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UK appeals court rules terror suspects may sue over wrongful control orders

The UK Court of Appeal [official website] ruled [decision text] Wednesday that two terrorism suspects can sue the government for damages over wrongfully imposed control orders [Guardian backgrounder; JURIST news archive]. The appellants, known only as AF and AE due to the sensitive nature of the intelligence related to their cases, have been fighting their control orders, which confine them essentially to house-arrest conditions, for nearly two years. Last year, the UK House of Lords [official website] ruled that the Home Secretary [official website] had to provide the suspects with more information about the evidence against them to satisfy the European Convention of Human Rights (ECHR) [text]. When the Secretary refused to adduce further evidence on the grounds that it would compromise counter-terrorism operations, the administrative division of the England and Wales High Court [official website] quashed [decision text] the control orders for failure to meet evidentiary requirements. Upholding that ruling, the Court of Appeal declared the control orders invalid from the moment of their inception:

[I]n my judgment, the appropriate remedy in all these cases is one of quashing ab initio ... I agree with the submission made on behalf of the controlees that, if the appropriate remedy were merely revocation, there is a risk that a breach of Convention rights would go substantially unremedied ... I would dismiss the appeal of the Secretary of State in AF and AE.
The government plans to appeal [BBC report] to the Supreme Court.

In June, the UK Supreme Court ruled [JURIST report] that a control order requiring an anonymous appellant to live 150 miles away from his family and operated under a 16-hour curfew violated his rights under the ECHR. Such orders were created by the Prevention of Terrorism ACT of 2005 (PTA) [text], which allows the British government to conduct surveillance and impose house arrest on suspects where there does not exist enough evidence to prosecute. The orders can also be used to forbid the use of mobile phones and the Internet. The system set up under PTA has been criticized by Amnesty International (AI) [advocacy website] for what the human rights organization describes as criminal sanctions without trial [press release] that are not compatible with the principles of human rights. AI has called for the repeal of the PTA and the abandonment of control orders, which it has described as "fundamentally flawed." In September, then-Home Secretary Alan Johnson [BBC profile] said that the government would undertake a review [JURIST report] of the system. Johnson issued a ministerial statement [text] saying that his "current assessment is ... that the control order regime remains viable," but that he would "be keeping this assessment under review." In October 2007, the UK Law Lords ruled in a series of decisions that the government can continue to impose control orders [JURIST report] on terror suspects in lieu of detention, but said that some elements of the orders violate human rights.

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