Quillets of the law:

Prisons without bars: The Death of Akhtar Uddin

Please note this post briefly discusses suicide and self harm.

Akhtar Uddin was “loved and loving” in the words of the coroner Mr Bernard Richmond, KC who presided over the inquest into his death.1 But he was “not someone without his troubles” which included drug use and undiagnosed mental health issues.1 The inquest jury concluded the 35 year old builder died as the result of his own actions while serving a 2 year sentence in HMP Wandswoth on Christmas Day 2021.

He was sentenced as a result of a violation of a little known executive counter terrorism measure called a Terrorism Prevention and Investigation Measures (TPIM). His death followed a visit to the prison by counter terrorism officers, informing him that as soon as he was released from prison another TPIM would be issued against him.1

The inquest jury made the following conclusions:1

The Coroner stated he would be issuing a report on how to prevent further deaths from occurring as the result of the risk to TPIM subjects which would be sent to the government.1 This is in light of the fact annual reviews of terrorism legislation have noted that a TPIM subjects suffer from poor mental health and or are neurodivergent.1

TPIMs allow the government to impose restrictions on they individuals believed were involved with terrorism but could not be convicted of a crime. For many, TPIMs sound strange, How can the government place restrictions on individuals if they can’t prove they are terrorists? Why should the government have the ability to do this? The answer begins in 2001, with internment.

TPIMs- control orders lite or control orders by a different name:

In 2001, a dozen men were detained and taken to HMP Belmarsh, as the result of anti-terrorism legislation passed in the wake of 9/11 because they were allegedly involved with terrorism.2 These men were to be detained indefinitely without charge or trial not because of anything they could be proven to have done, but because they were deemed a risk according to evidence that had to remain a secret.2 Internment was eventually ruled unlawful because it was neither proportionate to the security risk facing the UK after 9/11 and was discriminatory because it could only be imposed on foreign nationals.3

But the mistreatment of the internees didn’t end when internment was ruled unlawful, they were instead subject to control orders. Control orders were designed to be a ‘prison without bars’4 and were also imposed because of alleged involvement with terrorism.2 Gareth Pierce, a lawyer who represented many of the internees describes the impact of the conditions of the control orders these men were subject to, in her book Dispatches from the Dark side:2

“The electronic tag that the men were obliged to wear which registered every entry and exit from the house, was only one elements of a family’s altered existence. A voice recognition system, used to confirm the detainee’s presence at home during curfew, was activated by machines of US manufacture, which often failed to recognise the accents of Arabic speakers, with the result that uniformed police officers would enter the house in significant numbers at all times of the day and night. No visitor would come near their homes because to enter they would first to ve vetted by the Home Office. Children whose coursework at school involved the internet could not meet the school’s requirements. The internet was forbidden. Families had endlessly to involve lawyers in the most trivial matters: to obtain permission to go into the garden; to attend a parent-teacher meeting; to arrange for a plumber to enter the house”

They could also be forced to relocate hundreds of miles from their homes, further compounding their isolation. They were subject to control of their employment and spending. But these measures came to end quickly for the interned men because after the 7/7 attacks the government deported them to their home countries subject to assurances they wouldn’t be tortured.2 These assurances were meaningless, a number of them were detained and tortured anyway.2

Control orders however, were not limited to the former internees, as the government began to use them on a wider group of people including British citizens. It was these subjects who eventually benefited from the courts ruling control orders unlawful because they too violated the human rights of those subject to them.5

The Terrorism Prevention and Investigative Measures Act 2011:

Following the 2010 election, the coalition government replaced control orders with TPIMs.6 TPIMs according to the government, were meant to better respect the human rights of subjects while also allowing the government to manage the risk they posed to the wider public.6 Dozens of people have been subject to TPIMs since 2011 with little attention. Since 2011, the government had amended the TPIM Act making TPIMs more coercive often by reintroducing elements of the old control order legislation that were initially left out of the 2011 act. For the Home Secretary to issue a TPIM, they must have a reasonable suspicion that the subject is involved with terrorism related activity.7

Types of measures that can be imposed in a TPIM:9

Prior judicial permission:

The Home Secretary ordinarily must apply to court prior to issuing a TPIM. The court’s role is to examine whether the decision is obviously flawed, whether to permit the imposition of the specific measures contained in the TPIM and whether to hold a review hearing.9 If the Home Secretary believes the situation is urgent, they are not required to apply for prior court permission, but they must refer the case to the courts for review with a statement as to why the case was deemed urgent.10 The review will then occur in the ordinary way.

These hearings can occur in-camera meaning without the subject or the legal representative.9 The Home secretary is also required to consult with the police to establish whether the subject can be prosecuted prior to issuing a TPIM and the police must continue to investigate with the view of bringing a prosecution after one is issued. 11 Once a TPIM is issued, it becomes a criminal offence to violate any part of its requirements.12

Time limits:

The time limit associated with a TPIM used to be two years, prior to 2021.13 The time limit was increased to 5 years in 2021.14 The Home Secretary can extend a TPIM for up to 1 year after the original expiry date.13 Prior to 2021, the maximum number of times a TPIM could be re-issued (meaning issued again after a prior TPIM has expired) was once.13 That was increased to 4 times after 2021.14 For a TPIM to be re-issued, the subject must have engaged in conduct that meets the definition of terrorism related activity, after the date the prior TPIM was issued.7

TPIM review hearings:

Finally, a TPIM can be subject to review by the courts, applying judicial review principles, after it has been issued.15 This review would include representations by the subject and their legal representatives. This review examines whether the conditions required for a TPIM to be issued are met.15 The court has the power vary the TPIM if a particular measure is not justified or quash the TPIM if the conditions for employing a TPIM aren’t met.15 Otherwise, the court must rule the TPIM is lawful.15

These hearings occur under closed material procedures meaning the government can use evidence that is withheld from the subject and their lawyers to prove that the TPIM was issued lawfully.16 A special advocate is appointed to represent the individual in hearings about the closed evidence but once they receive the secret evidence, they cannot communicate with the subject or their lawyers.16 The government is a requirement to provide a summary of the closed material to allow for the subject to give proper instructions to the special advocate. The special advocate can also argue for greater disclosure to the subject in pre-review hearings. Special advocates themselves have noted that the extent to the summary allows for effective representation remains limited.16

Arbitrariness is the rule…

Mr Uddin’s TPIM was issued because of ‘verbal threats’ and because he ‘associated with people regarded by MI5 as being involved in terrorist activity’1 which is indicative of how broad the power to issue a TPIM is. Mr Uddin’s TPIM was issued prior to the most recent and most coercive amendments to the TPIM act came into force in June of 2021, such as the requirement to undergo polygraph testing.

Mr Uddin did not appeal the decision to issue a TPIM against him in part because he was advised that there were “highly limited prospects” that he would be successful on appeal.1 This reflects both how difficult it is prove a TPIM was issued unlawfully and exposes the nature of closed material procedures- without full knowledge of the evidence and allegations against you, disproving the states case is a difficult task.

It is inherently difficult to understand the governments actions in relation to TPIMs, because they are based on secret intelligence assessments. That is by design, but from the circumstances the decision to reissue the TPIM after Mr Uddin was released, appears odd.

While he violated the TPIM 12 times, the violations are related to purchases of drugs,1 which are not a ground for issuing a TPIM. If he remained engaged with terrorism related activity, that indicates the TPIM was inadequate but such conduct would also have ceased once he went to prison. The question as to why he wasn’t prosecuted for terrorism initially also lucks in the background. If one is inclined to be generous to the government, he likely wasn’t prosecuted because the evidence they had couldn’t be disclosed for national security reasons. If one is inclined to be skeptical of the government, which is supported by the seemingly vague grounds upon which Mr Uddin’s TPIM was issued, he likely wasn’t prosecuted because he hadn’t committed a terrorism offence.

So much is unknown regarding those matters. But the annual reviews of terrorism legislation by the Independent Reviewer for Counter Terrorism Legislation: Jonathan Hall, provides us with some idea.

Hall notes in his 2020 report that a person identified as KG was sentenced to two years imprisonment following pleading guilty to 12 violations of a financial services measure in a TPIM.17 Furthermore, Hall states ‘all but one of the TPIMs in force during 2020 were issued to members of the proscribed organisation, Al-Muhajiroun’.17 KG is listed as the individual subject to a TPIM for reasons other than membership of Al-Muhajiroun.17 Given the low number of TPIMs in force at the time and the lower number of convictions for violating TPIMS, KG is likely Mr Uddin.17.

Hall states the Home office TPIM group, a meeting of those involved with all ongoing TPIM cases, provides a high standard of consideration of each TPIM and ‘adequate time was allowed for a meaningful review of each TPIM.17 Despite this, he argues not enough consideration is given to the passage of time after someone is subject to a TPIM.17 In 2021, Hall stated the chair of the Home Office TPIM group, is robust in their scrutiny of the Security Service but he concedes the Security Service (also known as MI5) ultimately have the most influence on the modification or decision to end a TPIM.18

The TPIM Catch-22.

Readers are likely wondering about the circular logic to TPIMs. If a TPIM is effective, the activity that led to it being issued should have ceased- meaning there is no reason to reissue or extend a TPIMs application unless new activity has occurred which should also be precluded by a TPIM.

This gives rise to what Hall called the TPIM Catch-22, investigators are weary about whether compliance with a TPIM actually reflects an reduction in terrorism risk.17 He notes compliance with a TPIM is likely insufficient to lead to the revocation of a TPIM which means to prove a reduction in risk has occurred, measures in the TPIM may have to be relaxed, leading to concerns about public safety.17 He notes the possibility that open disavowal of terrorism may be sufficient to lead to the lifting of a TPIM but this is difficult to prove especially given that legal aid may not always be provided to TPIM subjects. He repeated this warning about the Catch-22 in his 2021 report.18

Hall in 2020 stated the Catch-22 raises the possibility of a person being ’left with the sole hope that competition for resources means that a TPIM in their case is no longer seen as cost and resource effective’.17

In his 2020 report he noted that a psychologist could assist the TPIM review group when assessing the risk posed by ‘atypical’ individuals.17 In his 2021 report he noted the government accepted his recommendation. The report states ‘people with neurodivergence or poor mental health may welcome and come to rely on professional structured intervention’ which can be required by a TPIM.18

Given the indications from the coroner about his forthcoming report, what if any support Mr Uddin was provided was entirely inadequate. Hall’s conclusion also appears to ignore the negative effects and fear that TPIM subjects may experience as a result of being subject to many of the restrictions they often contain. Gareth Pierce notes in her book that the relocation measures in control orders along with social isolation have a psychologically coercive effect on the subject and their family.2 The same is likely true of the same measures when contained in TPIMs.

While it is impossible to know the closed case against him, Mr Uddin may well have posed a lower risk by comparison to others whom were subject to TPIMs for membership of a proscribed organisation. Furthermore his sisters testimony at the inquest indicates that Mr Uddin was informed that he would never be free of the TPIM by counter terrorism who came to visit him in prison.1 His suffering and fears were compounded by what a governor at HMP Wandsworth accepted was a lack of understanding about the nature of TPIMs by prison staff.

Mr Uddin’s use of drugs was, via the TPIM, converted from something requiring a public health response, to a terrorism offence. The conduct that allowed this was at worse, a combination of speech and association alone. While here are several terrorism and non terrorism offences that can be committed via speech, if Mr Uddin has committed them, prosecution would likely have been more appropriate. The decision to issue a TPIM, given the legal requirement to contemplate prosecution is in my view indicative of the fact that prosecution was not possible.

For Mr Uddin, and possibly for many others, a TPIM was not a proportionate human rights compliant measure as the government claims, but a prison without bars.

…and cruelty is commonplace:

A Prevention of Future Death Report is sent by a Coroner, following an inquest, to those who could take steps to prevent future deaths in the same or similar circumstances to the death at issue. For such a report to be sent to the government, means the inquest judge has determined they could take steps to prevent a death arising from the issuing of a TPIM. It should not have taken the death of Mr Uddin for the government to respond to the mental health impact of TPIMs. Despite Jonathan Hall positive review of measures in TPIMs related to the mental health of subjects, he put the government on notice about the need to adequately consider the mental health of those subject to TPIMs.

But the damage to Mr Uddin and others, is viewed in light of the need to prevent terrorism. Mr Uddin by all accounts has only a tenuous link to terrorism, but even a tenuous link is a link. Yet again, the specter of past atrocities was used to justify harm in the present to prevent potential atrocities in the future. The harm to Mr Uddin, was weighed against the potential of harm to the public, us. Most of that public will recoil from the cruelty of what was done to Mr Uddin. But the government in response to the BBCs request for comment about the matter stated ‘TPIMs were “a last resort to manage the risk posed by terrorists who cannot be prosecuted or deported” and are “carefully considered and strictly focused” on stopping a person’s “involvement in terrorist activity”’.1

Even now, we do not know why the TPIM against Mr Uddin was issued. Even now we the public- on whose behalf the security services claim to be acting on- cannot know whether what they accused him and whether it was true. In doing so the accusation lies in limbo, not confirmed true or false. Such a limbo achieves one outcome: it allows the national security state to obfuscate the truth, to make it unknowable thereby allowing continued justifications of their actions.

It will one day become knowable, to our descendants or descendants descendants. And they will read the formerly secret grounds upon which a TPIM was issued against Mr Uddin alongside the press reporting and the Prevention of Future Death report. These records will act, in the words of Robert Fisk, as ‘a direct and emotional record for people who are not yet alive so that no one can say this didn’t happen. And no one can say we didn’t know, no one told us’.19

  1. https://www.bbc.co.uk/news/articles/c5398lm30pwwo ↩︎ ↩︎ ↩︎ ↩︎ ↩︎ ↩︎ ↩︎ ↩︎ ↩︎ ↩︎ ↩︎

  2. Chapter 3 of Dispatches from the Dark Side by Gareth Pierce ↩︎ ↩︎ ↩︎ ↩︎ ↩︎ ↩︎ ↩︎

  3. https://publications.parliament.uk/pa/ld200506/ldjudgmt/jd051208/aand.pdf ↩︎

  4. https://www.theregister.com/offbeat/2005/03/01/restrict-freedom-to-preserve-liberty-cunning-home-office-plan/1083666 ↩︎

  5. There were a number of cases about the legality of control orders, for a explaination of the main issues see: https://ukhumanrightsblog.com/2011/01/06/control-orders-what-are-they-and-why-do-they-matter/ ↩︎

  6. https://www.legislation.gov.uk/ukpga/2011/23/contents ↩︎ ↩︎

  7. https://www.legislation.gov.uk/ukpga/2011/23/section/3 ↩︎ ↩︎

  8. https://www.legislation.gov.uk/ukpga/2011/23/section/4 ↩︎

  9. https://www.legislation.gov.uk/ukpga/2011/23/schedule/1 ↩︎ ↩︎ ↩︎

  10. https://www.legislation.gov.uk/ukpga/2011/23/section/6 ↩︎

  11. https://www.legislation.gov.uk/ukpga/2011/23/section/10/2013-10-07 ↩︎

  12. https://www.legislation.gov.uk/ukpga/2011/23/section/23 ↩︎

  13. https://www.legislation.gov.uk/ukpga/2011/23/schedule/2 ↩︎ ↩︎ ↩︎

  14. https://www.legislation.gov.uk/ukpga/2011/23/section/5/2011-12-15 ↩︎ ↩︎

  15. https://www.legislation.gov.uk/ukpga/2011/23/section/9/2021-06-29 ↩︎ ↩︎ ↩︎ ↩︎

  16. Special Advocates in the Adversarial System by John Jackson. ↩︎ ↩︎ ↩︎

  17. https://terrorismlegislationreviewer.independent.gov.uk/wp-content/uploads/2022/04/Terrorism-Acts-in-2020.pdf ↩︎ ↩︎ ↩︎ ↩︎ ↩︎ ↩︎ ↩︎ ↩︎ ↩︎ ↩︎

  18. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1140911/E02876111_Terrorism_Acts_in_2021_Accessible.pdf ↩︎ ↩︎ ↩︎

  19. https://www.amazon.co.uk/This-Not-Movie-Robert-Fisk/dp/B08MJ38PQ5 ↩︎