Ruling Limits Government Power to Make ‘Control Orders’

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from HREA Human Rights Education Associates and its Newsletter, November 1, 2007.

A Human Rights Watch Press release

(London, November 1, 2007) – A decision by Britain’s highest court on the use of secret evidence against terrorism suspects sets an important precedent, Human Rights Watch said today.

“The message is clear: secret evidence isn’t enough,” said Benjamin Ward, associate director for Europe and Central Asia at Human Rights Watch. “The Law Lords have affirmed the basic principle that everyone has the right to know the case against him.”

In four judgments on October 31, the House of Lords Judicial Committee (commonly known as the “Law Lords”) ruled that control orders based solely on secret evidence violate the right to a fair hearing, even when national security is at stake. Lord Brown wrote, “a suspect’s entitlement to an essentially fair hearing … one of altogether too great importance to be sacrificed on the altar of terrorism control.”

The court affirmed that orders confining suspects to their homes for 18 hours a day breached the right to liberty. But they upheld the lawfulness of the power to make such orders ruling that shorter time periods can be acceptable, and rejected arguments that the restrictions under by the orders amount to a criminal punishment.

“The judgments allow serious restrictions on rights to continue,” said Ward. “But they also make clear that procedural safeguards cannot be set aside in the name of national security.”

The power to restrict the liberty of people suspected of involvement in terrorism without preparing for criminal prosecution was introduced in March 2005 after a December 2004 Law Lords ruling that the indefinite detention of foreign terrorism suspects breached human rights law. Under the Prevention of Terrorism Act 2005, the home secretary can impose control orders on individuals based on secret evidence that person is suspected of involvement in terrorism, where there is no reasonable prospect for successful criminal prosecution. The orders can be appealed, but the suspects and their lawyers are excluded from court when secret evidence is considered. Their interests are instead represented by security-cleared lawyers (”special advocates”) appointed on their behalf.

In the linked cases of MB and AF, the Law Lords determined that the use of secret evidence deprived the two men of a fair hearing, reversing an August 2006 Court of Appeal ruling, and ordered their cases to be reviewed by a high court judge. In JJ and others, the judges upheld a separate August 2006 Court of Appeal ruling that control orders imposing 18-hour curfews constituted unlawful deprivation of liberty in violation of article 5 of the European Convention on Human Rights. In E and another, the Law Lords upheld a May 2007 Court of Appeal ruling that a 12-hour curfew and other restrictions on movements did not amount to deprivation of liberty, and affirmed that the duty of the secretary of state to consider and keep under review the prospects for prosecution were not pre-conditions for making a control order.

Human Rights Watch first expressed concerns about the inadequate procedural safeguards in the Control Order system during the passage of the Prevention of Terrorism Act in 2005.

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