Prevention of Terrorism Act 2005 - Incompatibility With Human Rights

Incompatibility With Human Rights

In April 2006, in his judgment in the case of Re MB, Mr Justice Sullivan issued a declaration under section 4 of the Human Rights Act 1998 that section 3 of the Prevention of Terrorism Act 2005 was incompatible with the right to fair proceedings under article 6 of the European Convention on Human Rights. Mr Justice Sullivan held:

"To say that the Act does not give the respondent in this case, against whom a non-derogating control order has been made by the Secretary of State, a fair hearing in the determination of his rights under Article 6 of the Convention would be an understatement. The court would be failing in its duty under the 1998 Act, a duty imposed upon the court by Parliament, if it did not say, loud and clear, that the procedure under the Act whereby the court merely reviews the lawfulness of the Secretary of State's decision to make the order upon the basis of the material available to him at that earlier stage are conspicuously unfair. The thin veneer of legality which is sought to be applied by section 3 of the Act cannot disguise the reality. That controlees' rights under the Convention are being determined not by an independent court in compliance with Article 6.1, but by executive decision-making, untrammelled by any prospect of effective judicial supervision."

However, on 1 August 2006, the Court of Appeal reversed this judgement (in part). They agreed that MB's Article 5 rights had been breached, but said that it did not infringe on his Article 6 rights. (Secretary of State for the Home Department v. MB EWCA Civ 1140).

On the point of particular Convention rights being breached, it is interesting to note the distinction the court made in the above case. Indeed, following Secretary of State for the Home Department v JJ the House of Lords held that the restrictions imposed within the control would be open to challenge on the basis of incompatibility, with focus on Art 8 (right to privacy and family life), Art 10 (freedom of speech) and Art 11 (freedom of assembly). In the case of JJ, the House of Lords drew an analogy between a prisoner in an open prison, and a suspected terrorist under a control order. Consequently, it was viewed as an anomaly for the Home Secretary to enforce harsher conditions on an individual who has not been convicted of any crime, in comparison with an open prisoner who enjoys freedom of association. The court brought up the example of the detainee being in a "prison with three walls", the 4th wall of course being that of voluntary deportation, which is a derogation from Art 5 under Art 5(1)(g) of the ECHR (detention with a view to deport is compatible). However, in reality, such a decision is highly unlikely, as the detainee would be unwilling to return home and be subjected to torture and/or inhuman/degrading treatment