The applicant challenged the terms of a non-derogating control order. It was anticipated that unless prevented, he would fight against UK forces in Iraq.
Held: The section allowed the Secretary of State to impose any necessary conditions, but subject to a system of supervision by the courts. The parties now disputed whether the Act gave the applicant an opportuinity to receive a fair hearing. These were civil proceedings, not criminal. The system created did not allow to the courts any proper opportunity to give the subject a fair hearing: ‘Not merely does the Secretary of State have to meet a very low standard of proof whilst being able to deploy the whole of his case, including evidence that would otherwise be inadmissible, the procedure enables to the Secretary of State to place a significant part, and in some cases the significant part of his case, before the court in the absence of the respondent and his legal representatives.’ and ‘In the present case it has not been possible to provide the respondent with even a summary of the closed material. . . The basis for the Security Service’s confidence is wholly contained within the closed material. Without access to that material it is difficult to see how, in reality, the respondent could make any effective challenge to what is, on the open case before him, no more than a bare assertion. ‘
‘Considered individually, features (1) to (6) of the procedure under the Act would not necessarily render the process as a whole unfair for the purposes of Article 6.1. However, it is the combination and cumulative effect of all of these features which is unique and which results in a procedure which is uniquely unfair. The issue can be tested in this way. On the assumption that the court at a hearing under section 3(10) could be persuaded to consider material coming into existence after the decisions under challenge, including the respondent’s answers to the open material and the Special Advocate’s submissions in respect of the closed material, what would be the position if the court, having considered all of the material as at the date of the hearing concluded that:
(a) there was now no reasonable basis for suspecting that the controlee had been involved in terrorism- related activity, or even that, on the balance of probabilities, he had not been so involved, and/or
(b) the control order or all or some of the obligations imposed by it were not necessary for purposes connected with protecting members of the public from a risk of terrorism.
If the Secretary of State’s original decision was not legally flawed upon the basis of the information then available to him, these conclusions would not enable the court to quash the order. It would still be under a duty to ‘decide that the control order is to continue in force’: see subsections 3(12) and (13) above. Such an outcome would be an affront to justice. In the absence of a merits review at the section 3(10) stage, the overall procedure is manifestly ineffective and unfair.’ and
‘I am unable to envisage any circumstances in which, realistically, it would have been possible for the court to conclude that the Secretary of State’s decisions on or about 1st September 2005 were legally flawed upon the basis of the one-sided information then available to him. It follows that I must decide that the control order is to continue in force. However, for the reasons set out above, I am satisfied that the procedures under section 3 of the Act relating to the supervision of the court of non-derogating control orders made by the Secretary of State are incompatible with the respondent’s right to a fair hearing under Article 6.1, and I will make a declaration of incompatibility to that effect under section 4 of the 1998 Act. ‘
Judges:
Sullivan J
Citations:
[2006] EWHC 1000 (Admin), [2006] HRLR 878
Links:
Statutes:
Prevention of Terrorism Act 2005 3, Terrorism Act 2000 81, Human Rights Act 1998, European Convention on Human Rights 6.1 88
Jurisdiction:
England and Wales
Citing:
Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Cited – A, X and Y, and others v Secretary of State for the Home Department CA 25-Oct-2002
The applicant challenged regulations brought in by the respondent providing for foreigners suspected of terrorism to be detained where a British national suspect would not have been detained. The respondent had issued a derogation from the . .
Cited – Engel And Others v The Netherlands (1) ECHR 8-Jun-1976
The court was asked whether proceedings in a military court against soldiers for disciplinary offences involved criminal charges within the meaning of Article 6(1): ‘In this connection, it is first necessary to know whether the provision(s) defining . .
Cited – In re S (Minors) (Care Order: Implementation of Care Plan) HL 14-Mar-2002
Section 3(1) of the 1998 Act is not available where the suggested interpretation is contrary to express statutory words or is by implication necessarily contradicted by the statute. The judge’s task is to interpret, not to legislate. The proposed . .
Cited – Bryan v The United Kingdom ECHR 22-Nov-1995
Bryan was a farmer at Warrington in Cheshire. He built two brick buildings on land in a conservation area without planning permission and the planning authority served an enforcement notice for their demolition. He appealed on grounds (a) (that . .
Cited – Zumtobel v Austria ECHR 21-Sep-1993
The Zumtobel partnership objected to the compulsory purchase of their farming land to build the L52 by-pass road in the Austrian Vorarlberg. The appropriate Government committee heard their objections but confirmed the order. They appealed to an . .
Cited – Runa Begum v London Borough of Tower Hamlets (First Secretary of State intervening) HL 13-Feb-2003
The appellant challenged the procedure for reviewing a decision made as to the suitability of accomodation offered to her after the respondent had accepted her as being homeless. The procedure involved a review by an officer of the council, with an . .
Cited – O’Hara v Chief Constable of the Royal Ulster Constabulary HL 21-Nov-1996
Second Hand Knowledge Supports Resaobnable Belief
The plaintiff had been arrested on the basis of the 1984 Act. The officer had no particular knowledge of the plaintiff’s involvement, relying on a briefing which led to the arrest.
Held: A reasonable suspicion upon which an arrest was founded . .
Cited – Roberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Cited by:
Cited – Secretary of State for the Home Department v JJ and others Admn 28-Jun-2006
The claimants challenged the terms of restrictions placed upon them under the Act. . .
Lists of cited by and citing cases may be incomplete.
Crime, Human Rights
Updated: 06 August 2022; Ref: scu.241650