UK High Court deals another blow to ailing control orders regime
By Craig Sisterson

THE BRITISH Government’s controversial control orders regime has been dealt another major blow as a landmark ruling by the UK High Court has paved the way for two former terrorism suspects, held under virtual house arrest for more than three years based on ‘secret’ evidence, to sue for damages.

In Secretary of State for the Home Department v AF [2010] EWHC 42, Justice Silber formally quashed with retrospective effect control orders imposed on two men, identified only as AF and AE. Justice Silber also concluded that:
• In principle, in any claim for damages by controlees against the Secretary of State, the requirement outlined by the House of Lords in Secretary of State for the Home Department v AF (No 3) [2009] 3 WLR 74, that controlees must be provided with sufficient information on the cases against them, would also apply; and
• That the Secretary of State should pay the outstanding legal costs of the controlees, on a standard basis.

Control orders were introduced as an emergency measure under the Prevention of Terrorism Act 2005, after the House of Lords declared the previous Government policy of detaining terrorism suspects without charge or trial to be in breach of human rights obligations. Control orders allow the Home Secretary to impose restrictions on anyone suspected of involvement in terrorism-related activity. Restrictions can include house curfews, control of Internet and phone access, electronic tagging, travel bans, and bans on associating with specified people. The much-criticised system was designed to allow the Home Secretary to restrict suspects’ movements where it was claimed a trial was not possible due to the danger of compromising intelligence sources.

AE, an imam to the Iraqi community in a northern England town, was served on 18 May 2006 with a control order which included electronic tagging and an 18-hour curfew. This was later replaced with orders imposing 14 or 16-hour curfews, following court decisions that control orders including curfews of 18-hour length constituted deprivations of liberty (decisions upheld by the House of Lords in Secretary of State for Home Department v JJ and Others [2008] 1 AC 385). The security service alleged there was ‘secret’ evidence that AE had received terrorist training and taken part in terrorist activities. AF, a dual British and Libyan national born in England, had been subject to similar control orders since 2 June 2006 due to alleged links with Islamic terrorists, again based upon ‘secret’ evidence.

The case before Justice Silber followed the decision of the House of Lords last June in relation to AF and AE, and another controlee, AN. In Secretary of State for the Home Department v AF (No 3), nine Law Lords unanimously held that where, in the interests of national security, the Secretary of State relied on closed material in a hearing under section 3(10) of the Prevention of Terrorism Act to justify his decision to make a control order, article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as scheduled to the Human Rights Act 1998 (UK), would not be satisfied unless controlees were given sufficient information on the cases against them to enable them to give effective instructions to the special counsel appointed to represent them. In the months following that decision, the Home Secretary decided to revoke the control orders in question, rather than provide the controlees with any of the alleged evidence against them.

Justice Silber noted (at [8]) that “the unwillingness of the Secretary of State to give disclosure of closed material is very significant”. He reviewed prior case law and found six factors which “individually or cumulatively” supported a conclusion that the control orders should be quashed. “The critical factor was that the authorities show that decisions are void and so should be quashed if they are made in breach of the rules of natural justice such as where one party does not know the case against him or her” (at [80]).

Although Justice Silber retrospectively quashed the control orders, opening the door for AF and AE to sue for damages, he cautioned that although “the controlees might well be successful” in a damages claim, any “damages payable might not be large” – perhaps of a similar quantum to a €3,900 compensation award made by the European Court of Human Rights for unlawful detention under a scheme devised in good faith as an attempt to curb terrorism (at [94]).

While Opposition politicians and civil liberties groups have hailed Justice Silber’s decision, the Home Secretary has announced he will appeal.