Summarise and critically appraise the decision in A and others v Secretary of State for the Home Department [2004] UKHL 56, (also known as the Belmarsh 9 case).


  • It held that the indefinite detention of foreign prisoners in Belmarsh without trial under section 23 of the Anti-terrorism, Crime and Security Act 2001 was incompatible with the ECHR.
  • Section 23 provides that such a person may be detained, temporarily or permanently, notwithstanding that there is no prospect of deportation.
  • Those who are suspected of involvement in international terrorism, but who may not be deported, can be detained in the U.K. indefinitely, without being charged with a criminal offence and (hence) without a criminal trial or prospect thereof.
  • Article 5 of the ECHR states that “no one shall be deprived of his liberty save in certain enumerated circumstances such as the lawful detention of a person after conviction by a competent court”. It can only justify detention when deportation proceedings are in progress.
  • Detention under part 4 does not, however, fall into this category. It therefore breaches article 5(1) of the ECHR.

Comments

Post a Comment

Popular posts from this blog

Sion v Hampstead Health Authority [1994] EWCA Civ 26

Facts: S appealed against the High Court’s decision to strike out his statement of claim for personal injury damages on the grounds that no reasonable cause of action was disclosed. S brought an action against the hospital alleging their negligent treatment of his son caused him to suffer psychiatric injury. Ratio: Appeal dismissed. However, even where a statement of claim disclosed no cause of action, the court had discretion to permit the plaintiff to amend it out of time provided that the proposed amendment arose from the facts in the pleading. S was unable to recover for psychiatric harm sustained as a result of watching his son die over a period of 14 days while becoming increasingly aware that the hospital was negligent in its treatment of him.
Read more

R. (on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598, (2002)

Facts: The first claimant was a British national who had been captured by the United States forces in Afghanistan and detained in Guantanamo Bay as an 'enemy combatant' He was deprived of access to court proceedings and legal advice, and applied for judicial review in the UK seeking to compel the Secretary of State for Foreign and Commonwealth Affairs either to intervene with the US government or alternatively to explain the omission to do so Issue: Whether the court had jurisdiction to review the decision by the Secretary of State not to intervene Whether the UK government had any duty to protect the claimant as one of its citizens Held: The Court could review the decisions on grounds of rationality and legitimate expectation The Court held that there was no legal duty on the state to protect its citizens in such circumstances
Read more

Summarise and discuss Lord Bingham’s eight ‘sub-rules’ of the Rule of Law.

Lord Bingham based his view about the rule of law on three key assumptions: Everyone should be equally bound by and entitled to the benefit of the law. Laws must be publicly and prospectively published. Laws should be publicly administered in the courts. The law must be accessible, intelligible, clear and predictable. Bingham’s rule of law suggests that it cannot exist without democracy. The rule of law is a kind of implicit contract between the state and the individual.
Read more