UK Liberty

Control Order appeal fails

Posted in control orders by ukliberty on May 23, 2008

AH v Secretary of State for the Home Department.

The background is particularly interesting – it is the case where the suspected terrorist was charged with terrorism offences, acquitted of all charges, then issued with a control order on the steps of the court:

AH is an Iraqi national, who first arrived in the United Kingdom on 21st July 2000 and claimed asylum. His claim was refused on 30th October 2001, but he was granted four years exceptional leave to remain. He travelled to Iraq in June 2004 and returned to the United Kingdom in September 2004.

On 26th January 2005 he was detained pending deportation to Iraq. He appealed to the Special Immigration Appeals Commission. The Secretary of State withdrew his decision to deport AH on 23rd November 2005 and he was released from immigration detention. As he left prison, he was arrested under the Terrorism Act 2000 and charged with terrorism offences. He was tried at Woolwich Crown Court in August 2006.

On 29th August 2006, he was acquitted of all charges. On 31st July 2006, the Secretary of State applied for permission to make a non-derogating Control Order. Permission was granted by Sullivan J on the same date. The order was served on AH on the day of his acquittal.

The order was renewed on 27th July 2007 and modified to correct an error on 31st July 2007. On 17th April 2008, the obligations in the Control Order were significantly relaxed.

In these proceedings, AH challenges the Secretary of State’s decision to make the first Control Order by way of a review under Section 3(10), appeals against the Secretary of State’s decision to renew the Control Order under Section 10(1) and appeals against the Secretary of State’s refusal to revoke the Control Order on the 26th September 2007 under Section 10(3)(a).

The issue in each case is whether or not the decision of the Secretary of State was flawed: Section 3(10) and (10)(4)(a). The review of and appeal against the making and renewal of the Control Order are not academic: criminal proceedings have been undertaken against AH, for breaches of the order, which will lapse if the orders are quashed; and the continuance of the order in its varied form depends upon the lawfulness of the original and renewed order.

Yet again some interesting points about closed material and the fairness of the hearing, and a question as to whether or not the obligations constitute a deprivation of liberty (they do not).  AH also claimed Article 3 (prohibition of torture) is engaged – the judge said that wasn’t “remotely arguable”.

“the Secretary of State’s decision to make, renew and continue the Order are not flawed. … I uphold the making and renewal of the Control Order and dismiss the appeal against renewal and the Secretary of State’s refusal to abrogate it.

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