Control Orders and the Deprivation of Liberty

AN v Secretary of State for the Home Department [2010] EWCA Civ 869 (28 July 2010)

A recent decision before the England and Wales Court of Appeal has found that if a control order is legally flawed, or revoked by the Secretary of State, then it shall be quashed ab initio.

Facts

A number of persons residing in the UK, including AN, AE and AF, were subject to control orders issued by the Secretary of State under s 1(2)(a) of the Prevention of Terrorism Act 2005.  Following the House of Lords’ decision in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, the Secretary of State decided to revoke the orders in force instead of disclosing further information to the controlees.

However, proceedings against the controlees remained pending in the Administrative Court under s 3(1) of the Act and so the question was whether the control orders were to be quashed ab initio or prospectively.  In AN [2009] EWHC 1966 (Admin), the Court held for prospective revocation, while in AE and AF [2010] EWHC 42 (Admin), the Court held the orders were quashed ab initio.

In the first case, AN was subject to criminal action for breaching his control order and, if the order was quashed ab initio, his prosecution would have failed.  Meanwhile, AE and AF wished to seek damages in the second case for the 3.5 years that they were subject to control orders.

The findings in the AN and AE and AF cases can be contrasted as follows.  In AN, Mitting J acknowledged that he had a discretion under s 3(12) of the Act to quash the order or to have it revoked.  Justice Mitting concluded that at the time of issuing the control order, the Secretary of State was entitled to rely on closed material without disclosing it and that it was not therefore a nullity.

However, in AE and AF, Silber J held he was bound to quash the control order ab initio because:

• significant authority supported such a finding;
• anything less would render the controlees’ rights under art 6 (the right to a fair hearing) ineffectively secured; and
• ultimately, had the Secretary of State complied with the disclosure obligations, which were eventually affirmed in AF (No 3), the control orders would not have proceeded.

AN and the Secretary of State appealed to the England and Wales Court of Appeal challenging the respective findings on the revocation of control orders.

Decision

This decision was the first of the control order cases before the higher courts to provide a definitive ruling on whether flawed control orders are quashed ab initio.  In concluding that the appropriate remedy in all cases is one of quashing ab initio, as held by Silber J and not revocation as held by Mitting J, the Court of Appeal discussed a number of pertinent issues.

The Secretary of State and administrative acts

The Court of Appeal rejected Mitting J’s finding that a non-derogating control order so closely resembles a court order that it retains its validity unless set aside by a court.  According to Maurice Kay LJ (with whom Rix LJ and Stanley Burnton LJ agreed), the Act vested the power to make non-derogating control orders exclusively in the Secretary of State and the Court’s role is merely to supervise.  Consequently, their Honours concluded that if a control order is legally flawed then it is to be dealt with like any other flawed administrative act by being quashed ab initio.

Reasonableness and good faith

While the Court of Appeal acknowledged that the Secretary of State was acting in good faith, their Honours rejected Mitting J’s finding that this was a relevant consideration and held that regardless of intention, the effect was to interfere with the human rights of the controlled persons.  The Court held it is a fallacy to suggest a control order is valid and there are reasonable grounds on the one hand, without then being willing to disclose the material on which the Secretary of State relies.

Revocation

Their Honours rejected the submission that s 3(12)(c) of the Act dealing with revocation is emasculated if it was not one of the remedies available in the circumstances.  The Court went on to say that s 3(12)(c) is of importance and use, but only when the circumstances have changed from a time where a control order is sustainable to a period where it becomes flawed.  This scenario did not occur on the facts and so the structure of the Act assumes a flawed control order is void ab initio.

Human Rights Act and habeas corpus

The Court of Appeal acknowledged that the art 6 right to a fair trial under the Human Rights Act 1998 may not apply at an administrative stage of determination.  However, their Honours held it was nevertheless axiomatic as the Secretary of State knows he will have to abide by disclosure requirements and justify the order to the court.

The Court of Appeal also rejected the suggestion that the case was conceptually different to an art 5 right to liberty case and referred to the principle of habeas corpus.  Ultimately, the court concluded the principle that ‘no member of the executive can interfere with the liberty of a British subject except on the condition that he can support the legality of his action before a court of justice’ is not confined to the full deprivation of liberty cases.

Relevance to the Victorian Charter

This decision may be of persuasive value when interpreting the right to a fair trial under s 24 and the right to liberty and security under s 21 of the Charter.  However, in the absence of a federal human rights instrument, the decision will have limited direct applicability to Australian control orders issued under the Criminal Code 1995 (Cth) and the application of the habeas corpus rule in such circumstances.

The decision is at www.bailii.org/ew/cases/EWCA/Civ/2010/869.html.

Julien du Vergier, Law Graduate, Mallesons Stephen Jaques Human Rights Law Group