Secretary of State for the Home Department, R (on the application of) v BC & Anor

Article 6 applies to control-order proceedings where the order directly restricts an individual’s rights and freedoms. The fact that the obligations are described as light does not avoid Article 6 or reduce the minimum disclosure required for a fair hearing.

The controlled person must receive sufficient information about the allegations to enable effective instructions to be given to the special advocate. The open material cannot consist only of general assertions where the decision depends to a decisive degree on closed material. The amount of information required varies with the case, but the irreducible minimum cannot be removed by tailoring the order to impose less restrictive obligations.

BC and BB were made subject to control orders in February 2009. Following AF (No 3) [2009] 3 WLR 74, Mitting J decided that further disclosure was required. The Secretary of State considered disclosure impossible on national-security grounds, revoked the orders and made replacement orders on 9 October 2009 containing less restrictive obligations.

The Secretary of State argued that the new obligations did not engage Article 6 or, alternatively, that the special-advocate procedure provided sufficient safeguards without further disclosure. The central issues were whether Article 6 applied and whether its minimum disclosure requirements varied because the obligations were less severe.

1. Article 6 applied. The replacement control orders directly restricted the defendants’ private lives, movement and association. The effects were neither incidental nor merely consequences of immigration control. The orders also affected reputation and potentially Convention rights implemented as domestic civil rights by the Human Rights Act 1998. The reasoning in Re S (Minors) [2002] AC 291, supported by R (McCann) v Manchester Crown Court [2003] 1 AC 787, was treated as powerful support for that conclusion.
2. The distinction drawn in Maaouia v France [2000] 33 EHRR 1037 between direct effects and incidental repercussions did not assist the Secretary of State. Control orders are intended to restrict the subject’s ordinary rights and therefore have a direct effect.
3. The minimum fairness requirement identified in AF (No 3) [2009] 3 WLR 74 applied to every control order. The controlled person must be told enough of the case to enable effective instructions to the special advocate. General assertions alone are insufficient where the decision rests solely or decisively on closed material.
4. The obligations to reside at a specified address, report daily, give advance notice of overnight absences, surrender travel documents and observe travel and association restrictions were sufficiently serious. Their description as light could not remove Article 6 or justify reliance on the special advocate procedure alone.
5. The court granted permission to appeal. The section 3(10) proceedings and costs arrangements were left subject to further directions and any appeal.

• Administrative Court: Mitting J considered the earlier control orders on 5 October 2009 and decided that further disclosure was required following AF (No 3) [2009] 3 WLR 74.
• Administrative Court: Collins J ruled on the preliminary Article 6 issue in the replacement orders and granted permission to appeal.