A.F. v. THE UNITED KINGDOM
Inadmissible
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
1. The applicant, A.F., is a dual United Kingdom/Libyan national, who was born in 1980 in the United Kingdom and lives in Manchester. He was represented before the Court by Mr S. Creighton, a lawyer practising in London with Bhatt Murphy Solicitors. The Government were represented by their agent, Ms M. Addis, Foreign and Commonwealth Office. 2. The present case concerns three control orders which were made against the applicant under the now repealed Prevention of Terrorism Act 2005 (“the PTA 2005”). The facts of the case may be summarised as follows. 3. On 24 May 2006, the Secretary of State (made a control order (PTA 6/2006) against the applicant, pursuant to section 2 of the PTA 2005, on the grounds that the Secretary of State had reasonable grounds for suspecting that the applicant was or had been involved in terrorism-related activity and considered it necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make such a control order. The control order was served on the applicant on 2 June 2006. It required him to remain in his home for eighteen hours per day (“the curfew period”) and contained the following additional restrictions: - to wear at all times an electronic monitoring tag; - to report by telephone to a monitoring company to ensure the curfew period was observed; - to remain within a marked area in Manchester; - to allow police offices and other authorised persons to enter and search his flat; - not to allow visitors (other than his father, his legal representative and members of the emergency services) to his flat except with prior authorisation of the Home Office and, in respect of such a visitor, to supply the name, address, date of birth and photographic identity of the individual to the Home Office; - to attend only one designated mosque and, while there, not to lead prayers, give lectures or provide any religious advice; - a prohibition on all communication equipment (including access to the internet) in the flat save for one fixed telephone line; - a prohibition on the use of mobile phone (including allowing someone to use one in the flat); - to surrender his passport and any other travel documents; - to inform the Home Office of any departure from the United Kingdom and of any intended return; - a prohibition on entering any airport, port or international railway station; - various financial restrictions including, inter alia, on owning more than one bank account and on international money transfers without Home Office consent; - to provide the Home Office with details of any employment or change of employment; - not to associate with anyone else subject to a control order; and - not to associate or communicate, directly or indirectly, at any time or in any way with an individual named in the control order. 4. In August 2006 the Secretary of State served on the applicant a Security Service statement setting out the public or “open” reasons for the control order and the justifications for the various obligations imposed under it. The Security Service statement alleged that the applicant had links with extremist individuals in Manchester affiliated to the Libyan Islamic Fighting Group. No further information was given concerning these allegations, nor was any of the evidence supporting them communicated to the applicant. 5. On 11 September 2006, following the decision of the Court of Appeal in another control order case, Secretary of State for the Home Department v JJ and Others [2006] EWCA Civ 1141, the control order was revoked by the Secretary of State. The Secretary of State then made a second control order (control order PTA 33/2006) against the applicant. Under this control order, the curfew period was fourteen hours per day. The other restrictions were similar to those set out in the first control order, save that the applicant was now prohibited from associating with a further five individuals who were said to be associated with the Libyan Islamic Fighting Group. 6. In February 2007 control order PTA 33/2006 was reviewed by the High Court (Ouseley J) at a hearing under section 3(10) of the PTA 2005. The Secretary of State disclosed (“open”) evidence in support of his assessment that the applicant was or had been engaged in terrorism related activity and that the control order was necessary. None of the statements or evidence produced by the Secretary of State disclosed any specific allegations of wrongdoing against the applicant. Two special advocates were appointed to represent the applicant at the section 3(10) hearing. The applicant met with one special advocate once on 30 August 2006. He maintained that he was unable to give the special advocate any meaningful instructions of any kind. 7. Ouseley J handed down his judgment on 30 March 2007. This consisted of an open judgment and a closed judgment. Ouseley J found that the material disclosed to the applicant did not show reasonable grounds for suspecting that he had been or was involved in terrorism-related activity; it was clear, however, that the material which had been disclosed to the court and to the special advocates showed more than reasonable grounds for that suspicion. He nonetheless found that the control order had to be quashed because, taken cumulatively, the restrictions in it amounted to a deprivation of liberty and thus violated Article 5 of the Convention. 8. On 29 March 2007 the Secretary of State made a third control order against the applicant, PTA 4/2007. This Order was served on the applicant on 30 March 2007. It reduced the curfew period to twelve hours per day from the previous fourteen (from 7 p.m. to 7 a.m.). The geographical area to which the applicant was restricted in the remaining twelve hours of each day was enlarged to include a part of Manchester city centre, he was permitted to receive one visitor at his home between 7 p.m. and 7 a.m. without prior approval from the Home Office and he was granted permission to attend three different mosques. The materials served on the applicant in relation to control order PTA 4/2007 contain no further indication as to the case against him. 9. Ouseley J gave leave to appeal directly to the House of Lords against his judgment of 30 March 2007. The appeal was heard by the House of Lords, sitting as a panel of five judges, at the same time as three other control order cases. Judgment in all the cases was given on 31 October 2007 (Secretary of State for the Home Department v. E and another [2007] UKHL 45-47). The majority of the House of Lords (Lord Bingham, Lord Brown and Baroness Hale) held that, considered cumulatively, the restrictions amounted to a deprivation of liberty and had to be quashed, although Lord Brown specified that a control order which confined the individual to his home for 16 hours or less, regardless of the severity of the other restrictions, would not amount to a deprivation of liberty. Lords Hoffmann and Carswell dissented. A majority of their Lordships (Lords Brown, Hoffmann and Carswell) therefore held that a control order which confined a person to a residence for sixteen hours per day or less, even when coupled with other restrictions, did not amount to a deprivation of liberty under Article 5. Their Lordships were unanimous in their view that the criminal limb of Article 6 did not apply to control order proceedings, since the proceedings involved an assertion that a person was suspected of criminal activity, not that he was guilty of it. A majority (Lords Bingham, Brown and Carswell, and Baroness Hale) nonetheless held that, under the civil limb of Article 6, if it were necessary to disclose material to a controlled person in order to afford them a fair hearing, then either disclosure had to be made or the material could not be relied upon. They further held that the use and contribution of the special advocates in the applicant’s case could have been sufficient to afford him a fair hearing notwithstanding that none of the allegations and evidence relied upon against him was disclosed to him. In light of their conclusions, the House of Lords reversed Ouseley J’s decision to quash control order PTA 33/2006. Beyond their general observations on Article 6, their Lordships made no specific finding as to whether the Article 6 had been breached in the applicant’s particular case and instead remitted this issue back to the High Court for its consideration. 10. On 31 October 2007, following the House of Lords’ judgment, the Secretary of State modified PTA 4/2007. That modification increased the period that the applicant was confined to his residence to 16 hours a day (from 5 p.m. to 9 a.m., later modified to 4.30 p.m. to 8.30 a.m.). The further restrictions set out in the control order continued in force. The Secretary of State introduced a further obligation prohibiting the applicant from attending pre-arranged meetings outside his residence, other than for health, educational or employment purposes and at a mosque. 11. The present application was lodged on 5 February 2008. When it was lodged, the hearing concerning PTA 4/2007 was pending before the High Court. The proceedings concerning PTA 33/2006 (which had been remitted to the High Court by the House of Lords for consideration of the Article 6 issue in the case) were also heard in the High Court before Stanley Burnton J. In judgments given on 10 March 2008 and 9 April 2008 he found that, given the lack of disclosure of both the allegations against applicant and the evidence supporting them, the proceedings concerning PTA 33/2006 did not comply with Article 6. He further found that that conclusion would apply to the pending proceedings concerning PTA 4/2007. 12. The Secretary of State appealed against those findings to the Court of Appeal, which, on 17 October 2008 and by a majority of two to one, allowed the appeal. The majority found that there was no absolute rule that Article 6 required the gist or essence of the allegations and evidence to be disclosed to the person subjected to a control order (AF and others v. Secretary of State for the Home Department [2008] EWCA Civ 1148). The applicant and two other controlled persons whose cases had been heard by the Court of Appeal were given leave to appeal to the House of Lords. 13. On 10 June 2009, their Lordships unanimously allowed the appeal (AF and others v. Secretary of State for the Home Department [2008] UKHL 28). They found that, in light of this Court’s judgment in A. and Others v. the United Kingdom [GC], no. 3455/05, ECHR 2009, there was an absolute rule that Article 6 required that a controlee be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement was satisfied there could be a fair trial notwithstanding that the controlee was not provided with the detail or the sources of the evidence forming the basis of the allegations. Where, however, the open material consisted purely of general assertions and the case against the controlee was based solely or to a decisive degree on closed materials the requirements of a fair trial would not be satisfied, however cogent the case based on the closed materials might be. 14. On 11 June 2009 the applicant wrote to this Court seeking leave to amend the application in the light of the House of Lords’ judgment. On 25 June 2009 he was informed that, on 23 June 2009, the President of the Chamber to which the case had been allocated had decided that, since the case would be remitted to the lower courts for further consideration, it was appropriate to adjourn the Court’s own consideration of the application. 15. As a result of the House of Lords’ judgment, the Secretary of State decided not to make the required disclosure to the applicant and instead to revoke control order PTA 4/2007. 16. On 18 January 2010, the High Court (Silber J) handed down another judgment finding, inter alia, that: (i) the control order against the applicant had to be regarded as having been revoked (or quashed) ab initio; and (ii) the disclosure requirements identified by the House of Lords applied to a claim for damages arising out of the imposition of a control order. The Secretary of State’s appeal against Silber J’s judgment was dismissed by the Court of Appeal on 28 July 2010 (AN v. Secretary of State for the Home Department [2010] EWCA Civ 869). 17. The applicant issued legal proceedings against the Secretary of State on 21 March 2012, claiming damages for the time he had spent under the control orders. In October 2013 the claim was dismissed, pursuant to a consent order agreed between the parties. The schedule to the consent order provided that the applicant would accept the sum of damages offered by the Government: “in full and final settlement of the entirety of his claim herein and any other claims which he might have in relation to the control orders listed below that he was subject to between 25 May 2006 and 27 August 2009: i. PTA6/2006 ii. PTA33/2006 iii. PTA4/2007 iv. PTA23/2008 v. PTA13/2009 ...”.