Secretary of State for the Home Department v AF (No 4); Same v an; Same v AE
| Jurisdiction | England & Wales |
| Judgment Date | 28 July 2010 |
| Date | 28 July 2010 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Before Lord Justice Maurice Kay, Lord Justice Rix and Lord Justice Stanley Burnton
Control orders revoked by the Secretary of State for the Home Department as a result of a decision of the House of Lords should have been quashed with effect from the dates they were made, because they were made in violation of the right to a fair trial under the Human Rights Act 1998. In making the orders the secretary of state had withheld the evidence on the basis of which the orders were made.
The Court of Appeal so held allowing an appeal by AN from Mr Justice MittingUNK ([2009] EWHC 1966 (Admin)) directing the Home Secretary to revoke a control order imposed on July 4, 2007, and dismissing appeals by the Home Secretary against the quashing by Mr Justice SilberUNK ([2010] EWHC 42 (Admin)) of control orders against AF and AE.
Miss Dinah Rose, QC and Mr Dan Squires for AN; Mr Timothy Otty, QC and Mr Ali Naseem Bajwa for AE; Mr Timothy Otty, QC, Mr Zubair Ahmad and Mr Tom Hickman for AF; Mr James Eadie, QC, Mr Tim Eicke and Mr Paul Greatorex for the Home Secretary.
LORD JUSTICE MAURICE KAY said that following the decision of the House of Lords in Secretary of State for the Home Department v AF (No 3)TLRWLR (The Times June 11, 2009; [2009] 3 WLR 74) the Home Secretary had elected not to make further disclosure to a number of persons subject to control orders but to revoke the orders then in force.
In further proceedings in the Administrative Court the questions arose: Were the control orders to be quashed with effect from the dates on which they were made or should their revocation only operate prospectively? The point was not academic. AN was facing prosecution for breach of his control order, while AE and AF were seeking damages for time they had spent under their control orders.
The making of a non-derogating control order was an administrative act of the Home Secretary under the Prevention of Terrorism Act 2005 and, in principle, if the order was legally flawed, it attracted the usual consequence of a flawed administrative act, namely quashing ab initio.
Although the Home Secretary had made the orders in good faith and in the interests of public protection, he was doing so on the basis of an interference...
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