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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Reprieve & Ors, R (On the Application Of) v The Prime Minister  EWHC 1695 (Admin) (30 June 2020)
Cite as:  EWHC 1695 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
THE HONOURABLE MRS JUSTICE FARBEY
| THE QUEEN ON THE APPLICATION OF
(2) RT HON DAVID DAVIS MP
(3) DAN JARVIS MBE MP
|- and -
THE PRIME MINISTER
Sir James Eadie QC, Mr Ben Watson and Mr James Stansfeld by video (instructed by Government Legal Department) for the Defendant
Special Advocates: Mr Angus McCullough QC and Mr Tim Buley QC (instructed by the Special Advocates' Support Office) appeared by video but made written submissions only
Hearing date: 9 June 2020
Crown Copyright ©
Dame Victoria Sharp P.:
The scope of article 6(1)
The effect of AF (No 3)
"Mr Eadie submitted that a less stringent standard of fairness was applicable in respect of control orders, where the relevant proceedings were subject to article 6 in its civil aspect. As a general submission there may be some force in this, at least where the restrictions imposed by a control order fall far short of detention. But I do not consider that the Strasbourg court would draw any such distinction when dealing with the minimum of disclosure necessary for a fair trial. Were this not the case, it is hard to see why the Grand Chamber quoted so extensively from control order cases."
"Contrary to Mr Eadie's submission, I am satisfied that the essence of the Grand Chamber's decision lies in para 220 and, in particular, in the last sentence of that paragraph. This establishes that the controlee must 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 is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations. Where, however, the open material consists purely of general assertions and the case against the controlee is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be."
"… the reasoning in para 217 of the European Court of Human Rights' judgment in A v United Kingdom emphasises the context of that decision, the liberty of the individual. Detention, control orders and freezing orders impinge directly on personal freedom and liberty in a way to which Mr Tariq cannot be said to be exposed. In R (AHK) v Secretary of State for the Home Department (Practice Note)  1 WLR 2049, a claim for judicial review of the refusal of an application for British citizenship, the Court of Appeal distinguished A v United Kingdom on the ground that it was focusing on detention. In my opinion, it was justified in making this distinction. An applicant for British citizenship has, of course, an important interest in the appropriate outcome of his or her application. Mr Tariq also has an important interest in not being discriminated against which is entitled to appropriate protection; and this is so although success in establishing discrimination would be measured in damages, rather than by way of restoration of his security clearance (now definitively withdrawn) or of his position as an immigration officer. But the balancing exercise called for in para 217 of the judgment in A v United Kingdom depends on the nature and weight of the circumstances on each side, and cases where the state is seeking to impose on the individual actual or virtual imprisonment are in a different category to the present, where an individual is seeking to pursue a civil claim for discrimination against the state which is seeking to defend itself. "
The parties' submissions
The application of AF (No 3)
A middle way?
The court's duty