Letter to the Chair from Rt Hon Alan Johnson
MP, Home Secretary, dated 1 October 2009
A & OTHERS V
UK—FEBRUARY 2009 JUDGMENT
OF THE
EUROPEAN COURT
OF HUMAN
RIGHTS (ECTHR)
Thank you for your letter dated 15 July
which expands upon your queries on control orders (11 June
2009) to include 28 day pre-charge detention. I sent you
a substantive response to your June letter on 15 September.
In response to the specific questions you have
raised in your July letter:
1. What steps has and is the Government taking
to implement the Grand Chamber judgment in A & Others v UK?
As you know, Part 4 of the Anti-terrorism,
Crime and Security Act 2001 (ATCSA) was repealed in March
2005 when the Prevention of Terrorism Act 2005 came
into force. The 2005 Act introduced control orders which,
unlike the provisions of Part 4 of the ATCSA, apply to British
citizens as well as foreign nationals and stateless persons.
The United Kingdom continues to detain individuals
pending their deportation from the United Kingdom as provided
for under Article 5(1)(f) of the Convention. The statutory basis
for this is contained in Schedule 3 to the Immigration Act
1971.
Since the legal regime found by the ECtHR to
have violated the European Convention of Human Rights (ECHR) is
no longer in force, the Government considers no further general
measures are necessary.
In AF & Others, the House of Lords applied
the same interpretations of paragraph 4(3)(d) of the Schedule
to the 2005 Act established in SSHD v AF and MB [2007) UKHL
46, but felt obliged to take into account the ECtHR's judgment
in A & Others v UK. It commented that the Court of Appeal's
October 2008 judgment on control orders (SSHD v AF, AM and
AN; AE v SSHD [2008) EWCA Civ 1148) had correctly interpreted
the October 2007 judgment of the House of Lords when it endorsed
the Government's position—that there was no irreducible
minimum disclosure necessary to ensure compliance with Article
6 (the right to a fair trial) of the ECHR.
However, their Lordships concluded that they
now had to replicate the test applied by the ECtHR in A &
Others v UK (handed down shortly before commencement of the House
of Lords hearing) for the stringent control orders before them.
My letter of 15 September outlines the Government's response
to this.
In regards to the financial awards made in A
& Others v UK, the Government has paid the just satisfaction
award. The ECtHR awarded €2,800 to the eighth applicant
and a total of €26,500 to the first, third, fifth, sixth,
seventh, ninth, tenth and eleventh applicants as pecuniary and
non-pecuniary damage; and €60,000 to the applicants
jointly in respect of costs and expenses. The sums other than
the €2,800 (totalling €86,500) were paid to the
applicants' solicitors on 15 May. The €2,800 awarded
to the eighth applicant has been paid into the applicant's account,
which is subject to an asset freeze in accordance with United
Nations sanctions.
2. Specifically, how do proceedings for (a)
control orders and (b) extended periods of pre-charge detention
comply with the requirement that sufficient in format ion should
be disclosed to individuals so that they can effectively challenge
the allegations against them?
My letter of 15 September sets out the
Government's position in relation to both control orders and pre-charge
detention.
3. Does the Government consider paragraph
5 of Schedule 8 to the Terrorism Act 2000 to be
compatible with the right in Article 5(5) ECHR to compensation
for detention in contravention of Article 5? If so please explain
why.
Your letter states that paragraph 5 of
Schedule 8 to the Terrorism Act 2000 appears to preclude
a claim for compensation where an individual is detained under
that Schedule and subsequently released without charge. There
are two points to make in relation to that.
First, compensation is not available simply
where a person is held but released without charge. The fact that
a person is not ultimately charged does not render the detention
arbitrary or unlawful. Detention is justified under Article 5 if
there is reasonable suspicion that the arrested person has committed
an offence and grounds exist to justify the continuation of detention—conditions
that are provided for under the 2000 Act.
Secondly, where the detention is unlawful, compensation
is available in the civil courts for example through an action
for unlawful arrest or false imprisonment.
The purpose of paragraph 5 of Schedule
8 is not to oust a challenge to the legality of detention
under Schedule 8 and the Home Office has never suggested
that this is the case. Paragraph 5 falls in a section headed
"status". Its purpose is to do with ensuring that the
detention is legal custody even though the detainee may not be
held in a police station the entire time. This is in recognition
of the fact that a detainee may for example be held at a place
designated by the Secretary of State under paragraph 1(1) of Schedule
8 that is not a police station, may be transferred to a prison
after a period of 14 days' detention or may be transferred
to court for an extension hearing. Paragraph 5 is to ensure
that notwithstanding this, the person is in "legal custody".
And the effect of this is, for example, that the person could
be charged with escaping from custody in the event of an escape.
4. In addition to paragraph 5 of Schedule
8 of the Terrorism Act 2000 are there other circumstances
in which individuals might be detained without an enforceable
right to compensation? If so, what are they?
The Home Office is not aware of any legislation
that would prevent a civil claim for damages following unlawful
detention being brought.
5. How does the Government propose to ensure
that individuals are able to claim compensation domestically for
any unlawful detention without having to go to the ECtHR?
Any individual can bring a claim for unlawful
detention and compensation without having to go to the ECtHR.
Compensation is available in the domestic civil courts as mentioned
above.
1 October 2009
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