Secretary of State for the Home Department v CB & Anor (Rev 1)

Introduction

The main issue with which this judgment is concerned is whether it is now appropriate to stay control order proceedings concerning BP and CB (“the respondents”) which they still wish to pursue after those orders have been revoked by the Secretary of State for the Home Department (“the Secretary of State”). A secondary issue (which arises if the stay is not granted) is whether the Secretary of State should be given more time in which to reconsider the open/closed divide in order to decide if more documents can be released into open bearing in mind first that the previous hearings took place as long ago as July 2010, second that there have been extradition proceedings against CB and third that there are proceedings in the United States concerning those associated with the respondents.

On 17 May 2010, following the grant of permission by the Court, the Secretary of State made control orders in respect of BP and CB who had successfully appealed to the Special Immigration Appeals Commission in a judgment dated 18 May 2010 (“the SIAC judgment”) against earlier orders to deport them on national security grounds, but in which some critical findings were made against the respondents.

On 22 and 23 July 2010, a hearing started in front of me for consideration of the control orders pursuant to the provisions of section 3(10) of the Prevention of Terrorism Act 2005 (“the 2005 Act”). At the outset of that hearing, I raised the issue of why the control orders could not be revoked bearing in mind first that CB had by then been arrested on 7 July 2010 pursuant to an extradition request of the United States of America and has since then remained in custody and second that BP had voluntarily departed the United Kingdom for Pakistan on 16 July 2010.

Later on that day, the Secretary of State revoked both control orders but this was not disclosed in open during the previous hearing. The orders have not been reimposed and it is highly unlikely that a control order will be reimposed on either of the individuals.

At the previous hearing on 22 and 23 July 2010, there was not only an open session but also a closed session so as to consider whether further disclosure was required by the Secretary of State in accordance with Article 6 of the ECHR. This closed hearing was not completed within those two days but unfortunately, for reasons not known to me, the resumed hearing could not take place until almost a year later.

The Secretary of State has stated that some information previously closed has now become public as a result of the US proceedings and of the extradition proceedings. In the light of these factors and the passage of time since the last hearing, the Secretary of State considers it to be sensible for her to reconsider whether some of the material which she had considered should only be adduced in closed evidence should now be disclosed in open. She therefore requests that it would be unproductive for the court to make a decision in relation to those matters and that the closed hearings should be adjourned for 8 weeks for this purpose. Miss Stephanie Harrison counsel for the respondents opposes this application.

In addition, I felt duty bound in the light of the fact that the control orders were discharged in July 2010 to consider whether the overriding objectives of the CPR required me to grant a stay of the present proceedings, essentially on the basis that the present section 3 (10) proceedings apparently no longer serve any purpose. The stated purpose of proceedings under section 3(10) of the 2005 Act is to consider whether a control order or any obligation in respect of it should be quashed or modified or whether a direction should be given to the Secretary of State to revoke the control order. I was concerned as to whether such a remedy is now academic as being unnecessary. I therefore raised this matter, which was considered solely at an open hearing, and which has led to the present judgment. There is no accompanying closed judgment.

Any attempt to stay the present proceedings is opposed by Miss Harrison while Mr. Robin Tam QC for the Secretary of State is neutral but he has helpfully drawn my attention to some important matters. In order to understand the issues, it is necessary for me to set out the statutory background to which I now turn.

By section 1(2) of the 2005 Act, the power to make a control order against an individual is exercisable:-

"(a)

except in the case of an order imposing obligations that are incompatible with the individual's right to liberty under Article 5 of the Human Rights Convention, by the Secretary of State; and (b) in the case of an order imposing obligations that are or include derogating obligations, by the court on the application of the Secretary of State."

To date, the Secretary of State has not made any application, in these or other cases, to the court pursuant to section 1(2)(b), but instead has sought to proceed by way of non-derogating control orders under section 1(2)(a).

Section 2 of the 2005 Act provides that:-

"(1)

The Secretary of State may make a control order against an individual if he – (a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and (b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual. … (3) A control order made by the Secretary of State is called a non-derogating control order."

Section 2(4) of the 2005 Act provides that a non-derogating control order has effect for a period of 12 months, but there is power given to the Secretary of State by section 2(6) to renew it.

Section 3 of the 2005 Act is headed "Supervision by court of making of non-derogating control orders". It provides that:-

"(1)

The Secretary of State must not make a non-derogating control order against an individual except where – (a) having decided that there are grounds to make such an order against that individual, he has applied to the court for permission to make that order and has been granted that permission; (b) the order contains a statement by the Secretary of State that, in his opinion, the urgency of the case requires the order to be made without such permission; or (c) [not material]

(2)

Where the Secretary of State makes an application for permission to make a non-derogating control order against an individual, the application must set out the order for which he seeks permission and – (a) the function of the court is to consider whether the Secretary of State's decision that there are grounds to make that order is obviously flawed; (b) the court may give that permission unless it determines that the decision is obviously flawed; and (c) if it gives permission, the court must give directions for a hearing in relation to the order as soon as reasonably practicable after it is made."

If the Secretary of State makes an urgent order without permission pursuant to section 3(1)(b), he has an obligation under section 3(3) to refer the order immediately to the court, which has the function of considering whether the order was "obviously flawed". If the court decides that it was obviously flawed, then by section 3(6)(a), "it must quash the order" or any condition in it that was obviously flawed. In the absence of an obvious flaw "it must confirm the order and give directions for a hearing in relation to the confirmed order" (section 3(6)(c)).

Other material provisions of section 3 of the 2005 Act are that:-

"(10)

On a hearing in pursuance of directions under subsection (2)(c) or (6)(b) or (c), the function of the court is to determine whether any of the following decisions of the Secretary of State was flawed – (a) his decision that the requirements of section 2(1)(a) and (b) were satisfied for the making of the order; and (b) his decisions on the imposition of each of the obligations imposed by the order.

(11)

In determining – (a) what constitutes a flawed decision for the purposes of subsection (2), (6) or (8), or (b) the matters mentioned in subsection (10), the court must apply the principles applicable on an application for judicial review.

(12)

If the court determines … that a decision of the Secretary of State was flawed, its only powers are – (a) power to quash the order; (b) power to quash one or more obligations imposed by the order; and (c) power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes.

(13)

In every other case the court must decide that the control order is to continue in force.

(14)

If requested to do so by the controlled person, the court must discontinue any hearing in pursuance of directions under subsection (2)(c) or (6)(b) or (c).”

Introduction

On the issue as to whether the present proceedings should be stayed on the basis that they serve no useful purpose as the control orders against both respondents have been revoked, Miss Harrison contends first that I have no power to stay these proceedings; and second that even if I have such power to stay these proceedings, it would be wrong to grant a stay, as these proceedings constitute an abuse of process on the basis that the Secretary of State has made no effort to comply with the duty explained by the House of Lords in Secretary of State for the Home Department v AF(No. 3) [2009] UKHL 28 (“AF (No 3)”); third that the existing section 3(10) proceedings provide the appropriate forum for determining this issue; and fourth that there are other reasons, which justify continuing the present section 3(10) proceedings.

The issues which have to be considered are:-

Is there power for the Court to stay section 3(10) proceedings under the CPR?

Miss Harrison contends that the court has no power to terminate 3(10) proceedings because the only way in which they can be terminated is as set out in section 3(14) of the 2005 Act, which provides that “if requested to do so by the controlled person, the court must discontinue any hearing”. I am unable to accept that this provision provides the only basis on which section 3(10) proceedings can be discontinued for three separate but overlapping reasons.

First, section 3(14) does not state expressly or impliedly that it sets out the only way in which a court can discontinue 3(10) proceedings and if the legislature wanted there to be other ways of discontinuing the section 3(10) proceedings, they would then have used the wording which they did. Second, Miss Harrison’s interpretation entails rewriting section 3(14) so as to state that that it specifies the only way in which section 3(10) proceedings can be discontinued. Third, Miss Harrison’s interpretation would lead to some very strange results so that if, for example, a controlled person died during the course of the control order and no personal representatives had been appointed for him or her, then it would seem to follow that the section 3(10) proceedings would still have to continue. The same position might also apply if the controlled person absconded and could not be found.

Mr Robin Tam QC counsel for the Secretary of State takes a neutral line as to whether the present section 3(10) proceedings should be stayed, but he contends that I do have power to do so because of the overriding objectives in the CPR. It is clear that the overriding purposes apply to control order proceedings, but subject to one modification in CPR 76.2 and that is because of two provisions in the CPR. First, CPR 76 states that:-

“(1)

Where this Part applies, the overriding objective in Part 1, and so far as relevant any other rule, must be read and given effect in a way which is compatible with the duty set out in paragraph (2).

(2)

The court must ensure that information is not disclosed contrary to the public interest.

(3)

Subject to paragraph (2), the court must satisfy itself that the material available to it enables it properly to determine proceedings.”

Second, CPR 1.2 states that: -

“The court must seek to give effect to the overriding objective when it –

(a)

exercises any power given to it by the Rules; or

(b)

interprets any rule subject to rules 76.2 and 79.2”.

As I am not concerned with the issue specified in CPR 76.2 (namely ensuring that information is not disclosed contrary to the public interest), I must apply the CPR’s overriding objectives as they remain generally applicable to control order proceedings. CPR Part 1 provides that:-

“1.1

The overriding objective

(1)

These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.

(2)

Dealing with a case justly includes, so far as is practicable –

(a)

ensuring that the parties are on an equal footing;

(b)

saving expense;

(c)

dealing with the case in ways which are proportionate –

(i)

to the amount of money involved;

(ii)

to the importance of the case;

(iii)

to the complexity of the issues; and

(iv)

to the financial position of each party;

(d)

ensuring that it is dealt with expeditiously and fairly; and

(e)

allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

I.3

Duty of the parties

The parties are required to help the court to further the overriding objective.

1.4

Court’s duty to manage cases

(1)

The court must further the overriding objective by actively managing cases.

(2)

Active case management includes –

…. (c) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;

…

3.3

Further, CPR 3.1 provides:-

3.1

The court’s general powers of management

(1)

The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.

(2)

Except where these Rules provide otherwise, the court may

…. (f) stay the whole or part of any proceedings or judgment either generally or until a specified date or event;

… (m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.”

I therefore conclude that subject to CPR 76.2(2), which is not applicable in this case, a court may deploy any of its CPR case management powers including those set out at CPR 1.4(2) (c) in control order proceedings, bearing in mind the matters set out at CPR 1.1(2)(c). This would enable me to decide which issues need full investigation and trial and which issues I should dispose of summarily.

Whether the function of the present section 3(10) proceedings could extend to thembeing used to determine if the Secretary of State’s applications for the control orders against the respondents was an abuse of process on the basis that the principles for disclosure set out in AF(No.3) have not been complied with even though both control orders have been revoked.

Miss Harrison submits that even if the court has the power to discontinue section 3(10) proceedings, it should not do so in this case bearing in mind that it was contended that the application for the control order in this case constituted an abuse of process because the principles for disclosure set out in AF (No. 3) have not been complied with. She points out that the Special Advocate acting for BP in this case had stated in his skeleton argument for the July 2010 closed hearings that the Secretary of State had made no serious attempt to comply with the principles for disclosure in accordance with the principles set out in AF(No. 3). So she says that the application for a control order based on the submission of the Closed Statement constitutes an abuse of process. I cannot comment on that statement as no decision has yet been made on the closed/open divide and the Secretary of State has not been put to her election, save I can say that there has been much information in the open case.

I am unable to agree with Miss Harrison because her submissions are based on what I respectfully consider to be an erroneous approach to the function of section 3(10) proceedings. The purpose of those proceedings is to ascertain whether the court should exercise the statutory powers given to it and as is stated in section 3(12) in relation to the powers of the court (with my emphasis added) that:-

“its only powers are – (a) power to quash the order; (b) power to quash one or more obligations imposed by the order; and (c) power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes”.

None of those powers are now relevant to the respondents’ control orders because both of them have been revoked and the powers given to the court in the 2005 Act do not extend to finding an abuse of process. After all, the legislature could not have made it clearer as to what powers were vested in the Court by using the words in section 3(10) that “the only powers are”. Thus the position is that no further purpose can be gained by pursuing these proceedings and that they should be stayed.

For the purpose of completeness I should add that even if this analysis was incorrect and the present section 3(10) proceedings could be continued to ascertain if there was an abuse by the Secretary of State not complying with his disclosure duties, they would be unable to fulfil that function.

In reaching that conclusion, I have not overlooked two submissions of Miss Harrison. First, she contends that if it transpires after the closed hearing that the Secretary of State has to be put to her election as to whether to disclose some material and she then fails to do so, this shows the proceedings are an abuse. I am unable to agree as there might have been many other matters, which the Secretary of State was prepared to disclose and which would have shown that there were reasonable grounds for imposing the order. In my experience, there have been many instances where that is precisely what has happened. I should add that I have no reason whatsoever to believe that if the Secretary of State is put to her election, she will refuse to disclose matters and any suggestion to the contrary has no basis in this case.

Second, Miss Harrison sought to derive assistance from the approach of the Court of Appeal in AN and others v Secretary of State [2010] EWCA Civ 869 in which Maurice Kay LJ (giving the only reasoned judgment with which other members of the Court agreed) said that:-

“31.. it is unlawful for the Secretary of State to begin to move towards the making of a control order if, in order to justify, he would need to rely on material which he is not willing to disclose to the extent required by AF No.3 regardless of his understanding of the law at the time”.

In the three cases that were then before the Court of Appeal and were the subject of that judgment, it is significant that it was conceded on behalf of the Secretary of State that he would not have sought the permission of the court to make the control orders if he or his predecessors had realised the law was as AF (No.3) had declared it to be. That was an extreme case and is very different from the position in the present case because the Secretary of State contends that proper disclosure has taken place and indeed there is much information in the open case so that the Secretary of State considers that there will be compliance with the AF (No.3) requirements. Pending the completion of the Rule 29 judgment in this case, I am not yet in a position to say if there has been full compliance or if there will be full compliance. So the decision in that case was based on different facts but I appreciate that in AN, Maurice Kay LJ also stated (with my emphasis added) that:-

“24 …The statute has vested the power to make a non-derogating control order exclusively in the hands of the Secretary of State and, in principle, if an order is in truth legally flawed, it attracts the usual consequence of a legally flawed administrative act, even if the legal flaw was not observed when the order was first considered by a court. The usual consequence is quashing ab initio: Ridge v Baldwin [1964] AC 40 per Lord Reid at page 80. That this reasoning should apply to control orders is supported by section 12 of the 2005 Act which entitles a person who has been convicted of a criminal offence of breach of a control order which is later quashed to appeal successfully against his conviction to the Court of Appeal Criminal Division which must allow his appeal: section 12(3). The fact that this applies also to court-ordered derogating control orders does not weaken the point”.

The difficulty is to establish how it can be shown that there has been what Maurice Kay LJ describes as a “legally flawed administrative act” in the present section 3(10) proceedings in which, unlike what occurred in the AN case, there has been some open disclosure and a wish by the Secretary of State to satisfy the AF (No. 3) requirements. In my view for reasons which I will now seek to explain, the section 3(10) proceedings are not appropriate for deciding if the Secretary of State’s disclosure constitutes an abuse or a “legally flawed administrative act”.

As to the task of the court in section 3(10) proceedings, the unappealed decision of the Court of Appeal in Secretary of State for the Home Department v MB [2007] QB 415 [40-46] establishes that the task of the court is to determine whether the decision to make the control order was flawed at the time it was made and thereafter. In carrying out this exercise, the court does not consider whether sufficient closed material was disclosed when the order was made, but instead it looks at the effect of all the evidence including of course the evidence which the Secretary of State has been ordered to disclose or voluntarily agrees to disclose in gist or in any other form. In other words, the court does not decide or have to decide if enough material was put in open when the order was made but it looks at that material together with material which is subsequently made open as a result of the section 3(10) proceedings to see if it was appropriate to impose the control order.

In my experience, that exercise will not enable a court to decide if there has been an abuse because there has been inadequate disclosure when the order was made or whether the Secretary of State made the control order without the necessary intention to disclose the appropriate material because the focus of the court during the section 3(10) proceedings is on the material which is before it in the open and in the closed hearing. Indeed the Court of Appeal was not dealing with section 3(10) proceedings in any of the three cases which were considered in the AN judgment and my recollection of having dealt with two of those cases at first instance relating to AE and AF, no section 3(10) proceedings were then before the court as they had been concluded much earlier.

I conclude that the function of the present section 3(10) proceedings could not extend to them being used to determine if the Secretary of State’s applications for the control orders against the respondents were an abuse of process on the basis that the principles for disclosure set out in AF(No. 3) have not been complied with even though both control orders have been revoked.

If the section 3 (10) proceedings could extend to them being used to determine if the Secretary of State’s applications for the control orders against the respondents were an abuse of process on the basis that the principles for disclosure set out in AF (No.3) have not been complied with,would it be appropriate to perform that function now that the control orders have been revoked?

Even if I am wrong and the section 3(10) proceedings could be used to discover if there was inadequate disclosure so that there has been an abuse of process, I would have to consider the overriding objectives of the CPR which I set out in paragraph 22 above. This would require consideration of the relevant factors against the background that the control orders against the respondents have been revoked and that it is highly unlikely they will be reimposed.

The present rule 29 proceedings have not been concluded and a further hearing might well be needed because the Secretary of State has to reply to further representations by the respondents’ closed counsel. In any event, further time will be required to consider them by both the closed counsel and by me. The time required for this will be minimal when compared with the actual section 3(10) proceedings, which will follow with both open and closed hearings.

There are a number of consequences of pursuing the section 3(10) proceedings which cause me particular concern and all of them must be considered in the light of the fact that the control orders in this case, which were of short duration, have been revoked and that it is highly unlikely that they will be imposed again. I stress that the consequences which I will now outline would not have to be considered if the control orders were still in force.

First, the present ongoing section 3(10) proceedings will occupy the four sets of lawyers involved in this case for a considerable period of time. I was told by Mr. Tam that the hearings in front of SIAC lasted for 15 days with the courts often sitting very long hours but there were a number of respondents in that case and there were more issues than in the present section 3(10) proceedings. In my view doing the best I can the section 3(10) proceedings are unlikely in the future to take less than four or five days. In addition to that there will be much preparation required essentially by the lawyers but also by the judge. Furthermore a representative of the Security Service will be required to give evidence, and that will entail much preparation.

Second, the legal cost of this exercise will be very considerable as the Secretary of State has two counsel and a solicitor, as do the respondents, while each respondent has two Special Advocates in addition. They will not merely have to attend the hearings but they also have to prepare for them with all the lawyers being publicly-funded.

Third, the Administrative Court has particular pressures with a limited number of judges nominated and vast quantities of work. I was recently told that in the Administrative Court, there are at present outstanding in London 52 oral hearings for permission, 768 renewal oral applications, 634 substantive oral hearings as well as 412 paper applications outstanding. This case is likely to require up to seven judge days’ time because apart from the four or five days spent on the hearing, there will be an additional two days required for pre-reading and judgment writing.

Fourth, much time of the Security Service will be spent preparing for and appearing at the closed hearing

Fifth, there are a substantial number of hearings outstanding in other control order cases and because of the closed nature of the evidence there are only a limited number of staff that can be present at such hearings and a limited number of courts available. In addition there are only two courts available. There is already a substantial backlog of control order cases requiring closed hearings. By continuing the section 3(10) proceedings, these courts and staff are likely to be out of operation for five days or so.

Against this it is necessary to consider the overriding objectives in the CPR and in particular, as I have already explained allotting to this case “an appropriate share of the court’s resources whilst taking into account the need to allot resources to other cases” as well as “dealing with the case in a way in which is proportionate… (ii) to the importance of the case”.

Bearing in mind the fact that these control orders, which were only in operation for a short time, have now been revoked, I have come to the clear conclusion that even if it was appropriate to pursue the section 3(10) proceedings, then none of the reasons put forward by Miss Harrison would justify continuing the proceedings and so I should stay these proceedings. Again I must stress that nothing I have said is meant to have any application to cases in which control orders are still in force but, as I have explained, the present position is very different and it should not be regarded as a precedent.

I am fortified in coming to this conclusion by the fact that the respondents can bring claims for damages against the Secretary of State for interference with their rights under the ECHR. When the oral hearing took place, the Court of Appeal’s decision in Al Rawi v The Security Services [2010] 3 WLR 1069 meant that it was not possible to have closed hearings with a Special Advocate in damages claims, but that the ordinary rules concerning Public Interest Immunity (“PII”) should apply. That decision has since the oral hearing been upheld by a majority of the Supreme Court ([2011] UKSC 34) although there might be relevant differences in the reasoning of the majority. I cannot see why those rules on PII will preclude the respondents bringing claims for damages in civil claims although the Secretary of State will be unable to rely on documents for which she is entitled to claim Public Interest Immunity. It is noteworthy that traditionally claimants have argued against the Special Advocate procedure and in favour of PII procedure and so it must be assumed that this procedure assists them.

I conclude that if the section 3(10) proceedings could extend to them being used to determine if the Secretary of State’s applications for the control orders against the respondents constituted an abuse of process on the basis that the principles for disclosure set out in AF(No.3) have not been complied with, then it would not be appropriate to perform that function now that the control orders have been revoked. Therefore I have concluded that I am bound to exercise my powers to stay these proceedings subject to the issue to which I now turn.

If the current section 3 (10) proceedings could be used to determine whether the Secretary of State’s applications for the control orders against the respondents was an abuse of process, are there any other reasons justifying the continuation of the present section 3 (10) proceedings even though both orders have been revoked?

Assuming that I am wrong and there is jurisdiction to continue the present section 3(10) proceedings even though they have been revoked, I must consider the reasons relied on by Miss Harrison for wishing to continue the section 3(10) proceedings. She says in the words of BP’s written skeleton argument that “it is a primary motivation of BP in pursuing these proceedings that he wishes to have a fair chance of challenging the case against him (which he did not have in front of SIAC) in order to clear his name”.

The section 3(10) proceedings will not help in this exercise because the task is not to see if BP was engaged in terrorist activities but in the words of section 2(1) of the 2005 Act whether the Secretary of State:-

“(a)

has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and (b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual.”

It is clear that the inquiry is focussing on the Secretary of State’s reasonable belief rather than on what occurred and that is an effective answer to this complaint, but I should explain that in the SIAC proceedings the respondents were heavily criticised. Although the nature of the SIAC proceedings were different from these control order proceedings. The SIAC judgment, which is a public judgment shows that the respondents do not have high reputations.

After a hearing lasting three weeks and involving parties other than the respondents, SIAC concluded in relation to CB that “we are satisfied that he was an Al Qaeda operative who posed and still poses a serious threat to the national security of the United Kingdom and that, subject to the issue of safety on return, it is conducive to the public good that he should be deported” [16].

As to BP, SIAC concluded that “he was on balance of probabilities a knowing party to [CB]’s plans” and “he can safely be taken to have been willing to participate with [X] in [CB’s] plans” [27]. It seems unlikely that the control order proceedings could or would clear the reputation of either respondent because not only of these conclusions but also because the focus of the attention of the Court will be on the issues set out in section 2(1) of the 2005 Act as I explained in paragraphs 48 and 49 above.

A second reason why the respondent wishes the present proceedings to continue is explained in his written skeleton which argues that “revocation of the [control] order is not a sufficient remedy both [the respondents] seek an order quashing the original decision to impose the order as void ab initio and can seek damages for the 9 ½ weeks that it was in place”. Indeed a prime purpose of the respondents is to use the present proceedings to obtain an order quashing the original decision as void ab initio in order to launch a claim for damages.

In addition, unlike the case of AN, the respondents are not the subject of criminal proceedings and so do not require a quashing order so that criminal proceedings can be halted on the basis that they cannot be criminally liable for acts done in breach of a control order which is void ab initio.

Third, the amount of compensation that the respondents could recover would be very limited. The starting point for assessing the compensation that might be payable to the respondents if they were successful in establishing an interference with their rights by the Secretary of State by the imposition of the control orders is the decision of the European Court of Human Rights in A v United Kingdom (2009) 49 EHRR 29 in which the claimants were awarded compensation for interference with their rights under Article 5 of the ECHR. The approach of that court was that in general large sums were awarded as just satisfaction in respect of unlawful detention, but the claimants in that case were in a different position because there existed a public emergency and so the sums payable were reduced.

The court explained that:-

“252 ...all the applicants in respect of whom the Court has found a violation of article 5(1) became, immediately upon release in March 2005 the subject of control orders. It cannot therefore be assumed that, even if the violations in the present case had not occurred, the applicants would not have been subjected to some restrictions on their liberty.

253.

Against this background the court finds the circumstances justify the making of an award substantially lower than that which it had occasion to make in other cases of unlawful detention.”

The type of award that was made was €3,900 for the first, third and sixth applicants who had all been detained for periods over three years while an award of €3,400 was made to the fifth applicant who had been detained in custody for two years four months and had then been under subsequent house arrest for another eleven months.

These figures suggest that the appropriate rate for detention in prison was in the region of €1,000 per year. In the case of the respondents at that rate that would make their claims worth about one-sixth of that but of course they were subject to control orders which were much less onerous than being detained in prison. The respondents in common with the applicants in the A case had been deprived of their liberty because of the wish to reduce the risk of terrorism which meant that “the government was under an obligation to protect the population of the United Kingdom from terrorist violence” [252]. Although it is not possible to predict the exact sum which each of the respondents might receive by way of compensation if successful, it is likely to be in the region of €200.

For the purpose of completeness I should add that I have heard submissions as to whether the proposed proceedings in the present case should be postponed so that the Secretary of State would have an opportunity of reconsidering the open/closed divide in the light of the extradition proceedings and other proceedings in the United States which related to other matters which related in different ways to the respondents. This issue is now academic as the proceedings are being stayed but it would also have been academic for an additional reason because it was common ground that the closed hearing could not proceed on the day of the hearing but that there would have had to be another hearing to deal with outstanding matters. That could not be arranged until October which would have given the Secretary of State adequate time to deal with the open/closed divide.

For the reasons which I have sought to set out the proceedings are hereby stayed. In addition with the consent of the respondents, I have discharged the anonymity orders granted in favour of the respondents in these proceedings as they serve no purpose.