The case began with 10 men who challenged a decision of the Special Immigration Appeals Commission (SIMAP) to eject them from the country on the basis that there was evidence of them being a threat to national security. They complained that they were detained in high security conditions under a statutory scheme which permitted the indefinite detention of non-nationals certified by the Secretary of State as suspected of involvement in terrorism. All were detained under the Anti-terrorism, Crime and Security Act 2001. Part 4 of the Act allowed this procedure as well as deportation, both only for non-British nationals.

The applicants complained before the Court that their indefinite detention in high security conditions amounted to inhuman or degrading treatment. The Court, while acutely conscious of the difficulties faced by States in protecting their populations from terrorist violence, stressed that Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult of circumstances, such as the fight against terrorism, and irrespective of the conduct of the person concerned, the European Convention prohibits in absolute terms torture and inhuman or degrading treatment and punishment.

The uncertainty and fear of indefinite detention had to have caused the remaining ten applicants anxiety and distress, as it would virtually any detainee in their position. Furthermore, it was probable that the stress had been sufficiently serious and enduring to affect the mental health of certain of the applicants. However, it was noted that although the fear of indefinite detention had caused the ten applicants anxiety and distress, they were not without any prospect or hope of release.  For example, they had been able to bring proceedings to challenge the legality of the detention scheme under the 2001 Act and had been successful in 2002. Further, each detained applicant had had at his disposal the remedies available to all prisoners under administrative and civil law to challenge conditions of detention, including any alleged inadequacy of medical treatment.

In those circumstances, the Court found that the applicants’ detention had not reached the high threshold of inhuman and degrading treatment for which a violation of Article 3 could be found.

The court then went further to consider whether the applicants had been lawfully detained in accordance with Article 5 (right to liberty). In the unusual circumstances of the case, whereby the House of Lords had examined the issues relating to the State’s derogation and concluded that there had been a public emergency threatening the life of the nation but that the measures taken in response had not been strictly required by the exigencies of the situation, the Court considered that it would not accept the House of Lords’ conclusion only if it found that it was manifestly unreasonable.

The Court, like the majority of the House of Lords, held that there had been a public emergency threatening the life of the nation. Before the domestic courts, the Secretary of State had provided evidence to show the existence of a threat of serious terrorist attacks planned against the United Kingdom. Additional closed evidence had been provided before SIAC. All the national judges had accepted that danger to have been credible. Although no al’Qaeda attack had taken place within the territory of the United Kingdom at the time when the derogation had been made, the Court did not consider that the national authorities could be criticised for having feared such an attack to be imminent. A State could not be expected to wait for disaster to strike before taking measures to deal with it. Moreover, the danger of a terrorist attack had, tragically, been shown by the bombings and attempted bombings in London in July 2005 to have been very real.

Although the United Kingdom had been the only Convention State to have lodged a derogation in response to the danger from al’Qaeda, the Court accepted that it had been for each Government, as the guardian of their own people’s safety, to make its own assessment on the basis of the facts known to it. In this sense, margin of appreciation operates through the acceptance that Parliament, government and national courts are better placed to assess the evidence relating to the existence of an emergency.

However, the Court found that the derogating measures had been disproportionate in that they had discriminated unjustifiably between nationals and non-nationals, hence violation of Article 5. The Court considered that the House of Lords had been correct in holding that the extended powers of detention were not to be seen as immigration measures, where a distinction between nationals and non-nationals would be legitimate, but instead as concerned with national security. Part 4 of the 2001 Act had been designed to avert a real and imminent threat of terrorist attack which, on the evidence, had been posed by both nationals and non-nationals. The choice by the Government and Parliament of an immigration measure to address what had essentially been a security issue had resulted in a failure adequately to address the problem, while imposing a disproportionate and discriminatory burden of indefinite detention on one group of suspected terrorists. There was no significant difference in the potential adverse impact of detention without charge on a national or on a non-national who in practice could not leave the country because of fear of torture abroad.

The Government had argued before the Court that it had been legitimate to confine the detention scheme to non-nationals, to take into account the sensitivities of the British Muslim population in order to reduce the chances of recruitment among them by extremists. However, the Government had failed to provide the Court with any evidence to suggest that British Muslims had been significantly more likely to react negatively to the detention without charge of national rather than foreign Muslims reasonably suspected of links to al’Qaeda.

Concerning the argument that the State could better respond to the terrorist threat if it were able to detain its most serious source, namely non-nationals, the Court had not been provided with any evidence which could persuade it to overturn the conclusion of the House of Lords that the difference in treatment had been unjustified. The national courts, in fact, which saw both the open and the closed material, had not been convinced that the threat from non-nationals had been significantly more serious than that from nationals.

The Court therefore found a violation of Article 5 paragraph 1 (right to liberty and security). The Court also found a violation of Article 5 paragraph 4 (right to have lawfulness of detention decided by a court) with regards to some of the applicants and finally of Article 5 paragraph 5 with regards to some of the applicants, on account of the lack of an enforceable right to compensation for the above violations.

The Court made awards under Article 41 (just satisfaction) which were substantially lower than those which it had made in past cases of unlawful detention, in view of the fact that the detention scheme was devised in the face of a public emergency and as an attempt to reconcile the need to protect the United Kingdom public against terrorism with the obligation not to send the applicants back to countries where they faced a real risk of ill-treatment. The Court therefore awarded, to the six Algerian applicants 3,400 euros (EUR), EUR 3,900, EUR 3,800, EUR 3,400, EUR 2,500 and EUR 1,700, respectively; to the stateless and Tunisian applicants EUR 3,900, each; and to the Jordanian applicant, EUR 2,800. The applicants were jointly awarded EUR 60,000 for legal costs.