Secretary of State for the Home Department v E

JurisdictionEngland & Wales
Judgment Date16 February 2007
Neutral Citation[2007] EWHC 233 (Admin)
Docket NumberCase No: PTA 5/2005
CourtQueen's Bench Division (Administrative Court)
Date16 February 2007

[2007] EWHC 233 (Admin)

IN THE HIGH COURT OF JUSTICE

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr. Justice Beatson

Case No: PTA 5/2005

Between
Secretary of State for the Home Department
Applicant
and
E
Respondent

Mr Robin Tam Q.C., Miss Lisa Giovannetti and Mr Andrew O'Connor (instructed by the Treasury Solicitor) appeared on behalf of the Applicant

Mr Keir Starmer Q.C., and Mr Daniel Friedman (instructed by Messrs Birnberg Peirce) for the Respondent E

Mr Angus McCullough and Mr Neil Sheldon (instructed by the Special Advocates Support Office) appeared as Special Advocates

Mr Rabinder Singh Q.C. and Mr Hugh Southey (instructed by Messrs Birnberg Peirce) for

the family S

1

Hearing dates: 23, 27–30 November 2006

2

INDEX

3

Paragraphs

4

1 Introduction……………………………………………………………..1–7

5

2 E's history……………………………………………………………….8–9

6

3 The issues……………………………………………………………..10–13

7

4 The legislative scheme …………………………………………………………… …14–48

8

5 The terms of E's control order………………………….…………….49–50

9

6 The evidence and findings…………………………………………..51–180

10

(a) The National Security case………………………………………59–96

11

(b) The process for making E's control order……………………..97–106

12

(c) Consideration of the possibility of prosecuting E……………107–124

(d) The obligations in E's control order………………………….125–129

13

(e) Impact on E and his family & the way requests for

14

authorisations and variations were dealt with…………………130–155

(f) The psychiatric evidence………………………………………156–180

15

7 Is there a breach of the Convention requirement of “legal

16

certainty?”………………………………………………………….181–192

17

8 Is there a breach of E's right to liberty under Article 5?………………193–242

18

9 Are the decisions of the Secretary of State to make,

19

renew and maintain E's control order flawed………………………………243–309

20

(a) Has there been a breach of Section 8(2) of the PTA?……………244–266

21

(b) Are the obligations disproportionate to the interferences

22

to the Article 8 rights of E and his family…………………………266–297

23

(c) Has there been procedural unfairness?……………………………….298–306

24

(d) Has there been a breach or potential breach of the

25

Article 3 rights of E's children?………………………………………..307–309

26

10 Remedy…………………………………………………………….310–311

27

11 Conclusion………………………………………………………………312

Beatson J

28

1-Introduction

29

1. E is one of those who was certified under the Anti-Terrorism Crime and Security Act 2001 (“the 2001Act”) and detained in HMP Belmarsh in December 2001. His appeal against certification was dismissed by the Special Immigration Appeal Commission (“SIAC”) on 29 October 2003. His case was one of those considered by the House of Lords in A and others v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68 when it was held that the provisions of the 2001 Act were incompatible with Articles 5 and 14 of the European Convention on Human Rights (“the Convention”). E is one of ten people who had been detained under the 2001 Act in respect of whom control orders were made in March 2005. The orders of eight of the ten were revoked in August 2005 and they are now either detained pending deportation, on bail pending deportation or have left the country.

30

2. The Prevention of Terrorism Act 2005 distinguishes between “derogating” and “non-derogating” control orders. The former impose obligations which are incompatible with the right to liberty under Article 5 of the Convention. They may only be made by the Court, and only if the specified conditions are satisfied. One of these is that there is a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 within section 14 of the Human Rights Act 1998 (the “ HRA”). As there is no designated derogation from Article 5 at present there is no power to make a derogating order. Non-derogating orders are made by the Secretary of State with the permission of the court (except in cases of urgency) and are subject to the supervision by the court pursuant to section 3 of the PTA.

31

3. The control order imposed on E purports to be a non-derogating control order. On 10 June 2005 S, E's wife, launched judicial review proceedings against the Home Secretary on behalf of herself and her children and also applied to be joined as a party to the PTA proceedings concerning the control order.

32

4. This is the third supervisory hearing under section 3 of the PTA but the first full hearing with evidence about the factual issues. The first case, MB, dealt only with the compatibility of the court's jurisdiction under section 3(10) with the right to a fair hearing under Article 6(1) of the Convention. Sullivan J's decision that it was incompatible with Article 6(1) ( [2006] EWHA 1000 (Admin)) was reversed by the Court of Appeal: [2006] EWCA Civ. 1140. The Court of Appeal held that proceedings under the PTA do not amount to the determination of a criminal charge for the purposes of Article 6 and are compatible with the requirements of Article 6 for civil proceedings. The second case, JJ and others, dealt only with whether the restrictions in the control orders imposed on the respondents in that case amounted to a deprivation of liberty within Article 5. Sullivan J held ( [2006] EWHC 1623 (Admin)) that the restrictions in the orders deprived the respondents of their liberty and quashed the orders. His decision was upheld by the Court of Appeal: [2006] EWCA Civ. 1141. Leave to appeal to the House of Lords has been granted in both cases.

33

5. By the time of the hearing before me E's control order had been in force for nineteen months. Accordingly, it was both the hearing required by section 3 of the PTA in relation to the order made on 12 March 2005 and the hearing of E's appeal pursuant to section 10 of the PTA against the renewal of the order. Since section 3(2)(c) of the PTA requires that the substantive hearing at which the court is to supervise a control order is to be “as soon as reasonably practicable after it is made”, some explanation is necessary. Much of the delay is attributable to the fact that on 1 June 2005 E's and other control order cases were stood out to await the judgment of the House of Lords in A and others (No 2) v. Secretary of State for the Home Department [2005] UKHL 71, [2006] 2 AC 221. That case was concerned with whether, and if so in what circumstances, evidence which had been obtained by torture in a foreign state, could be admitted against a party to proceedings in a United Kingdom court. Pending that decision a number of preliminary matters were dealt with: see [2005] EWHC 1669 (Admin.).

34

6. The decision in A and others (No 2) was handed down on 8 December 2005. From February 2006 attempts were made to list the cases of E and that of Mr Abu Rideh, now the only other controlled person previously detained under the 2001 Act. Due to problems with the availability of witnesses and counsel, the hearings were not in fact listed until August 2006. They were then fixed for 20 to 24 November in Mr Abu Rideh's case case, and 27–29 November in E's case. In October the Applicant unsuccessfully sought to vacate the date. A joint skeleton argument on behalf of both E and Mr Abu Rideh was served on 15 November in which the same issues of law were raised. In the event because some of the notes made by Mr Abu Rideh's doctors were not disclosed to the Applicant, on the day the hearing in Mr Abu Rideh's case was due to commence, it was adjourned to 8 January 2007.

35

7. The result of this was that E's hearing took place eleven months after the decision in A and others (No 2), and eight months after the renewal of his control order. Such delays to the substantive hearing in control order cases should not be allowed to occur. Apart from the requirement in the PTA that the hearing be “as soon as reasonably practicable after” the order is made, there is also the requirement in Article 6 of the Convention of a fair and public hearing “within a reasonable time”. While the complexity of the factual and legal issues are factors in determining what constitutes a reasonable time, so also is what is “at stake” in such cases and the personal circumstances of those adversely affected by the delay. Control orders and the obligations they impose constitute significant coercive action by the state against individuals. Those individuals are entitled to have the legality of that action tested without delay.

36

2-E's history

37

8. E was born in Tunisia on 24 July 1963. On arrival in the United Kingdom in 1994 he claimed asylum. His asylum interview notes refer to his claim as based on membership of ‘Islamic Jihad’ but in his statement in support of his appeal against certification under the 2001 Act E stated this was a translation error and he was referring to the Tunisian Islamic Front (‘FIT’). His claim was refused in January 2001 but he was granted exceptional leave to remain until 2005. He is married to S, who is 32 years old and of Jordanian descent. They have four young children now aged between 7 and 1 year. At the time of the hearing S was 5 months pregnant.

38

As far as E's position in Tunisia is concerned, on 16 July 2003 he was convicted in absentia by a Tunisian military court for putting himself at the disposal of a terrorist organisation operating abroad. He was sentenced to ten years imprisonment and five years administrative control. On 19 May 2004 he was sentenced to one year's imprisonment and five years administrative control for setting up a group of criminals/terrorists. An internet article dated 15 June 2005 states that he was one of a group of Tunisians tried in absentia and sentenced to a total of 56 years...

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2 books & journal articles
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