Control order-related provisions in the Counter-Terrorism Act 2008 and the Crime and Security Act 2010
Provision relating to powers of entry and search
9.Section 78 of the Counter-Terrorism Act 2008 amended the 2005 Act to add sections 7A, 7B and 7C to the 2005 Act, which comprised powers for a constable to enter and search premises relating to controlled individuals in specified circumstances for specified purposes. These powers were commenced but are repealed by the Act. (Previously, the 2005 Act provided only limited specific powers of entry and search for the police, relating to service of the control order. It also made explicit provision that an obligation could be imposed on a controlled person requiring him or her to allow the police access to his or her premises and to allow searches of his or her premises for compliance purposes.)
10.The 2005 Act did not make express provision that the Secretary of State may impose an obligation on the individual to submit to a search of his or her person. However, given that it provided that the list of types of obligations it included in section 1 was indicative rather than exhaustive, control order obligations used to refer to searches of the individual as well as the premises. But in July 2009, the Court of Appeal in the case of Secretary of State for the Home Department v GG [2009] EWCA Civ 786 held that the 2005 Act did not provide the power to impose an obligation in a control order to submit to a personal search. In November 2009, the High Court in the case of BH v Secretary of State for the Home Department [2009] EWHC 2938 (Admin) found that a requirement for a controlled person to submit to a personal search prior to being escorted by the police outside the controlled person’s boundary, as a condition of the temporary relaxation of the controlled individual’s boundary, had no statutory authority and was unenforceable.
11.Consequently, section 56 of the 2010 Act further amended the 2005 Act by adding new sections 7D and 7E to the 2005 Act, which introduced new powers allowing a constable, for specified purposes, to conduct a search of a person subject to a control order and to seize and retain articles found. These powers were not commenced, pending the outcome of the Coalition Government’s review of control orders (see below) and are repealed by the Act.