Secretary of State for the Home Department v AF AM and AN etc: CA 17 Oct 2008

The claimants were subject to non-derogating control orders, being non EU nationals suspected of terrorism. They now said that they had not had a compatible hearing as to the issue of whether they were in fact involved in terrorist activity.
Held: Applying MB, ‘it is wrong to say that a hearing of the critical issue will always be fair in a case where some or all of the allegations and evidence are not disclosed to the controlee provided that a special advocate is appointed’ and ‘it cannot be held that a hearing will never be fair unless all the substantial allegations and evidence relating to them are disclosed.’ The question in each case is whether there has been significant injustice to the controlee. There was some flexibiity and co-operation between the special advocates and the respondent as to the freedom to speak to the controlee after closed evidence had been disclosed. Each case must be judged according to its circumstances. A hearing need not infringe controlee’s rights, but steps must be taken as far as possible the to achieve fairness. The results of these appeals are that the appeal of AE is dismissed, while the appeals of the SSHD are allowed in the cases of AN and AF but dismissed in the case of AM. The cases of AN and AF are remitted. (Sedley LJ dissenting)

Sir Anthony Clarke MR, Waller LJ VP, Sedley LJ
[2008] EWCA Civ 1148, Times 29-Oct-2008, [2009] UKHRR 176, [2009] 2 All ER 602, [2009] ACD 7, [2009] HRLR 4, [2009] 2 WLR 423
Prevention of Terrorism Act 2005, European Convention on Human Rights 6
England and Wales
CitedSecretary of State for the Home Department v JJ and others CA 1-Aug-2006
The applicants had challenged non-derogating control orders restricting his liberty on the basis that he was suspected of terrorist intentions. The Home Secretary appealed an order finding the restrictions to be unlawful.
Held: The Home . .
CitedSecretary of State for the Home Department v MB; Same v AF HL 31-Oct-2007
Non-derogating control orders – HR Compliant
MB and AF challenged non-derogating control orders made under the 2005 Act, saying that they were incompatible with their human rights. AF was subject to a curfew of 14 hours a day, wore an electronic tag at all times, could not leave a nine square . .
CitedChahal v The United Kingdom ECHR 15-Nov-1996
Proper Reply Opportunity Required on Deportation
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .
CitedCharkaoui v Minister of Citizenship and Immigration 23-Feb-2007
(Supreme Court of Canada) The court considered the procedure for immigration appeals involving the use of evidence not to be given to the applicant.
Held: The statutory procedures for reviewing certificates of inadmissibility to Canada and . .
CitedSecretary of State for the Home Department v E and Another HL 31-Oct-2007
The applicant, who was subject to a control order, complained that the respondent had failed as required to keep under review the possibility of a prosecution, and had renewed the order without satisfying that requirement.
Held: The appeal . .
CitedFeldbrugge v The Netherlands ECHR 29-May-1986
The court was asked whether the applicant’s entitlement to a statutory sickness allowance, which was a contributory scheme but for which she had not registered due to illness, was a civil right within the meaning of article 6.
Held: The . .
CitedMurray v The United Kingdom ECHR 28-Oct-1994
The Army’s powers of arrest in Northern Ireland, did not breach the European Convention on Human Rights. . .
CitedVan Mechelen And Others v The Netherlands ECHR 23-Apr-1997
A Dutch court had convicted the applicants of attempted manslaughter and robbery on the basis of statements made, before their trial, by anonymous police officers, none of whom gave evidence before the Regional Court or the investigating judge. The . .
CitedAl-Nashif v Bulgaria ECHR 20-Jun-2002
Hudoc Judgment (Merits and just satisfaction) Preliminary objections dismissed (non-exhaustion, abuse of right of petition); Violation of Art. 5-4; Violation of Art. 8; Violation of Art. 13; Not necessary to . .
CitedTinnelly and Sons Ltd and Others and McElduff and Others v United Kingdom ECHR 10-Jul-1998
Legislation which disallowed claimants who asserted that they had been discriminated against, on the grounds of their religious background, from appealing through the courts system, was a clear breach of their human rights. A limitation will not be . .
CitedJasper v The United Kingdom ECHR 16-Feb-2000
Grand Chamber – The defendants had been convicted after the prosecution had withheld evidence from them and from the judge under public interest immunity certificates. They complained that they had not had fair trials.
Held: The right was . .
CitedFox, Campbell and Hartley v The United Kingdom ECHR 30-Aug-1990
The court considered the required basis for a reasonable suspicion to found an arrest without a warrant: ‘The ‘reasonableness’ of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and . .

Cited by:
CitedRoberts, Regina (on the Application of) v The Parole Board Admn 7-Nov-2008
The prisoner was sentenced to life imprisonment for the murder of three police officers in 1966. He served a longer time than the recommended minimum and had been transferred to an open prison anticipating release on licence. He now complained of . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Human Rights

Updated: 01 November 2021; Ref: scu.276977