AH v Secretary of State for the Home Department

In control-order proceedings, Article 6 fairness requires disclosure sufficient to enable the controlee to give effective instructions on the allegations. Detailed evidence and sources need not be disclosed where their essential features are provided, but general assertions supported solely or decisively by closed material are insufficient. This principle, identified as the ratio of Secretary of State for the Home Department v AF (No.3) [2010] 2 AC, governed the appeal. Article 5 deprivation of liberty is assessed objectively by examining cumulative impact, with curfew length as the core starting point and social isolation as significant. A restriction affecting family life may be relevant and decisive even without an Article 8 breach. Appellate courts should respect careful, rational assessments by specialist Administrative Court judges.

AH appealed against Mitting J’s dismissal of his appeals concerning a control order made in August 2006 and renewed in July 2007. The order imposed a 14-hour curfew and other restrictions, later relaxed in April 2008. The Administrative Court rejected challenges based on procedural fairness, the Secretary of State’s terrorism-related suspicions and deprivation of liberty under Article 5. The order was later revoked, but the appeal remained live because of AH’s continuing interest in establishing unlawfulness and a potential damages claim.

The Court of Appeal considered whether the disclosure enabled AH to give effective instructions under Article 6 and whether the cumulative control-order obligations amounted to a deprivation of liberty under Article 5.

Appeal dismissed. Maurice Kay LJ gave the judgment, with Carnwath LJ and Hallett LJ agreeing.

1. Under Article 6, the controlee must receive sufficient information about the allegations to enable effective instructions. The detailed evidence and its sources need not be disclosed if the essential features of the allegations are provided. Conversely, general assertions combined with a case based solely, or to a decisive degree, on closed material will not satisfy fairness. The court treated the relevant passage in Secretary of State for the Home Department v AF (No.3) [2010] 2 AC as that case’s ratio and regarded it as the authoritative interpretation of A v United Kingdom (2009) 49 EHRR 29.
2. The disclosure in relation to the three grounds relied on by Mitting J enabled AH to give detailed instructions, statements and evidence, and enabled the Special Advocates to challenge the Secretary of State’s case. The first ground had been treated as borderline and was excluded from the overall assessment. The fact that AH’s account was rejected partly because of closed material did not establish unfairness. The risk that detailed evidence may conflict with closed material and lead to an adverse credibility finding is inherent in the procedure. A judge may also consider whether there is an alternative explanation for alleged suppression or lying; this was a proper Lucas-type direction, not an application of a supposed “makes no difference” exception.
3. The Article 5 inquiry is objective and fact-sensitive. There is no bright line between deprivation and restriction of liberty. Curfew length is the core starting point, but social isolation and the cumulative effect of all the conditions must be assessed. Following AP v Secretary of State for the Home Department [2010] UKSC 24, [2010] 3 WLR 51, restrictions relevant to family life may be relevant and decisive even without an Article 8 breach.
4. Mitting J had considered the high degree of social isolation, the absence of AH’s wife, tagging, searches, enforcement consequences, psychiatric evidence and the later relaxation of the order. His conclusion that the case fell just on the restriction-of-liberty side of the line was careful, rational and lawful. The appellate court also respected the specialist expertise of Administrative Court judges in control-order cases. No basis for interference was established.

• Court of Appeal (Civil Division) dismissed AH’s appeal on 6 July 2011.
• Queen’s Bench Division, Administrative Court Mitting J dismissed AH’s appeals against the making and renewal of the control order on 9 May 2008.