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A defendant’s right to a fair hearing in control order cases takes precedence over government claims of secrecy, the House of Lords has ruled.
Under the Prevention of Terrorism Act 2005, defendants are not allowed to know the evidence against them where the judge agrees that its disclosure would be contrary to national security.
However, in JJ & MB & E v Secretary of State for the Home Department v JJ, MB, AF, E and another, the majority of law lords concluded that the defendants had not enjoyed a fair hearing due to their inability to know the key accusations against them.
Lord Brown referred to the right to a fair hearing as “not merely an absolute right but one of altogether too great importance to be sacrificed on the altar of terrorism control”.
The law lords also upheld, by a majority of 3:2, an earlier ruling by the Court of Appeal that the home secretary had no power to impose control orders involving 18-hour curfews on suspects.
Rejecting the government’s arguments on this point, Lord Bingham likened the curfews to being “in solitary confinement” and conditions generally as akin to “detention in an open prison”.
The law lords also held, however, that a 14-hour curfew did not breach the right to liberty provisions in Art 5 of the European Convention on Human Rights.
Ali Naseem Bajwa, a barrister at 25 Bedford Row who acted for the appellant in MB, says the judgment is likely to affect most of the control orders currently in place and the secretary of state’s ability to make control orders in future.
He adds that “any procedure which adversely affects an accused person but prevents him from knowing the evidence—in some cases, even the allegation—against him is an affront to justice”.
Eric Metcalfe, JUSTICE’s director of human rights policy, says the rulings are a victory for fairness over secrecy, and liberty over suspicion.
The House of Commons is debating proposals announced in the Queen’s Speech this week to increase the length of time alleged terror suspects can be held without being charged from 28 to 56 days.
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