Secretary of State for the Home Department, R (on the application of) v BC & Anor [2009] EWHC 2927 (Admin) (11 November 2009)

Secretary of State for the Home Department, R (on the application of) v BC & Anor [2009] EWHC 2927 (Admin) (11 November 2009)

Article 6 ECHR applies to the control orders imposed on BB and BC because the obligations, though lighter than previous orders, directly and significantly affect their civil rights, including rights to private life, movement, and association. The irreducible minimum of disclosure required by Article 6, as established in AF (No 3) and A v United Kingdom, must be met regardless of the severity of the restrictions. The special advocate procedure alone does not satisfy Article 6 unless the controlee is given sufficient information to enable effective instructions in response to the allegations.

Citation
[2009] EWHC 2927 (Admin)
Parties
Claimant: Secretary of State for the Home Department; Defendant: BC; Defendant: BB
Jurisdiction
England and Wales
Judgment Date
11 November 2009
Procedural Posture
Judicial Review (control Orders) / Preliminary Ruling on Article 6 ECHR Applicability and Disclosure Requirements
Outcome
Preliminary ruling: Article 6 ECHR applies to the control orders; minimum disclosure requirements must be met.
Legal Topics
Control Orders, Article 6 ECHR, Fair Trial Rights, Disclosure Obligations, Special Advocate Procedure
Public Law Human Rights Law National Security Law Control Orders Article 6 ECHR Fair Trial Rights Disclosure Obligations Special Advocate Procedure

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Parties

Secretary of State for the Home Department

Claimant

BC

Defendant

BB

Defendant

Procedural Posture

Judicial Review (control Orders) / Preliminary Ruling on Article 6 ECHR Applicability and Disclosure Requirements

Legal Issues

  1. 1 Does Article 6 ECHR apply to the control orders imposed on BB and BC?
  2. 2 If Article 6 applies, what is the minimum disclosure required to ensure a fair hearing under Article 6?
  3. 3 Are the obligations in the current control orders sufficiently light to avoid the application of Article 6 or its disclosure requirements?

Ratio Decidendi

Article 6 ECHR applies to the control orders imposed on BB and BC because the obligations, though lighter than previous orders, directly and significantly affect their civil rights, including rights to private life, movement, and association. The irreducible minimum of disclosure required by Article 6, as established in AF (No 3) and A v United Kingdom, must be met regardless of the severity of the restrictions. The special advocate procedure alone does not satisfy Article 6 unless the controlee is given sufficient information to enable effective instructions in response to the allegations.

Court Disposition

Preliminary ruling: Article 6 ECHR applies to the control orders; minimum disclosure requirements must be met.

Orders

  • The hearing under section 3(10) of the Prevention of Terrorism Act 2005 is to proceed only if the minimum disclosure required by Article 6 is provided to the controlees.
  • If the Secretary of State cannot provide such disclosure, the orders cannot be maintained as compliant with Article 6.