The case, A(FC) and others v Secretary of State for the Home Department [2004] UKHL 56, relates to the indefinite detention of a number of foreign nationals on the grounds that the Secretary of State has a reasonable suspicion that they are international terrorists. By virtue of an act passed in December 2001, the UK parliament gave the government the power to detain foreign nationals who are suspected of being international terrorists until such time as they leave the UK voluntarily or the Secretary of State considers that they are no longer a threat. Most of the detained persons have been given permission to stay in the UK as refugees or otherwise protected persons (ie their return would be to a country where there is a substantial risk they would suffer torture contrary to article 3 ECHR).

The foreign nationals contested their detention and the matter finally reached the House of Lords. Their Lordships held that the 2001 UK law which provides the power to detain is not in conformity with the Human Rights Act which incorporates the EHCR into UK domestic law: in particular the power is incompatible with articles 5 and 14 ECHR in so far as it is disproportionate and permits detention of suspected international terrorists in a way that discriminates on the ground of nationality or immigration status.

Nine Lord Justices took part in the case of which eight were in agreement. The judgment is extremely strong on the right of liberty of the person. Lord Nicholls starts his judgment: "Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law."

A majority of the judges accepted that the UK government was within its powers to find that the UK was in a state of public emergency after 11 September 2001 but found that the measures taken were not "strictly requires by the exigencies of the situation".

A copy of the judgment is available on the Court's website please click here to read the full text of the judgment. (In doing so you will be leaving the EILN site)