Planned control orders raise judges' fears for civil liberties

Planned control orders raise judges' fears for civil liberties

Alan Travis and Clare Dyer
Tuesday August 28, 2007
The Guardian

Senior judges have warned ministers they risk a re-run of their clash with the courts over control orders by introducing new proposals that will place "massive restrictions" on certain convicted violent offenders after they have left prison.

The Council of HM Circuit Judges has told ministers that the proposal to introduce a violent offender order - similar to sex offender orders but which apply to violent offenders after they have served their sentences - lacks any intellectual rigour and is based on hardly any reasoned argument or analysis.

The orders, which are expected to apply to 300 to 450 offenders a year including teenagers as young as 16, are a cornerstone of the latest criminal justice and immigration bill, which MPs will debate on the day parliament returns in the autumn.

The orders will allow the police to apply to a magistrates court to impose a series of bans and requirements on offenders convicted of serious violent offences and who are believed to remain a danger to the public after they finish their prison terms. The orders will remain in force for a minimum of two years with no statutory maximum and will carry a penalty of up to five years imprisonment if breached.

The possible conditions include banning somebody from having contact with members of their own family if there is a risk of violence, and living in certain areas where victims or known criminal associates reside.

Ministers have also considered making it possible for the orders to include compulsory mental health treatment and attendance of drug or alcohol rehabilitation courses with the penalty of prison for those who fail to comply.

The proposed violent offender orders consider options to cover a range of risk factors: offenders could be banned from entering specific roads or areas such as a town centre where drunken disorder is a problem; people convicted of violence to be made subject to sex offender-style restrictions requiring regular reporting to police to inform of their movements, travel abroad and any development in personal relationships; and individuals could be banned from membership of specified groups and possession of material promoting extremist views.

The judges have privately told ministers that they are unhappy with the thrust of the proposal. They say the range of conditions to be imposed highlights all the problems inherent in the violent offender orders.

"The implications of these orders are that they will place massive restrictions on the liberty, movement, freedom of association and lifestyle of individuals who are not being sentenced for any offence," said Judge David Swift, chairman of the council's criminal subcommittee.

"The orders are said to be purely preventative. The problems of proportionality that have been thrown up by control orders are once again revealed here and do not need rehearsal."

The judges say they do not think the police by themselves should be allowed to apply for such sweeping orders and that professional full-time judges rather than magistrates should decide who they are imposed upon. They are also concerned that no provision appears to have been made to allow for legal representation.

The Ministry of Justice defended the orders saying they are needed to manage the risk posed by offenders still considered potentially violent when they leave prison but who were not awarded an "open-ended" public protection sentence.

Comment: I think that this is quite frightening for civil liberties, that behaviour that does not amount to a criminal offence, can be the subject of a control order by the police, and the courts just used to rubber stamp the decision with the effect of imposing 5 year prison sentences for breach of the control orders. The courts should not be used in this way. It is introducing punishment through the back door without a crime having been committed. It is an attempt to do away with due process. It is paving the way for thought crime. We think that you might commit a crime in the future, so we are punishing you first. Kafkaesque.