Prohibition against Arbitrary Detention and the Right to Procedural Fairnesser] (19 February 2009)

A and Ors v United Kingdom [2009] ECHR 3455/05 [Grand Chamber] (19 February 2009) In a case relating to the detention of non-national terror suspects in the UK, the European Court of Human Rights held that:

• detention pending deportation cannot be justified under art 5(1)(f) of the European Convention on Human Rights and is therefore a violation of the right to liberty (under art 5(1)) unless some action is actually being taken with a view to the deportation of the detainee; and
• where allegations against detainees are in general terms and the critical evidence is undisclosed to those detainees (even in the interests of national security) such that the detainee cannot effectively challenge the allegations, the right of a detained person to challenge the lawfulness of his/her detention before a court (under art 5(4)) is breached due to a lack of procedural fairness.

Facts

In the aftermath of 11 September, the UK Government considered that there was 'an emergency of a most serious kind threatening the life of the nation' and accordingly passed The Anti-terrorism Crime and Security Act 2001.  The Act allowed the Secretary of State to issue a certificate stating that an individual foreign national was a threat to national security.  These individuals were then arrested and detained until satisfactory deportation arrangements were made, or they chose to leave the UK.  The Act provided that the measures were temporary and would cease once the emergency ended.  The individual certificates were reviewed every six months.  The certificates could be challenged before the Special Immigration Appeals Tribunal ('SIAC').

The House of Lords declared that the Act was incompatible with the Human Rights Act 1998 (UK).  However such a declaration does not affect the validity of the law and no compensation was available under domestic law.

Decision

The Court held that the Act violated the right to liberty and the right of detained persons to challenge the lawfulness of their detention before a court.

Right to Liberty

Article 5(1)(f) provides that the right to liberty is not breached where a person 'against whom action is being taken with a view to deportation or extradition' is detained according to law.  The Court held that detention is only justified under this article for so long as deportation or extradition proceedings are in progress and only where such proceedings are prosecuted with due diligence.  Compliance with national laws is not enough, in addition the detention must not be arbitrary.  To avoid being arbitrary detention must be 'carried out in good faith ... closely connected to the ground of detention relied on ... the place and conditions of detention should be appropriate and the length ... should not exceed that reasonably required for the purpose pursued.'

The UK Government acknowledged that all but two of the applicants could not be deported due to a risk that they would be treated in breach of art 3 (which prohibits torture or inhuman or degrading treatment or punishment) in their countries of origin.  The Court held that, 'keeping the possibility' of deportation 'under active review' was not sufficient to comply with art 5(1)(f).  Although the UK had purported to derogate from its obligations under this article, in accordance with art 15, this derogation was invalid as it was disproportionate to the threat and discriminated between nationals and non-nationals.

Procedural Fairness

Article 5(4) provides that a detained person has the right to challenge the lawfulness of his/her detention before a court.  The Court held that this requires that proceedings be adversarial and that there be 'equality of arms' between the parties.  However these rights can be limited in the public interest, for instance where evidence cannot be disclosed the interests of national security.  Where this occurs it must be counterbalanced so that the detainee can effectively challenge the allegations made.  Procedural fairness requires that a detainee be informed of sufficient detail to permit him/her to effectively challenge those allegations.

The Court considered that the SAIC, as an independent court which had all the information before it, was best placed to ensure no information was unduly withheld.  It also accepted that the special advocates (who were entitled to view the closed information and to make submissions on the detainee's behalf in relation to procedural matters and the substance of the case) did play an important role in counterbalancing the difficulties caused to the detainees.  This was limited, however, where the detainee was not provided with sufficient information to enable him/her to effectively instruct the special advocate.

The Court concluded that where the allegations were specific and the closed material was not heavily relied upon, the detainees should have been able to respond to the allegations and there was no breach of art 5(4).  However, where the allegations were general or unspecific, and the closed material was heavily relied upon, the detainee was not accorded procedural fairness in breach of art 5(4).

Relevance to the Victorian Charter

The Court's decision has implications for the following Charter rights:

• the right to liberty and security of person (s 21); and
• the right to a fair hearing (s 24).

The right to liberty and security of person prohibits arbitrary detention and therefore could be interpreted to prevent detention pending deportation where no steps are being actively and diligently taken to effect the deportation.

The right to a fair hearing requires a detainee to be accorded procedural fairness.  Use of undisclosed materials, even in circumstances where a specially appointed lawyer can view the undisclosed information but cannot then liaise with the detainee may violate this right if insufficient detail is made known to the detainee to enable him/her to challenge the allegations against him/her.

Aruni Jayakody and Jane Tipping, Human Rights Law Group, Mallesons Stephen Jaques