(Grand Chamber) The applicants had been subjected to severe restrictions. They were foreign nationals suspected of terrorist involvement, but could not be deported for fear of being tortured. The UK had derogated from the Convention to put the restrictions in place. Assurances had been given by the home nations that on return they would not be tortured.
Held: The severe and indefinite movement restrictions amounted to a detention which was not applied to nationals and amounted to an unlawful discrimination. Equally, protection against torture was a fundamental principle of the Convention. The government faced an acute need to prevent terrorist acts, and faced a real threat. There had been a violation of articles 5.1 and 5.5 in all cases, and of 5.4 in respect of four but not five.
The controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or sources of the evidence forming the basis of the allegations.
The requirement of procedural fairness under Article 5(4): ‘does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. Although it is not always necessary that an Article 5(4) procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question.
Thus, the proceedings must be adversarial and must always ensure ‘equality of arms’ between the parties. An oral hearing may be necessary, for example in cases of detention on remand. Moreover, in remand cases since the persistence of a reasonable suspicion that the accused person has committed an offence is a condition sine qua non for the lawfulness of the continued detention, the detainee must be given an opportunity effectively to challenge the basis of the allegations against him. This may require the court to hear witnesses whose testimony appears prima facie to have a material bearing on the continuing lawfulness of the detention. It may also require that the detainee or his representative be given access to documents in the case file which form the basis of the prosecution against him.
The court has held nonetheless that, even in proceedings under Article 6 for the determination of guilt on criminal charges, there may be restrictions on the right to a fully adversarial procedure where strictly necessary in the light of a strong countervailing public interest, such as national security, the need to keep secret certain police methods of investigation or the protection of the fundamental rights of another person. There will not be a fair trial, However, unless any difficulties caused to the defendant by a limitation on his rights are sufficiently counter balanced by the procedures followed by the judicial authorities.’
J-P Costa, President, and Judges C. Rozakis, Sir Nicolas Bratza, F. Tulkens, J. Casadevall, G. Bonello, I. Cabral Barreto, E. Steiner, L. Garlicki, K. Hajiyev, L. Mijovic etc
[2009] ECHR 301, 3455/05, 26 BHRC 1, (2009) 49 EHRR 29
Bailii, Bailii, Times
European Convention on Human Rights 3 5.1 5.4, Anti-Terrorism, Crime and Security Act 2001
Human Rights
Citing:
See Also – A and Others v The United Kingdom ECHR 21-Jan-2008
The court addressed the extent to which the admission of closed material was compatible with the fair hearing requirements of article 5.4, challenging lawfulness of detention, which imported the same rights as article 6.1 in its criminal aspect. The . .
See Also – A and others v The United Kingdom ECHR 21-May-2008
The court considered complaints by the applicants as to the system of control orders imposed on them. . .
Cited by:
Cited – AB and Others v Ministry of Defence QBD 5-Jun-2009
Former members of the armed forces and others claimed damages for personal injuries, claiming that they had been obliged to expose themselves to the effects of atomic bomb explosions in the 1950s. The defendant argued that the claims were now out of . .
Cited – Tariq v The Home Office EAT 16-Oct-2009
EAT PRACTICE AND PROCEDURE
Disclosure
HUMAN RIGHTS
(1) The procedure sanctioned by rule 54 of the Employment Tribunals Rules of Procedure, and by the Employment Tribunals (National Security) Rules . .
Cited – Bank Mellat v Her Majesty’s Treasury CA 4-May-2010
The claimants sought damages after being made subject of orders under the 2009 Order. Both parties appealed against an order (partly closed) allowing some but restricting other disclosure and use against the claimants in court of evidence which they . .
Cited – S v Northampton Crown Court and Another Admn 7-May-2010
S faced serious charges of defrauding Customs and Excise. After allegations of jury tampering came to light, a decision was made for trial by judge alone, and his bail was revoked. He now sought judicial review of the refusal of bail. He challenged . .
Cited – Kambadzi (previously referred to as SK (Zimbabwe)) v Secretary of State for The Home Department SC 25-May-2011
False Imprisonment Damages / Immigration Detention
The respondent had held the claimant in custody, but had failed to follow its own procedures. The claimant appealed against the rejection of his claim of false imprisonment. He had overstayed his immigration leave, and after convictions had served a . .
Cited – Home Office v Tariq SC 13-Jul-2011
(JUSTICE intervening) The claimant pursued Employment Tribunal proceedings against the Immigration Service when his security clearance was withdrawn. The Tribunal allowed the respondent to use a closed material procedure under which it was provided . .
Cited – Cart and Others, Regina (on The Application of) v The Upper Tribunal and Others Admn 1-Dec-2009
The court was asked whether the supervisory jurisdiction of the High Court, exercisable by way of judicial review, extends to such decisions of the Special Immigration Appeals Commission (SIAC) and the Upper Tribunal (UT) as are not amenable to any . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 1) SC 19-Jun-2013
Closed Material before Supreme Court
Under the 2009 order, the appellant Bank had been effectively shut down as to its operations within the UK. It sought to use the appeal procedure, and now objected to the use of closed material procedure. The Supreme Court asked itself whether it . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 1) SC 19-Jun-2013
Closed Material before Supreme Court
Under the 2009 order, the appellant Bank had been effectively shut down as to its operations within the UK. It sought to use the appeal procedure, and now objected to the use of closed material procedure. The Supreme Court asked itself whether it . .
Cited – Belhaj and Another v Director of Public Prosecutions and Another SC 4-Jul-2018
Challenge to decision not to prosecute senior Intelligence Service officials for alleged offences in connection with his unlawful rendition and mistreatment in Libya. The issue here was whether on the hearing of the application for judicial review, . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Crime
Leading Case
Updated: 10 November 2021; Ref: scu.332838