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House of Lords rules Control Orders incompatible with right to a fair trial

In a unanimous ruling by a nine judge panel the House of Lords today held that the Control Order system as operated to date breached the fundamental right to a fair hearing under Article 6 of the European Convention on Human Rights.

Control Orders are made under the Prevention of Terrorism Act 2005 and may impose severe restrictions on an individual's freedom on the grounds of reasonable suspicion of involvement in terrorism related activity. The Court of Appeal had held that such orders could be fair even if the individual was not told even the gist of the case against him. The House of Lords rejected that view.

Giving the leading speech of the Judicial Committee Lord Phillips said this:"There are strong policy considerations that support a rule that a trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him. The first is that there will be many cases where it is impossible for the court to be confident that disclosure will make no difference ... Next [there are] the feelings of resentment that will be aroused if a party to legal proceedings is placed in a position where it is impossible for him to influence the result. The point goes further. Resentment will understandably be felt not merely by the controlee but by his family and friends, if sanctions are imposed on him on grounds that lead to his being suspected of involvement in terrorism without any proper explanation of what those grounds are. Indeed if the wider public are to have confidence in the justice system, they need to see that justice is done rather than being asked to take it on trust."

In a concurring speech Lord Hope said the following:"The principle that the accused has a right to know what is being alleged against him has a long pedigree ... a denunciation on grounds that are not disclosed is the stuff of nightmares. The rule of law in a democratic society does not tolerate such behavior. The fundamental principle is that everyone is entitled to the disclosure of sufficient material to enable him to answer effectively the case that is made against him .... The consequences of a successful terrorist attack are likely to be so appalling that there is an understandable wish to support the system that keeps those who are considered to be most dangerous out of circulation for as long as possible. But the slow creep of complacency must be resisted. If the rule of law is to mean anything, it is in cases such as these that the court must stand by principle. It must insist that the person affected be told the case against him."

Timothy Otty QC, of 20 Essex Street, was part of the team of Counsel acting for the successful Appellant AF. Instructing solicitors were Middleweeks.