://bit.ly/hrqGps

  2. Lee Hyde

    RT @libcon: The Rhetoric of Control Orders http://bit.ly/hrqGps

  3. Police State UK

    The Rhetoric of Control Orders – watch out for the formulation “we know, but we cannot convict.” http://bit.ly/eGlCye

  4. Richard Wilson

    RT @libcon: The Rhetoric of Control Orders http://bit.ly/hrqGps

  5. Nicholas Stewart

    RT @PoliceStateUK: The Rhetoric of Control Orders – watch out for the formulation “we know, but we cannot convict.” http://bit.ly/eGlCye

  6. Marcus Povey

    RT @PoliceStateUK: The Rhetoric of Control Orders – watch out for the formulation “we know, but we cannot convict.” http://bit.ly/eGlCye

  7. Richard Wilson

    When epistemologists attack! Elegant take-down by @Libcon of the New Labour old school’s Control Order sophistry: http://bit.ly/hrqGps

  8. Kevin Blowe

    RT @PoliceStateUK: The Rhetoric of Control Orders – watch out for the formulation “we know, but we cannot convict.” http://bit.ly/eGlCye

  9. Richard Hall

    RT @PoliceStateUK: The Rhetoric of Control Orders – watch out for the formulation “we know, but we cannot convict.” http://bit.ly/eGlCye

  10. Finola Kerrigan

    RT @libcon: The Rhetoric of Control Orders http://bit.ly/hrqGps

  11. Jose Aguiar

    RT @libcon: The Rhetoric of Control Orders http://bit.ly/hrqGps

  12. robertsharp59

    Something quick/new from me on @libcon: The cowardly fudge behind the rhetoric of Control Orders http://bit.ly/hrqGps

  13. Sim-O

    RT @libcon: The Rhetoric of Control Orders http://bit.ly/hrqGps

  14. Simon Sayer

    RT @libcon: The Rhetoric of Control Orders http://bit.ly/hrqGps

  15. On Nick Clegg scrapping control orders | Sim-O

    [...] Robert Sharp at Liberal Conspiracy… [control orders are] a rude and obvious short-circuit of the very basic legal principles. If [...]

  16. Gary Banham

    Dodgy knowledge claims in political argument: RT @libcon: The Rhetoric of Control Orders http://bit.ly/hrqGps

  17. robertsharp59

    Thanks @PoliceStateUK @dontgetfooled @anubeon @mapkyca @hallymk1 @finolak @tabacaria @copwatcher for the RT! http://bit.ly/hrqGps #FF

  18. Roy Bard

    RT @libcon: The Rhetoric of Control Orders http://bit.ly/hrqGps

  19. Miriam Said

    RT @PoliceStateUK: The Rhetoric of Control Orders – watch out for the formulation “we know, but we cannot convict.” http://bit.ly/eGlCye

  20. Jacob Richardson

    RT @PoliceStateUK: The Rhetoric of Control Orders – watch out for the formulation “we know, but we cannot convict.” http://bit.ly/eGlCye

  21. Spir.Sotiropoulou

    The cowardly fudge behind the rhetoric of Control Orders | Liberal Conspiracy http://t.co/vk9S6fw via @libcon

  22. Jonathan Taylor

    This is the key question: Do we let these suspects go, or do we allow phone-tapping evidence to be admissable in court? http://bit.ly/hrqGps





Sorry, the comment form is closed at this time.