Home Secretary v AF (No 3) [2009] UKHL 28

Key point

  • Under Article 6 ECHR, there is an obligation that a person subject to control orders should be informed of the essence of the case against him/her
  • The House of Lords felt bound, as a matter of obligation in international law, by a previous decision of the Grand Chamber in Strasbourg in A v United Kingdom (2009) 49 EHRR 625

Facts

  • Appellants AE, AF and AN were subjects of non-derogating control orders as suspected terrorists, imposed by the Home Secretary under the Prevention of Terrorism Act 2005
  • In a conjoined appeal to the House of Lords, the appellants contested that their rights under Article 6 of the European Convention on Human Rights (ECHR), which protects the right to a fair hearing had been violated, as their control orders had been made under a closed material procedure whereby some or all material of their case were withheld in the interests of national security

Issue

  • Had there been a breach of the appellants’ right to a fair trial under article 6?

Held (House of Lords)

  • Appeals allowed
  • Following the dicta in A v United Kingdom (2009) 49 EHRR 625, Article 6 imposed an absolute requirement that a person subject to a control order be given sufficient information as to be able to effectively challenge the case against him/her
  • Each case was remitted to the High Court for further consideration

Lord Phillips

  • 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]
  • But 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 Hoffmann

  • He disagreed with A v United Kingdom: ‘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’: [70]
  • 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]
  • Thus, there is no other choice for the House of Lords but to accept and follow the decision in A v United Kingdom

Lord Rodger

  • ‘Even though we are dealing with rights under a United Kingdom statute, in reality, we have no choice: Argentoratum locutum, iudicium finitum – Strasbourg has spoken, the case is closed’: [98]

Commentary

  • In this judgment, the Lords displayed different attitudes towards the decision in A v United Kingdom. While Lord Hoffman showed his clear disagreement with the judgment, Lord Hope was more optimistic about it, justifying the Grand Chamber’s approach on the basis of the principle of rule of law
  • This judgment reinforces the mirror principle as conceived by Lord Bingham in R (Ullah) v Special Adjudicator – that UK courts have an obligation ‘to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’: [20]
  • It has since been clarified that UK courts are not bound by the decisions of the ECtHR; see for instance R v Horncastle, where the Supreme Court declined to follow Al-Khawaja v UK