Control Orders in the Court of Appeal

The Court of Appeal (CA) have been very quick off the mark - and a very 'strong' Court of Appeal at that - with the appeals by the Home Secretary from Sullivan J's quashing of the Control Orders.

Mr Justice Sullivan, it will be recalled, had quashed them as contrary to Articles 5 and 6 ECHR. Like him, the CA has given two separate judgements.

A (very) swift reading summarises thus:

1. Sullivan J's reasoning about Article 5 was sound: S of S HD v JJ and others [2006] EWCA Civ 1141
2. Sullivan J's reasoning about Article 6 was unsound, and would need to be reconsidered: S of S HD v MB [2006] EWCA Civ 1140

This is not a situation where 'half marks is good enough,' but at least swats away these remarks of the Judge:

"96. Standing back and looking at the overall picture, there can be only one conclusion. 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 8 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."

Appeals to the House of Lords may be regarded (including on Article 6 after that has been reconsidered and appealed again) as a racing certainty.

Watch this space.