Secretary of State for the Home Department v MB

Factual and Procedural Background

The appeal concerns two individuals, “MB” and “AF,” who were each made subject to non-derogating control orders under sections 2 and 3(1)(a) of the Prevention of Terrorism Act 2005.

• MB: A naturalised British citizen stopped twice at airports in 2005 on suspicion of intending to join insurgents in Iraq. A control order was imposed on 5 September 2005. Sullivan J later declared section 3 of the 2005 Act incompatible with Article 6 of the European Convention on Human Rights (ECHR). The Court of Appeal overturned that declaration; MB appealed to the House of Lords.
• AF: A dual United Kingdom / Libyan national made subject to an 18-hour curfew order on 24 May 2006; a replacement order dated 11 September 2006 imposed a 14-hour curfew with extensive geographic, contact and communication restrictions. Ouseley J quashed the order (finding a deprivation of liberty) but refused to declare section 3 incompatible. He certified four questions of public importance for a “leapfrog” appeal directly to the House of Lords; both parties appealed.

The House considered both cases together because they raise common issues about the proper classification of control-order proceedings and the extent to which reliance on undisclosed (“closed”) material is compatible with Article 6 ECHR.

Legal Issues Presented

1. Whether the cumulative restrictions in AF’s control order amounted to a deprivation of liberty contrary to Article 5(1) ECHR.
2. If so, whether the order had to be quashed for lack of any relevant derogation (issue became academic once Issue 1 was decided for the Secretary of State).
3. Whether proceedings to make or confirm a non-derogating control order are the “determination of a criminal charge” within Article 6(1) ECHR.
4. Whether, and in what circumstances, the court may rely on secret evidence not disclosed to the controlled person—despite the use of a special advocate—consistently with the right to a fair hearing under Article 6(1).

Arguments of the Parties

Controlled Persons (MB & AF)

• The restrictions, especially curfews and geographic limits, deprived AF of liberty; any order exceeding 12 hours’ confinement crosses the Article 5 threshold.
• Control-order proceedings should be treated as “criminal” or, at least, should attract criminal-level procedural guarantees given the gravity of potential consequences.
• Reliance on closed material prevented any effective challenge; a “bare, unsubstantiated assertion” cannot satisfy Article 6 even with a special advocate.

Secretary of State

• The orders are preventative, not punitive; therefore Article 5 is not engaged and Article 6 applies only in its “civil” limb.
• Closed-material procedures are indispensable to protect national security; the special-advocate system provides sufficient counter-balance.
• Parliament deliberately created a regime that avoids the criminal process; proceedings therefore do not involve determination of a criminal charge.

Table of Precedents Cited

Court's Reasoning and Analysis

Article 5 (Deprivation of Liberty): The majority accepted that liberty is assessed cumulatively but held that a 14-hour curfew, although onerous, does not cross the line set in precedent. The remaining restrictions (geographic limits, electronic tagging, visitor controls, financial and communication bans) reinforced severity but did not transform the regime into a deprivation of liberty.

Article 6 – Criminal vs Civil: Applying the Engel criteria, the House noted that (i) domestic law classifies control-order proceedings as civil; (ii) the orders are preventative, not punitive; and (iii) no conviction or penal sentence follows. Therefore the “criminal” limb does not apply, though the seriousness of consequences demands robust procedural safeguards.

Use of Closed Material: The judges acknowledged the “grave disadvantage” to a controlled person who cannot see or answer the case. They accepted that special advocates can mitigate but not always cure the problem. A “core, irreducible minimum” level of disclosure is required; if disclosure shortfalls produce “significant injustice,” the order cannot stand.

Interpretation of the 2005 Act: Rather than declare section 3 incompatible, the majority invoked section 3 of the Human Rights Act 1998 to read the legislation as permitting the court to refuse reliance on undisclosed material where necessary to secure a fair hearing. This preserves Parliamentary intention while ensuring Convention compliance.

Holding and Implications

Holding: The House of Lords (1) allowed the Secretary of State’s appeal on Issue 1, finding no deprivation of liberty; (2) dismissed MB’s and AF’s Article 6 appeals in principle but held that, where non-disclosure would cause significant injustice, the courts must either compel further disclosure or refuse to uphold the control order. Both cases were remitted to the Administrative Court for reconsideration under the clarified standards.

Implications:

• Courts must rigorously test secrecy claims and may refuse to rely on undisclosed evidence if fairness cannot otherwise be achieved.
• Control-order proceedings remain “civil,” but the seriousness of the restrictions obliges criminal-level procedural safeguards.
• The judgment avoids a formal declaration of incompatibility, instead using Human Rights Act 1998, s 3, to harmonise national-security secrecy with Article 6 fairness requirements.
• No new legal cause of action was created, but the decision signals that future control-order litigation will face closer scrutiny of whether special-advocate procedures truly secure a fair hearing.