Secretary of State for the Home Department v MB and AF

The House considered the lawfulness of non-derogating control orders made under the Prevention of Terrorism Act 2005, focussing on (i) whether the cumulative obligations could amount to a deprivation of liberty for the purposes of Article 5 ECHR, (ii) whether control order proceedings are the determination of a criminal charge under Article 6 ECHR, and (iii) whether the use of closed material and the special advocate procedure can secure a fair hearing under Article 6.

The House held that, as a matter of Convention and domestic law, non-derogating control orders are, in substance, civil and preventative rather than criminal; however where the restrictions are very severe the civil limb attracts procedural protections commensurate with the gravity of the consequences. It was further held that many control‑order reviews conducted with closed material and the assistance of special advocates can meet Article 6, but that reliance on closed material may in some cases so impair the essence of a fair hearing that the order cannot be sustained.

Applied to the facts: the House concluded that AF's fourteen‑hour curfew and associated conditions did not, on the authorities and on balance, amount to a deprivation of liberty; but both MB's and AF's control‑order reviews involved a case in which the essence of the case against them lay in closed material which the controlled person could not effectively challenge. The proper remedy was to read and apply the statutory scheme compatibly with Article 6 where possible and to remit the cases for reconsideration rather than to make a general declaration of incompatibility.

This appeal concerned reviews of non‑derogating control orders made under the Prevention of Terrorism Act 2005 against MB and AF. Both respondents were subject to control orders supported largely by closed material withheld on public‑interest grounds; special advocates were appointed to represent their interests in closed hearings. MB challenged the fairness of his review before Sullivan J; the judge found a breach of Article 6 and made a declaration of incompatibility. The Court of Appeal set aside that declaration. AF succeeded at first instance on a ground that the control order amounted to a deprivation of liberty; the Secretary of State appealed the deprivation point and AF cross‑appealed the Article 6 rulings. Both cases were granted direct permission to the House.

Nature of the applications: judicial review/review hearings of the lawfulness of control orders under sections 2, 3 and 4 of the Prevention of Terrorism Act 2005. Relief sought included quashing of orders and declarations of incompatibility with the European Convention on Human Rights.

Issues framed by the House:

• whether the cumulative restrictions in a control order may amount to a deprivation of liberty under Article 5;
• whether, if there is deprivation but the Secretary of State had reasonable grounds and necessity, the court should quash the whole order or adjust obligations;
• whether non‑derogating control order proceedings amount to a "criminal charge" for Article 6;
• whether the statutory procedural scheme permitting closed material and use of special advocates is compatible with Article 6 where the essence of the case is undisclosed to the controlled person.

Reasoning and outcome in brief: the House analysed Strasbourg and domestic authority and concluded that (i) control orders are generally civil, preventative measures and do not necessarily constitute a criminal charge, though the gravity of potential consequences means enhanced procedural protections are required; (ii) on the facts AF's fourteen‑hour curfew and other obligations did not, on balance, constitute a deprivation of liberty; (iii) the statutory scheme permitting closed material and special advocates can in principle provide adequate safeguards, but it will not always do so — where closed material is essential and cannot be gisted or otherwise conveyed so as to permit effective challenge, fairness will be impaired; (iv) rather than immediate declarations of incompatibility, the Court should, where possible, read and apply the statute compatibly (reading‑down) and remit the cases for reconsideration in light of the House's guidance.

This was an appellate determination. The House held in summary that (a) non‑derogating control orders are civil, preventative measures and do not in themselves constitute a criminal charge under Article 6, but the civil limb requires procedural protections proportionate to the gravity of the consequences; (b) AF's control order did not amount to a deprivation of liberty under Article 5 on the facts before the House; (c) the use of closed material and the special advocate procedure can, in many cases, satisfy Article 6 but may in exceptional cases leave the controlled person without the essence of a fair hearing; (d) where closed material is essential and cannot be rendered in a form permitting effective challenge the court must be able to withhold reliance on that material and quash or modify the order. Applying those principles, the House read and would apply the statutory scheme compatibly where possible and remitted the cases for reconsideration by the courts rather than issuing a blanket declaration of incompatibility in each case.

Sullivan J (Administrative Court) reviewed MB's control order and declared s.3 of the Prevention of Terrorism Act 2005 incompatible ([2006] EWHC 1000 (Admin)). The Court of Appeal ([2006] EWCA Civ 1140) set aside that declaration. Ouseley J (Administrative Court) quashed AF's order ([2007] EWHC 651 (Admin)); both sides were granted leapfrog permission to appeal to the House. The House of Lords delivered judgment on 31 October 2007 ([2007] UKHL 46).