''A and others v Secretary of State for the Home Department'
/nowiki> UKHL 56] (also known as the ''Belmarsh 9'' case) is a
UK human rights case heard before the
House of Lords
The House of Lords, also known as the House of Peers, is the Bicameralism, upper house of the Parliament of the United Kingdom. Membership is by Life peer, appointment, Hereditary peer, heredity or Lords Spiritual, official function. Like the ...
. It held that the indefinite detention of foreign prisoners in
Belmarsh
His Majesty's Prison Belmarsh is a Category-A men's prison in Thamesmead, south-east London, England. The prison is used in high-profile cases, particularly those concerning national security. Within the prison grounds there is a unique unit c ...
without trial under section 23 of the
Anti-terrorism, Crime and Security Act 2001 was
incompatible with the
European Convention on Human Rights
The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by t ...
.
The case should not be confused with the case ''
A v Secretary of State for the Home Department (No 2)''
005
''005'' is a 1981 arcade game by Sega. They advertised it as the first of their RasterScan Convert-a-Game series, designed so that it could be changed into another game in minutes "at a substantial savings". It is one of the first examples of a ...
UKHL 71, which relates to the use of evidence obtained by torture in British courts.
Facts
The case began with nine men who challenged a decision of the
Special Immigration Appeals Commission
The Special Immigration Appeals Commission (also known by the acronym SIAC) is a superior court of record in the United Kingdom established by the Special Immigration Appeals Commission Act 1997 that deals with appeals from persons deported by t ...
to eject them from the country on the basis that there was evidence that they threatened national security.
Of the nine appellants, all except two were detained in December 2001; the others were detained in February and April 2002 respectively. All were detained under the
Anti-terrorism, Crime and Security Act 2001.
Part 4 of the Act provided for their indefinite detention without trial and deportation. However, the power was only applied to non-British nationals. Under section 25 of this Act, they had the right to appeal to the
Special Immigration Appeals Commission
The Special Immigration Appeals Commission (also known by the acronym SIAC) is a superior court of record in the United Kingdom established by the Special Immigration Appeals Commission Act 1997 that deals with appeals from persons deported by t ...
against their detention.
Judgment
The House of Lords held by a majority (
Lord Bingham of Cornhill
Sir Thomas Henry Bingham, Baron Bingham of Cornhill, (13 October 193311 September 2010), was an eminent British judge who was successively Master of the Rolls, Lord Chief Justice and Senior Law Lord. He was described as the greatest lawyer of ...
,
Lord Nicholls of Birkenhead
Donald James Nicholls, Baron Nicholls of Birkenhead, (25 January 1933 – 25 September 2019) was a British barrister who became a Law Lord (Lord of Appeal in Ordinary).
Biography
Nicholls was educated at Birkenhead School, before readin ...
,
Lord Hope of Craighead
James Arthur David Hope, Baron Hope of Craighead, (born 27 June 1938) is a retired Scottish judge who served as the first Deputy President of the Supreme Court of the United Kingdom from 2009 until his retirement in 2013, having previously be ...
,
Lord Scott of Foscote
Sir Richard Rashleigh Folliott Scott, Baron Scott of Foscote, (born 2 October 1934) is a British judge, who formerly held the office of Lord of Appeal in Ordinary.
Early life
The son of Lieutenant-Colonel C. W. F. and Katharine Scott, Scott ...
,
Lord Rodger of Earlsferry
Alan Ferguson Rodger, Baron Rodger of Earlsferry, (18 September 1944 – 26 June 2011) was a Scottish academic, lawyer, and Justice of the Supreme Court of the United Kingdom.
He served as Lord Advocate, the senior Law Officer of Scotlan ...
,
Baroness Hale of Richmond
Baron is a rank of nobility or title of honour, often hereditary, in various European countries, either current or historical. The female equivalent is baroness. Typically, the title denotes an aristocrat who ranks higher than a lord or knigh ...
and
Lord Carswell
Robert Douglas Carswell, Baron Carswell, PC (born 28 June 1934) is a retired Lord of Appeal in Ordinary.
Early life
The son of Alan and Nance Carswell was educated at the Royal Belfast Academical Institution and Pembroke College, Oxford, wh ...
) that, whilst their detention was lawful under the ATCSA 2001, section 23 was incompatible with the articles of the
European Convention on Human Rights
The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by t ...
. As a consequence, the House of Lords made a declaration of incompatibility under section 4 of the Human Rights Act 1998, and allowed the appeals.
Lord Bingham said in relation to the application of Art.15 ECHR and whether there was a public emergency threatening the life of the nation:
Lord Hoffmann
Leonard Hubert "Lennie" Hoffmann, Baron Hoffmann (born 8 May 1934) is a retired senior South African–British judge. He served as a Lord of Appeal in Ordinary from 1995 to 2009.
Well known for his lively decisions and willingness to break w ...
dissented in strong terms, but agreed that the appeals should be allowed. Whereas the majority argued that the 2001 Act was contrary to the ECHR because it discriminated between nationals and foreign nationals (Art.14 ECHR), Lord Hoffmann stated that the whole scheme was incompatible with the United Kingdom's constitution, and its commitment to human rights. He dismissed the government's argument that under the ECHR and HRA it was possible to derogate from the ECHR's general provisions. His view was that the test – that there was a "threat to the life of the nation" – was not fulfilled.
Lord Walker of Gestingthorpe also dissented, but would have dismissed the appeal. In his opinion, the discrimination was justified due to "sound, rational grounds for different treatment". While the indefinite detention provisions were a "grave concern", they were "necessary" and accompanied by "several important safeguards against oppression". He therefore held that Part 4 of the 2001 Act was "proportionate, rational and non-discriminatory".
Significance
Parliament decided to replace Part 4 of ATCSA 2001 with the
Prevention of Terrorism Act 2005
The Prevention of Terrorism Act 2005 (c 2) was an Act of the Parliament of the United Kingdom, intended to deal with the Law Lords' ruling of 16 December 2004 that the detention without trial of eight foreigners (known as the 'Belmarsh 8') at H ...
.
This allows anyone of any nationality to be subjected to a
control order A control order is an order made by the Home Secretary of the United Kingdom to restrict an individual's liberty for the purpose of "protecting members of the public from a risk of terrorism". Its definition and power were provided by Parliament in ...
.
This case was eventually appealed to the
European Court of Human Rights
The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that a ...
. That case was also decided in favour of the
applicants.
Notes
*
A v Secretary of State for the Home Department on whether persons can be detained indefinitely without reasons being given for that detention.
External links
full text of decision
{{DEFAULTSORT:A And Others V Secretary Of State For The Home Department
House of Lords cases
2004 in case law
2004 in British law
Home Office litigation
Imprisonment and detention
Article 14 of the European Convention on Human Rights
United Kingdom constitutional case law