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Control Orders and secret evidence


I was going to do a fairly long post on the House of Lords judgments in JJ and others, MB and AF, and E, but time went against me, and Head of Legal has some good posts on the issue, here, here and here.

So I just want to note that in MB, the House of Lords went some way towards ending the loathsome, offensive and unjust practice of control orders being made on the basis of secret evidence never put to the Defendant, whose only representation would be a ‘special advocate’ unable to take the client’s instruction.

Unfortunately, the majority only went as far as saying that a control order made mainly on the secret evidence constitutes a breach of Art 6 and didn’t take the further step of declaring the whole procedure as set out in the Schedule to the Prevention of Terrorism Act 2005 incompatible. But it is a start.

Given the farcical situation that we know has occurred in at least one case in the SIAC (and who knows how many more may have been missed), I’m not sure that a remittance to the Administrative Court is a sufficient safeguard. But at least the principle that a control order must be justifiable on the basis of the open evidence has now been set.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


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