The High Court handed down judgment in the case of Secretary of State for the Home Department v AF and AE [2010] EWHC 42 (Admin) on 18th January 2010. AF and AE (‘the controlees’) were subject to control orders made by the Secretary of State under section 3(1) of the Prevention of Terrorism Act 2005. During applications and hearings relating to those control orders the Secretary of State relied on closed material which was not disclosed to the controlees on the grounds of national security. The controlees argued that as they had not been informed of the case against them they had not received a fair trial under article 6 of schedule 1 of the Human Rights Act 1998. The orders were subsequently revoked following a ruling by the European Court of Human Rights in A v United Kingdom (2009) EHRR 29 and the House of Lords in Secretary of State for the Home Department v AF (No 3) [2009] 3 WLR 74 which required the Secretary of State to disclose substantially more of the closed information to the controlees.

In response to the question as to the effect of the decisions of the European Court and the House of Lords, the court held that the decisions did not have solely prospective effect; applying R (Richards) v Secretary of State for the Home Department [2004] EWHC 93 (Admin) if this had been the case the fact would have been explicitly stated by the courts at the time of judgment.

In the absence of evidence to the contrary, it was to be assumed that the Secretary of State had not been prepared to disclose the closed material required of him to ensure that the controlees article 6 rights were guaranteed at an earlier date, therefore there was no case for obtaining the control orders in the first place. The court had no discretion to order the revocation of the orders or to quash the orders prospectively; they were to be quashed ab initio. Following the reasoning of Baroness Hale in Secretary of State for the Home Department v MB and AF [2008] 1 AC 440, the court held that “if the Secretary of State cannot rely on it (referring to the closed material) and it is indeed crucial to the decision, then the decision will be flawed and the order will have to be quashed”.

On the issue of whether the disclosure requirements in Secretary of State for the Home Department v AF (No 3) could apply to a claim for damages by AF and AE against the Secretary of State, the court held that there was no good reason to depart from Strasbourg jurisprudence (R (Anderson) v Secretary of State [2003] 1 AC 837); to do so would be to deprive the controlees of an effective remedy for breach of their article 6 rights, therefore the disclosure obligations applied equally to a claim for damages.