FOURTH SECTION
Application no. 7674/08
A.F.
against the United Kingdom
lodged on 5 February 2008
STATEMENT OF FACTS
. The applicant, A.F., is a dual
United Kingdom/Libyan national, who was born in 1980 in the United Kingdom and lives in Manchester. He is represented before the Court by Mr S. Creighton, a
lawyer practising in London with Bhatt Murphy Solicitors.
A. The
circumstances of the case
. The present case concerns
three control orders which were made against the applicant under the now
repealed Prevention of
Terrorism Act 2005 (“the PTA 2005”)
The facts of the case, as submitted by the applicant, may be summarised as
follows.
1. The
applicant’s personal background
. The applicant was born in the United Kingdom to a Libyan father and a British mother. His parents are divorced. He spent
most of his formative years with his father and sister in Libya. In 2004 he and his father left Libya to come to the United Kingdom because of a blood feud
between his family and the Gaddafi tribe, and also to take advantage of better
job opportunities. The applicant is divorced and has no children. Although he
had a fiancée (in Libya) at the time of his control order hearing (see
paragraph 8 below), the applicant maintains that the relationship was adversely
affected by the control order restrictions he faced and it is now at an end.
Since shortly after his arrival in the United Kingdom, the applicant has lived
in Old Trafford, Manchester. He has lived with his father in a two-bedroom flat
with basic facilities that is rented from the local authority.
2. The
making of the first control order (PTA 6/2006)
. On 24 May 2006, the Secretary
of State (Dr Reid), with the permission of the High Court, made a control order
(PTA 6/2006) against the applicant. This was done, pursuant to section 2 of the
PTA 2005, on the grounds that the Secretary of State had reasonable grounds for
suspecting that the applicant was or had been involved in terrorism-related activity
and considered it necessary, for purposes connected with protecting members of
the public from a risk of terrorism, to make such a control order. The control
order was served on the applicant on 2 June 2006. It required him to remain in
his home for eighteen hours per day (“the curfew period”).
. The
control order also contained the following additional restrictions:
- to wear at all
times an electronic monitoring tag;
- to report by telephone to a
monitoring company to ensure the curfew period was observed;
- to remain
within a marked area in Manchester;
- to allow police offices and other
authorised persons to enter and search his flat;
- not to allow visitors (other than
his father, his legal representative and members of the emergency services) to
his flat except with prior authorisation of the Home Office and, in respect of
such a visitor, to supply the name, address, date of birth and photographic
identity of the individual to the Home Office;
- to attend only one designated mosque
and, while there, not to lead prayers, give lectures or provide any religious
advice;
- a prohibition on all communication
equipment (including access to the internet) in the flat save for one fixed
telephone line;
- a prohibition on the use of mobile
phone (including allowing someone to use one in the flat);
- to surrender
his passport and any other travel documents;
- to inform the Home Office of any
departure from the United Kingdom and of any intended return;
- a prohibition on entering any
airport, port or international railway station;
- various financial restrictions
including, inter alia, on owning more than one bank account and on
international money transfers without Home Office consent;
- to provide the Home Office with
details of any employment or change of employment;
- not to
associate with anyone else subject to a control order; and
- not to associate or communicate,
directly or indirectly, at any time or in any way with an individual named in
the control order.
. In August 2006 the Secretary
of State served on the applicant a Security Service statement setting out the
public or “open” reasons for the control order and the justifications for the
various obligations imposed under it. The Security Service statement alleged
that the applicant had links with extremist individuals in Manchester
affiliated to the Libyan Islamic Fighting Group, including the individual named
in the control order whom the applicant was not allowed to contact (see the
last point of paragraph 5 above). No further information was given concerning
these allegations, nor was any of the evidence supporting them communicated to
the applicant. The applicant’s case was that the individual was a family friend
and their association had been entirely innocent; the Security Service’s
assessment was that the purpose of the association was terrorist activity.
3. The
second control order (PTA 33/2006)
. On 11 September 2006,
following the decision of the Court of Appeal in another control order case, Secretary
of State for the Home Department v JJ and Others [2006] EWCA Civ 1141
(“JJ and others”: see paragraphs 16 et seq. below), the control
order was revoked by the Secretary of State. The Secretary of State then made a
second control order (control order PTA 33/2006) against the applicant. Under
this control order, the curfew period was fourteen hours per day. The other
restrictions were similar to those set out in the first control order, save
that the applicant was now prohibited from associating with a further five
individuals who were said to be associated with the Libyan Islamic Fighting
Group.
4. The High
Court’s review and quashing of PTA 33/2006
8. In
February 2007 control order PTA 33/2006 was reviewed by the High Court (Ouseley
J) at a hearing under section 3(10) of the PTA 2005 (see relevant domestic law
and practice at paragraphs 46 et seq. below).
. The Secretary of State
disclosed (“open”) evidence in support of his assessment that the applicant was
or had been engaged in terrorism related activity and that the control order
was necessary. This open evidence consisted of three statements. The Secretary
of State also relied on further witness statements intended to address, inter
alia, the applicant’s evidence about the impact of the control order
on his life. As accepted by Ouseley J in his judgment (see paragraphs 12-13
below) none of the statements or evidence produced by the Secretary of State
disclosed any specific allegations of wrongdoing against the applicant. To date
no such information has been communicated to or is known to the applicant.
. Two special advocates were
appointed to represent the applicant at the section 3(10) hearing. The
applicant met with one special advocate once on 30 August 2006. He maintains
that he was unable to give the special advocate any meaningful instructions of
any kind. He further maintains that he was, and remains, entirely ignorant of
even the gist of the case against him. The applicant was able to meet with the
special advocates until 31 August 2006, when they became privy to withheld
(“closed”) material that was to be relied upon by the Secretary of State at the
hearing. The special advocates continued to act on the applicant’s behalf but
could not communicate with the applicant without first obtaining permission
from the High Court.
. Ouseley J handed down his
judgment on 30 March 2007. This consisted of an open judgment and a closed
judgment (that is, a first, public judgment, which was disclosed to all the
parties in the case, and a second, confidential judgment, which was disclosed
only to the Secretary of State and the special advocates).
12. Ouseley
J found that the material disclosed to the applicant did not show reasonable
grounds for suspecting that he
had been or was involved in terrorism-related activity; it was clear, however,
that the material which had been disclosed to the court and to the special
advocates showed more than reasonable grounds for that suspicion.
13. Ouseley
J nonetheless found that the control order had to be quashed because, taken
cumulatively, the restrictions in it amounted to a deprivation of liberty and
thus violated Article 5 of the Convention. He stated that, in reaching this conclusion,
he attached particular significance to the length of the curfew period and the
cumulative restrictions on mosques and educational and employment
opportunities, which had to be seen as additional to those restrictions which
bit during the curfew hours (paragraphs 88 of his judgment). He concluded that
the control order was therefore a nullity and could not be saved by variations
to the restrictions, selected by the court.
5. The third
control order (PTA 4/2007)
. On 29 March 2007, having seen
a draft version of Ouseley J’s judgment and having sought permission to do so
from him, the Secretary of State made a third control order against the
applicant, PTA 4/2007. This Order was served on the applicant on 30 March 2007,
that is, the same day as Ouseley J handed down his judgment. PTA 4/2007 reduced
the curfew period to twelve hours per day from the previous fourteen (from 7
p.m. to 7 a.m.). The geographical area to which the applicant was
restricted in the remaining twelve hours of each day was enlarged to include a
part of Manchester city centre, he was permitted to receive one visitor at his
home between 7 p.m. and 7 a.m. without prior approval from the Home Office and
he was granted permission to attend three different mosques.
. The materials served on the
applicant in relation to control order PTA 4/2007 contain no further indication
as to the case against him.
6. The House of Lords judgments of 31 October 2007
16. Ouseley
J gave leave to appeal directly to the House of Lords against his judgment of
30 March 2007. The appeal was heard by the House of Lords at the same time as
three other control order cases: JJ and others, E and MB.
. JJ and others and E
concerned control orders with curfew periods. As in the applicant’s case, the
principal issue in those two cases was whether the curfew period in each order,
when taken with the other restrictions in each order, amounted to a deprivation
of liberty. MB
concerned a control order which did not contain a curfew period and was joined
to the cases for the purposes of consideration of the Article 6 point discussed
in paragraphs 25-28 below.)
. Judgment in all of the cases
was given on 31 October 2007 ([2007] UKHL 45-47).
(a) The Article 5 issue
. In JJ and others the curfew
periods were eighteen hours per day (requiring each individual to remaining in
his one-bedroom flat between 10 a.m. and 4 p.m.). There were
additional restrictions of the kind found in the applicant’s control order
(concerning visitors, communications etc). It was found by the High Court
(Sullivan J) that, considered cumulatively, the restrictions amounted to a
deprivation of liberty and had to be quashed. That finding was upheld by the
Court of Appeal.
. In the House of Lords
judgment, a majority of their Lordships (Lord Bingham, Lord Brown and Baroness
Hale) upheld the Court of Appeal judgment. In his speech Lord Brown specified
that, in his view, a control order which confined an individual to his home for
sixteen hours or less each day, whatever its severity otherwise, would not
amount to a deprivation of liberty.
. Lords Hoffmann and Carswell dissented.
Lord Hoffmann found that control order obligations did not amount to a
deprivation of liberty; Lord Carswell found that even confinement to a
residence for eighteen hours under a control order did not amount to a
deprivation of liberty.
. A majority of their Lordships
(Lords Brown, Hoffmann and Carswell) therefore held that a control order which
confined a person to a residence for sixteen hours per day or less, even when
coupled with other restrictions, did not amount to a deprivation of liberty
under Article 5.
23.
E’s control order required him to remain within his home where he lived with
his wife and children, with access to his garden, between 7 p.m. and 7 a.m.
There were no geographical restrictions outside those hours, but restrictions
on visitors and meeting persons without authorisation and a requirement to
consent to spot searches of his home. The control order was quashed by the High
Court (Beatson J) as amounting to a deprivation of liberty. That decision was
overturned by the Court of Appeal, which found that the restrictions were more
akin to a curfew than a deprivation of liberty. That finding of the Court of
Appeal was confirmed unanimously by the House of Lords.
. In the applicant’s case, the
House of Lords held unanimously that, for the reasons they had given in JJ
and others and E, control order PTA 33/2006 (and, in
particular, the fourteen-hour curfew contained therein) did not constitute a
deprivation of the applicant’s liberty for the purposes of Article 5.
(b) The
Article 6 issue
25. Their
Lordships were also unanimous in their view that the criminal limb of Article 6
did not apply to control order proceedings, since the proceedings involved an
assertion that a person was suspected of criminal activity, not that he was
guilty of it.
. A majority of their Lordships
(Lords Bingham, Brown and Carswell, and Baroness Hale) nonetheless held that,
under the civil limb of Article 6, if it was necessary to disclose material to
a controlled person in order to afford them a fair hearing, then either
disclosure had to be made or the material could not be relied upon. They
further held that the use and contribution of the special advocates in the
applicant’s case could have been sufficient to afford him a fair hearing
notwithstanding that none of the allegations and evidence relied upon against
him was disclosed to him.
. Lord Hoffmann, dissenting,
held that it was no violation of Article 6 to withhold evidence or allegations
against an individual where this is necessary to protect the public interest;
the special advocate procedure itself provided sufficient safeguards.
28.
In light of their conclusions, the House of Lords reversed Ouseley J’s decision
to quash control order PTA 33/2006. Beyond their general observations on
Article 6, their Lordships made no specific finding as to whether the Article 6
had been breached in the applicant’s particular case and instead remitted this
issue back to the High Court for its consideration.
7. The modification of PTA 4/2007
. On 31 October 2007, following
the House of Lords’ judgments, the Secretary of State (Ms Smith) modified
PTA 4/2007. That modification increased the period that the applicant was
confined to his residence to sixteen hours a day (from 5 p.m. to 9 a.m., later
modified to 4.30 p.m. to 8.30 a.m.). The further restrictions set out in
the control order (similar to those summarised at paragraph 5 above) continued
in force. The Secretary of State introduced a further obligation prohibiting
the applicant from attending pre-arranged meetings outside his residence (other
than for health, educational or employment purposes and at a mosque).
8. Events subsequent to the lodging of the present application
. The present application was
lodged on 5 February 2008. When it was lodged, the hearing concerning PTA
4/2007 was pending before the High Court. The applicant had initially applied
to the High Court for a direction that the hearing take place before a judge
other than Ouseley J on the grounds of objective, pre-judgment bias (no
allegation of actual bias was made). Stanley Burnton J refused that application
on 30 November 2007 ([2007] EWHC 2828 (Admin), a decision which was
subsequently confirmed by the Court of Appeal on 22 February 2008 ([2008] EWCA
Civ 117).
. The proceedings concerning PTA 33/2006 (which had been remitted to the
High Court by the House of Lords for consideration of the Article 6 issue in
the case) were also heard before Stanley Burnton J. In judgments given on 10
March 2008 and 9 April 2008 ([2008] EWHC 453 (Admin) and [2008] EWHC (Admin) 689) he found that, given the lack of disclosure of both the allegations against
applicant and the evidence supporting them, the proceedings concerning PTA
33/2006 did not comply with Article 6. He further found that that conclusion
would apply to the pending proceedings concerning PTA 4/2007.
. The Secretary of State
appealed against those findings to the Court of Appeal, which, on 17 October
2008 and by a majority of two to one, allowed the appeal. The majority found
that there was no absolute rule that Article 6 required the gist or essence of
the allegations and evidence to be disclosed to the person subjected to a
control order ([2008] EWCA Civ 1148).
. The applicant and two other
controlled persons whose cases had been heard by the Court of Appeal were given
leave to appeal to the House of Lords.
. On 10 June 2009, their
Lordships unanimously allowed the appeal. They found that, in light of this
Court’s judgment in A. and Others v. the United Kingdom [GC],
no. 3455/05, ECHR 2009, there was now an absolute rule that Article 6 required
that a controlee be given sufficient information about the allegations against
him to enable him to give effective instructions in relation to those
allegations. Provided that
this requirement was satisfied there could
be a fair trial notwithstanding that the
controlee was not provided with the detail
or the sources of the evidence forming the basis of the allegations. Where,
however, the open material consisted purely of general assertions and the case
against the controlee was based solely or to a decisive degree on
closed materials the requirements of a fair trial would not be satisfied, however
cogent the case based on the closed materials might be (Lord Phillips at paragraph 59 of the
judgment: [2009] UKHL 28).
. On 11 June 2009 the applicant
wrote to this Court seeking leave to amend the application in the light of the
House of Lords’ judgment. On 25 June 2009 he was informed that, on 23 June
2009, the President of the Chamber to which the case had been allocated had
decided that, since the case would be remitted to the lower courts for further
consideration, it was appropriate to adjourn the Court’s own consideration of
the application.
. On 22 September 2009, as a
result of the House of Lords’ judgment, the Secretary of State (Mr Johnson)
decided not to make the required disclosure to the applicant and instead to
revoke control order PTA 4/2007.
. On 18 January 2010, the High
Court (Silber J) handed down another judgment ([2010] EWHC 42 (Admin)),
finding, inter alia, that: (i) the control order against the applicant
had to be regarded as having been revoked (or quashed) ab initio; and
(ii) the disclosure requirements identified by the House of Lords applied to a
claim for damages arising out of the imposition of a control order.
. The Secretary of State’s
appeal against Silber J’s judgment was dismissed by the Court of Appeal on 28
July 2010 ([2010] EWCA Civ 869).
. The applicant issued legal
proceedings against the Secretary of State (Ms May) on 21 March 2012, claiming
damages for the time he had spent under the control orders. The Secretary of
State has filed a defence to the applicant’s claim and the proceedings remain
pending.
B. Relevant
domestic law
1. The
Prevention of Terrorism Act 2005: general provisions
. The power for the Secretary of
State to make control orders (with the approval of the High Court) was
introduced by the Prevention of Terrorism Act 2005. The Act was repealed by the
Terrorism Prevention and Investigation Measures Act 2011.
. The purpose of control orders
was stated by Government to be a substitute for criminal prosecution in
circumstances where the evidence against the individual in question could not
be adduced in domestic criminal proceedings. One of the reasons that evidence
is commonly inadmissible in criminal proceedings in the United Kingdom is because intercepted communications are inadmissible in legal proceedings. (see
section 17 of the Regulation of Investigatory Powers Act 2000). Control order
proceedings were exempted from this ban (section 18(l)(da)).
. The PTA made provision for two
different types of control orders: “derogating control orders” and
“non-derogating control orders”. Section 1(2)(a) provided that the power
to make non-derogating control orders was exercisable by the Secretary of
State. Section 1(2)(b) provided that the power to make derogating control
orders was exercisable by the court on the application of the Secretary of
State. Derogating control orders were control orders which included obligations
on controlled persons that were incompatible with Article 5 of the Convention
and therefore required derogation from that Article under Article 15 of the
Convention (section 4 of the PTA). Non-derogating control orders contained no
such obligation and, if they violated Article 5, would have been unlawful. The
applicant (in common with all other controlled persons in the United Kingdom at
the time) was subjected to a non-derogating control order.
2. The
criteria for making a non-derogating control order
. Section 2 of the PTA set out the conditions for making a non-derogating
control order:
“Making of
non-derogating control orders
(1) The Secretary of
State may make a control order against an individual if he-
(a) has reasonable
grounds for suspecting that the individual is or has been involved in
terrorism-related activity; and
(b) considers that it
is necessary, for purposes connected with protecting members of the public from
a risk of terrorism, to make a control order imposing obligations on that
individual.”
. Section 8 of the PTA imposed
various obligations on the Secretary of State and the police as regards
investigating (and keeping under review) the possibility of criminal
prosecution for terrorism offences as an alternative to the making of a control
order. It provided:
“Criminal
investigations after making of control order
(1) This section
applies where it appears to the Secretary of State-
(a) that the
involvement in terrorism-related activity of which an individual is suspected
may have involved the commission of an offence relating to terrorism; and
(b) that the
commission of that offence is being or would fall to be investigated by a
police force.
(2) Before making, or
applying for the making of, a control order against the individual, the
Secretary of State must consult the chief officer of the police force about
whether there is evidence available that could realistically be used for the
purposes of a prosecution of the individual for an offence relating to
terrorism.
(3) If a control
order is made against the individual the Secretary of State must inform the
chief officer of the police force that the control order has been made and that
subsection (4) applies.
(4) It shall then be
the duty of the chief officer to secure that the investigation of the
individual’s conduct with a view to his prosecution for an offence relating to
terrorism is kept under review throughout the period during which the control
order has effect.
(5) In carrying out
his functions by virtue of this section the chief officer must consult the
relevant prosecuting authority, but only, in the case of the performance of his
duty under subsection (4), to the extent that he considers it appropriate to do
so.
(6) The requirements
of subsection (5) may be satisfied by consultation that took place.”
. A person who contravened an
obligation imposed on him by a control order without reasonable excuse was
guilty of a criminal offence (section 9(1)). The offence was punishable with up
to 5 years’ imprisonment or a fine (section 9(2)).
3. The role of the High Court
46. The
High Court’s supervisory role in relation to non-derogating control orders was
set out in section 3 of the PTA. The relevant provisions provided:
“Supervision by
court of making of non-derogating control orders
(1) The Secretary of
State must not make a non-derogating control order against an individual except
where-
(a) having decided
that there are grounds to make such an order against that individual, he has
applied to the court for permission to make the order and has been granted that
permission;
(2) Where the
Secretary of State makes an application for permission to make a non-derogating
control order against an individual, the application must set out the order for
which he seeks permission and-
(a) the function of
the court is to consider whether the Secretary of State’s decision that there
are grounds to make that order is obviously flawed;
(b) the court may
give that permission unless it determines that the decision is obviously
flawed; and
(c) if it gives
permission, the court must give directions for a hearing in relation to the
order as soon as reasonably practicable after it is made...”
. Section 3(10) provided that,
at the hearing, the function of the court was to determine whether any of the
following decisions of the Secretary of State were flawed:
(a) his
decision that the requirements of section 2(l)(a) and (b) were satisfied for
the making of the order; and
(b) his
decisions on the imposition of each of the obligations imposed by the order.
. Section 3(11) provided that,
in so doing, the court had to apply the principles applicable on an application
for judicial review.
. Section 3(12) provided that if
the court determined that any of the relevant decisions of the Secretary of
State were flawed, its only powers were: to quash order; to quash one or more
obligations imposed by the order; and to give directions to the Secretary of
State for the revocation of the order or for the modification of the
obligations it imposes.
4. Procedural rules governing control order hearings
. The Act also allowed for the
making of procedure rules governing the conduct of control order hearings, the
limited disclosure of sensitive material to the subject of a control order and
his legal representatives and the holding of “closed” hearings. Paragraph 4(2)
of the Schedule to the Act in particular provided:
“Rules of court made
in exercise of the relevant powers may also, in particular-
(a) make provision
enabling control order proceedings or relevant appeal proceedings to take place
without full particulars of the reasons for decisions to which the proceedings
relate being given to a relevant party to the proceedings or his legal
representative (if he has one);
(b) make provision
enabling the relevant court to conduct proceedings in the absence of any person,
including a relevant party to the proceedings and his legal representative (if
he has one);
(3) Rules of court
made in exercise of the relevant powers must secure-
(d) that the relevant
court is required to give permission for material not to be disclosed where it
considers that the disclosure of the material would be contrary to the public
interest;
(e) that, where
permission is given by the relevant court not to disclose material, it must
consider requiring the Secretary of State to provide the relevant party and his
legal representative (if he has one) with a summary of the material;
(f) that the relevant
court is required to ensure that such a summary does not contain information or
other material the disclosure of which would be contrary to the public
interest;”
. Part 1 of the Civil Procedure
Rules (“the CPR”) defines the overriding objective of the CPR as enabling the
court to deal with cases justly and at proportionate cost. This includes
“ensuring that the parties are on an equal footing” (CPR Part 1(2)(a)) and
“ensuring that the case is dealt with expeditiously and fairly” (CPR Part
1.1(2)(d)).
. Part 76 of the CPR set out the
rules governing control order hearings. Rule 76.2 provided for the modification
of the aforementioned overriding objective in the following terms:
“76.2 (1) Where this
Part applies, the overriding objective in Part 1, and so far as relevant any
other rule, must be read and given effect in a way which is compatible with the
duty set out in paragraph (2).
(2) The court must
ensure that information is not disclosed contrary to the public interest.
(3) Subject to
paragraph (2), the court must satisfy itself that the material available to it
enables it properly to determine proceedings.”
. CPR Part 76 also made
provision for withholding evidence relied upon against a controlled person from
that person and his legal representative, for the appointment of a special
advocate to represent that person’s interest and for the special advocate to be
shown the withheld evidence. Rule 76.28 provided:
“Closed
material
76.28
(1) The Secretary of State -
(a)
must apply to the court for permission to withhold closed material from a
relevant party or his legal representative in accordance with this rule; and
(b)
may not rely on closed material at a hearing on notice unless a special
advocate has been appointed to represent the interests of the relevant party.
(2)
The Secretary of State must file with the court and serve, at such time as the
court directs, on the special advocate -
(a)
the closed material;
(b) a statement of
his reasons for withholding that material from the relevant party;
and
(c) if he considers
it possible to summarise that material without disclosing information contrary
to the public interest, a summary of that material in a form which can be
served on the relevant party.”
. Rule 76.29(8) provided that
the court had to give permission to the Secretary of State to withhold closed
material where it considered that the disclosure of that material would be
contrary to the public interest.
. Rule 76.24 defined the
functions of the special advocate in the following terms:
“...to represent the
interests of a relevant party by-
(a) making
submissions to the court at any hearings from which the relevant party and his
legal representatives are excluded;
(b) cross-examining
witnesses at any such hearings; and
(c) making written
submissions to the court.”
. The special advocate could
communicate with the person subject to a control order or his legal
representative at any time before the Secretary of State served closed material
on him (CPR Part 76.25(1)). After the Secretary of State served closed material
on the special advocate, the special advocate could not communicate with any
person about any matter connected with the proceedings (CPR Part 76.25(2)). The
special advocate could request the permission of the court to communicate with
a controlled person or their legal representative but the substance of that
communication had to be notified to the Secretary of State and was therefore
not legally privileged (CPR Part 76.25(4) and (5)). After the Secretary of
State had served closed material on the special advocate, a person subject to a
control order could only communicate with the special advocate through a legal
representative in writing; and the special advocate could not reply to the
communication other than in accordance with directions of the court, except to
send written acknowledgment of receipt to the legal representative (CPR Part
76.25(6)).
. The special advocate was
afforded an opportunity to challenge the Secretary’s of State’s application to
withhold material in a hearing at which the controlled person and his legal
representatives were excluded (CPR Part 76.29(1)-(5)).
. The ordinary rules governing
evidence and inspection of documents did not apply in control order proceedings
(CPR Part 76.26(1)); evidence could be given orally or in writing, and in
documentary or any other form; the court could receive evidence which would not
have been admissible in a court of law (CPR Part 76.62(2)-(4)). The court had
the power to exclude a controlled person and his representatives from a hearing
in which closed material was being considered.
COMPLAINTS
. The applicant complains his
control orders - by virtue of the cumulative effect of the restrictions therein
- deprived him of his liberty in breach of Article 5 § 1
of the Convention.
. Under Article 6, the applicant
contends that control order proceedings amount to a “criminal charge” and he
had not been afforded the protections under Article 6 §§ 2 and 3 applicable to
criminal proceedings.
. Moreover, and in any event,
the applicant was not informed of any of the specific allegations or any of the
evidence against him. Irrespective of whether the control order proceedings
were criminal or civil, this represented a gross departure from the core
irreducible minimum requirement of fairness under Article 6. He further
complains that the appointment and use of special advocates to represent him at
hearings under section 3(10) of the PTA 2005 from which he was excluded did not
render such hearings fair.
. Also under Article 6 the
applicant complains that the proceedings concerning his challenge to the
control orders breach the reasonable time requirement set out in the first
paragraph of that Article.
. Finally, the applicant
complains that he had no any effective remedy for these violations in breach of
Article 13.
QUESTIONS TO THE
PARTIES
Did the
control orders made against the applicant amount to a deprivation of liberty
for the purpose of Article 5. If so, was there a violation of that Article?
As
concerns Article 6:
(a)
Was the criminal limb
of Article 6 applicable to the control order proceedings before the High Court?
(b)
If not, was the civil
limb applicable?
(c) If either the criminal or civil limb of
Article 6 was applicable, was there been a violation of that Article?
