Case Summary: Home Secretary v AF no 3 2009 UKHL 28

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Legal Principles and Key Points

• In the case of Home Secretary v AF no 3 2009 UKHL 28 it was held that Art 6, was an absolute right.

Facts of the Case

• The House of Lords had to consider in this conjoined decision by the Court of Appeal whether the procedure that had resulted in the making of non-derogating control orders against the three appellants satisfied their right to a fair hearing under the European Convention on Human Rights 1950 art.6.
• The appellants had argued that their art.6 rights had been violated by reason of the reliance by the judges making the orders on material received in closed hearing the nature of which had not been disclosed to them.

Issues in Home Secretary v AF no 3 2009 UKHL 28

• Could the appellants successfully prove that they had been subject to an unfair trail contrary to art.6 of the Convention on Human Rights 1950.

Held by House of Lords

• Appeal allowed

Lord Phillips

• It was held that following the decision in A v United Kingdom (3455/05) (2009) 49 E.H.R.R 29, [2009] 2 WLUK 521, article 6 imposed an absolute requirement that a person subject to a control order be given sufficient information as to enable them to challenge the case effectively.

“The recent decision in A v United Kingdom establishes that ‘non-disclosure cannot go so far as to deny a party knowledge of the case against him, at least where he is at risk of consequences as severe as those normally imposed under a control order.”  [64]

“…The Strasbourg court also held that where national security is a threatened in cases of terrorism, ‘it may be acceptable not to disclose the source of evidence that founds the grounds of suspecting that a person has been involved in terrorism-related activities.” [66]

Lord Hoffman

• “I think that the decision of the ECtHR was wrong and that it may well destroy the system of control orders which is a significant part of this country’s defences against terrorism. Although s.2 of the HRA 1998 only requires UK courts to “take into account” decisions of the Strasbourg court, ‘the United Kingdom is bound by the Convention, as a matter of international law, to accept the decisions of the ECtHR on its interpretation.” [70]