Closed material – Disclosure – Non-derogating control orders – Right to fair trial – Prevention of Terrorism Act 2005

Secretary of State for the Home Department (appellant) v (1) AF (2) AM (3) AN (respondents): AE (appellant) v Secretary of State for the Home Department (respondent) & Justice (intervener): HL (Lord Phillips of Worth Matravers, Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood): 10 June 2009

In conjoined appeals against a decision of the Court of Appeal ([2008] EWCA Civ 1148, [2009] 2 WLR 423), the house had to consider whether the procedure that had resulted in the making of non-derogating control orders against the three appellants satisfied their right to a fair hearing under article 6 of the European Convention on Human Rights 1950. The appellants argued that their article 6 rights had been violated by reason of the reliance by the judges making the orders on material received in closed hearings, the nature of which had not been disclosed to them.

Held: (1) In A v UK (3455/05) 26 BHRC 1 ECHR (Grand Chamber), the European Court of Human Rights had provided a definitive resolution of the issue in the appeals. That decision established that the ‘controlee’ had to be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement was satisfied, there could be a fair trial notwithstanding that the controlee was not provided with the detail or the sources of the evidence forming the basis of the allegations. Where, however, the open material consisted purely of general assertions and the case against the controlee was based solely or to a decisive degree on closed materials, the requirements of a fair trial would not be satisfied, however cogent the case based on the closed materials might be. There were strong policy considerations that supported a rule that a trial procedure could never be considered fair if a party to it was kept in ignorance of the case against him. The first was that there would be many cases where it was impossible for the court to be confident that disclosure would make no difference. Reasonable suspicion might be established on grounds that established an overwhelming case of involvement in terrorism-related activity but, because the threshold was so low, reasonable suspicion might also be founded on misinterpretation of facts in respect of which the controlee was in a position to put forward an innocent explanation. A system that relied on the judge to distinguish between the two was not satisfactory, however able and experienced the judge. Further, there would be feelings of resentment if a party to legal proceedings was placed in a position where it was impossible for him to influence the result. Resentment would understandably be felt, not merely by the controlee but by his family and friends, if sanctions were imposed on him on grounds that led to his being suspected of involvement in terrorism without any proper explanation of what those grounds were. Indeed, if the wider public were to have confidence in the justice system, they needed to be able to see that justice was done rather than being asked to take it on trust. In none of the instant cases had the disclosure required by the decision of the Strasbourg court been given. The appropriate course was to remit each case to the relevant judge for further consideration, A v UK applied.

(2) In A v UK, the Strasbourg court had nonetheless recognised that, where the interests of national security were concerned in the context of combating terrorism, it might be acceptable not to disclose the source of evidence that founded the grounds of suspecting that a person had been involved in terrorism-related activities.

(3) There was good reason to allow to stand the reading down of the Prevention of Terrorism Act 2005 provided for in the decision of the house in Secretary of State for the Home Department v MB (2007) UKHL 46, (2008) 1 AC 440, MB considered.

Appeals allowed.

Lord Pannick QC, Timothy Otty QC, Zubair Ahmad, Tom Hickman (instructed by Middleweeks) for the first appellant; Tim Owen QC, Ali Bajwa (instructed by Chambers) for the second appellant; Tim Owen QC, Raza Husain (instructed by Birnberg Peirce & Partners) for the third appellant; James Eadie QC, Tim Eicke, Cecilia Ivimy, Andrew O'Connor, Kate Grange (instructed by Treasury solicitor) for the respondent; Michael Fordham QC, Jemima Stratford, Shaheed Fatima, Tom Richards (instructed by Clifford Chance) for the interveners; Hugo Keith QC, Jeremy Johnson, Michael Supperstone QC, Tom De la Mare, Angus McCullough, Paul Bowen (instructed by Special Advocates Support Office) for special advocates.