Case No: C3/2004/0073
Neutral Citation Number: [2004] EWCA Civ 1031
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH
ADMINISTRATIVE COURT
MR. JUSTICE MAURICE KAY
CO/3582/2003
Neutral Citation [2003] EWHC 3120 (Admin.)
Royal Courts of Justice
Strand, London, WC2A 2LL

Wednesday 28th July 2004
Before :

LORD  JUSTICE TUCKEY
LORD  JUSTICE CLARKE
MR  JUSTICE JACKSON
 
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Between :

	ROBERTS	Appellant	
	- and -		
	PAROLE BOARD	Respondent	

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(Transcript of the Handed Down Judgment of
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Tim OWEN Q.C. and Alison MACDONALD (instructed by Bhatt Murphy) for the Appellant
Michael FORDHAM (instructed by Roland Phillips - Treasury Solicitors) for the Respondent
James EADIE (instructed by Treasury Solicitors) for the Interested Party
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Judgment
Lord Justice Tuckey: 
1.	On 12 December 1966 the appellant, Harry Roberts, was convicted of the murder (by shooting) of three police officers in Shepherds Bush and sentenced to life imprisonment with a tariff sentence which was later fixed at 30 years.  By October 2001 the appellant, who is now 68, was in an open prison and had good prospects of being recommended for release on life licence.  This all changed when it was alleged that he had been involved in drug dealing, bringing contraband into prison and other behaviour which called into question his eligibility for release.  He was transferred to a closed prison pending completion of the review of his case then in progress.  In the course of this review the Secretary of State put before the Parole Board material which was withheld from the claimant and his solicitor.  In due course the Board, chaired by Sir Richard Tucker, ruled that this sensitive material should only be disclosed to a specially appointed advocate (Nicholas Blake Q.C.) and not to the claimant or his legal representatives.
2.	The appellant’s challenge to this decision failed before Maurice Kay J. (2003) EWHC 3120 (Admin), [2004] 2 AER 776 and he now appeals to this court.  His contention is that the specially appointed advocate (SAA) procedure was not an option open to the Board.  This is obviously an important point of principle. 
3.	Before the judge the appellant also contended that this procedure was unjustified in his case.  This challenge failed as well, but is not pursued on appeal.  It involved the judge looking at the sensitive material, hearing submissions from Mr Blake and giving a separate judgment in private.  As we only have to deal with the point of principle we have not seen the sensitive material, heard submissions from Mr Blake or sat in private.
4.	The facts need little elaboration.  Sir Richard Tucker’s ruling was made following directions given by the Deputy Chairman of the Board (Scott-Baker L.J.) on 15 November 2002. He said:
Having considered the sensitive material, in my view the way ahead is as follows.  It should in the first instance be disclosed to a special advocate agreeable to both parties.  This would be on the basis that it would not be disclosed to Roberts, his lawyers, or anyone else without the consent of the Parole Board.  The special advocate procedure is I think a statutory one in other fields (SIAC) but I can see no reason why it should not be used in the present circumstances and it does not prejudice Roberts provided other options remain open to argument thereafter.
I think a hearing then should take place before the legal chairman of the panel that is to hear Roberts’ case … There can then be argument both as to the law and as to disclosure, including any issues such as whether some of the sensitive material might be disclosed and what, if any, broad information Roberts might be given about the nature of the withheld material.
5.	Sir Richard Tucker held two directions hearings.  Following the first hearing and after considering the sensitive material, submissions on behalf of the claimant and closed submissions on behalf of the SOS and by Mr Blake Sir Richard found:
(i)   with regard to the sensitive material… the fears of the source or sources are genuine and held on reasonable grounds …;
(ii)   if full disclosure were to be made to Mr Roberts there would be a real risk to the safety of the source or sources;
(iii)   in making directions on disclosure the Board must balance the interest of the various parties involved.  These are :
(a)   the public – the Board’s ultimate purpose is to protect the public.  Moreover, it is important that all judicial decisions are made on the basis of the broadest information available;
(b)  the prisoner – the prisoner has the right to proper representation and examination of the evidence.  This is not however an absolute right.  The Parole Board Rules, whilst not specifically applicable to mandatory lifers… acknowledge that the public interest may restrict the prisoner’s right in this respect …;
(c)   the source or sources of the sensitive material – these parties have the right under Articles 2 and 3 of the ECHR and under common law, to protection.
6.	The integrity of the claimant’s legal representatives, including his solicitor who had acted for him for many years, was not in question but in his decision letter after the second hearing Sir Richard said:
The Board is however quite satisfied that disclosure of the sensitive material to Mr Roberts’ representatives would lead to real risk of inadvertent disclosure to Mr Roberts by his representatives, having regard to the circumstances of the case and the unusual pressures that would be placed upon them.
Sir Richard confirmed his earlier directions about disclosure and that the decision on the claimant’s eligibility for release on life licence would be made following a full hearing at which first the disclosed evidence would be examined before the SAA, the claimant and his representatives and then the sensitive material in the absence of the claimant and his representatives. 
7.	Although the directions did not spell out what Mr Blake was to do it is common ground that it was intended that he would perform the same functions and be the subject to the same restrictions as a special advocate appointed under the Special  Immigration Appeals Commission (Procedure Rules) 1998.  Thus he was required to represent the interest of the appellant by making submissions to the Board at any closed hearings, cross examine witnesses at any such hearing and make written submissions to the Board.  In performing these functions he was not to disclose any sensitive material to or obtain instructions from the prisoner or his representatives, although they could and had provided him with as much information about the case as possible.  At the directions hearings Mr Blake had submitted that the SAA procedure was unnecessary and inappropriate.  Of these submissions Sir Richard said:
Although the Board generally accepts Mr Blake’s reasoning, the Board is satisfied that the SAA procedure does have a place outside the immediate context of terrorism and intelligence gathering (it may be that Mr Blake himself accepts that) and that it may have a part to play in cases like the present where the public interest, balanced against the other interests, may require it.
Despite the possibility of prejudice to Mr Roberts in making representations to the Board and having taken carefully into account all the points made on Mr Roberts’ behalf, the Board is entirely satisfied that the balance of interest is firmly in favour of the appointment of the SAA to represent  Mr Roberts in relation to the sensitive material.  The Board is also satisfied that with the co-operation of all parties the appointment of an SAA can secure acceptable standards of fairness for Mr Roberts.
8.	The Board now derives its authority from section 32 of the Criminal Justice Act 1991 as amended by the Crime Sentences Act 1997.  By section 32 (1) (b) the Board is to have the functions conferred by Chapter II of Part II of the 1997 Act in respect of life prisoners.  Chapter II of the 1997 Act contains section 28 which, as amended, requires the Secretary of State to refer the sentence of a life prisoner to the Board at his request, after he has served the tariff part of his sentence, or two years have elapsed since any previous reference has been disposed of.  By section 28 (5) once a prisoner has served the tariff part of his sentence and the Board has recommended his release  it is the duty of the Secretary of State to release him on licence.  However section 28 (6) says that:
The Parole Board shall not give a direction under sub-section (5) above with respect to a life prisoner to whom this section applies unless –
a)	the Secretary of State has referred the prisoner’s case to the Board; and
b)	the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.
9.	Section 32 of the 1991 Act contains further provisions which require the Board to deal with cases in which it gives directions on consideration of “all such evidence as may be adduced before it” (4).  The evidence referred to includes “any documents given to it by the Secretary of State; and any other oral or written information obtained by it” (3).  “Without prejudice to sub-sections (3) and (4) the Secretary of State may make rules with respect to the proceedings of the Board including ….”.  
10.	The Parole Board Rules 1997 were made under section 32 (5) but they only apply  to discretionary life prisoners.  There are no rules relating to mandatory life prisoners although we were told that new rules relating to all life prisoners are under consideration.  Changes to the legislation since the early 1990s have been in response to decisions of the ECtHR.  Before the decision in Stafford v UK [2002] 35 EHRR 1121 the Secretary of State retained the right to decide whether a mandatory life prisoner should be released or recalled.  Following this decision section 28 of the 1997 Act was amended so that it applied to all life prisoners, but the 1997 Rules remain unamended.    
11.	However, although the 1997 Rules do not apply to mandatory life prisoners, much of the argument below focused on them because it was contended that they set out what the Secretary of State considered to be the limit of acceptable departure from the normal requirements of procedural fairness and equality of arms in discretionary cases.  The appellant argued that any procedure applying to mandatory cases which was not similarly confined would amount to discrimination in breach of Article 14  of the Convention.
12.	The relevant parts of the 1997 Rules are as follows:
5 (1) … the Secretary of State shall serve on the Board and,   subject to paragraph 2, the prisoner or his representative –
[specified information and reports relating to the prisoner]     and
(c)	such further information that the Secretary of State considers to be relevant to the case.
(2)   Any part of the information or reports referred to in paragraph (1) which in the opinion of the Secretary of State should be withheld from the prisoner on the ground that its disclosure would adversely affect the health or welfare of the prisoner or others shall be recorded in a separate document and served only on the Board together with the reasons for believing that its disclosure would have that effect.
(3)   Where a document is withheld from the prisoner in accordance with paragraph (2) it shall nevertheless be served as soon as is practicable on the prisoner’s representative if he is  -
 (a)   a barrister or solicitor,
(b)	a registered medical practitioner, or
(c) a person whom the chairman of the panel directs is suitable by virtue of his experience or professional qualification;
provided that no information disclosed in accordance with this paragraph shall be disclosed either directly or indirectly to the prisoner or to any other person without the authority of the chairman of the panel.
13(3)   The parties shall be entitled to appear and be heard at the hearing and take such part in the proceedings as the panel thinks proper; and  the parties may hear each others evidence, put questions to each other, call any witnesses who the Board has authorised to give evidence…., and put questions to any witness or other person appearing before the panel.
(5)   The panel may receive in evidence any document or information notwithstanding that such document or information would be inadmissible in a court of law …
(6)   The chairman of the panel may require the prisoner or any witness appearing for the prisoner to leave the hearing where evidence is being examined which the chairman of the panel … previously directed should be withheld from the prisoner as being injurious to the health or welfare of the prisoner or another person.

13.	Having noted the discrimination argument based on the 1997 Rules the judge said:
A crucial legal point lies at the heart of this ground of challenge.  It is whether, as a matter of law, the Parole Board would have been able to take the same course and appoint an SAA in the case of a discretionary life prisoner in the same circumstances.  
He decided it could.  The 1997 Rules were not exhaustive of all procedural issues which might arise as Rule 13 (3) appeared to acknowledge.  The concept of an SAA was of recent origin, had been introduced into other legislation and appeared to have the approval of the Strasbourg Court.  He concluded:
In my judgment when the Parole Board is carrying out its very important function in relation to a discretionary life prisoner, it is entitled in exceptional circumstances, to resort to the SAA procedure.  It has the inherent power to adopt a novel concept in the interests of justice and in the public interest.  It is crucial that SAAs should remain wholly exceptional and not become the norm.  On the other hand, where their availability enables justice to be done on the basis of all relevant material when the alternative is a decision on incomplete relevant material, I consider that the Parole Board has the power to resort to the procedure to the same extent in relation to discretionary life prisoners as it has in relation to mandatory life prisoners.
The discrimination argument therefore fell at the first hurdle.  There was no differential treatment.
14.	The judge then went on to review the Board’s decision at a level of utmost intensity and approved deployment of the SAA procedure in this case.  He concluded that it was “fair proportionate and, indeed, correct”.
15.	In this second part of his judgment the judge recorded 
There is another important piece of common ground.  It is that the Parole Board has inherent powers to control its own proceedings in relation to mandatory life prisoners and that, in exceptional circumstances, these may permit the appointment of an SAA.  However, Mr Owen’s first submission in relation to that proposition is that exceptional circumstances should be limited to matters of national  security.  I do not agree. Whilst I accept that the exception must remain exceptional and not become the norm, I am not persuaded that the constraints which may justify the appointment of a SAA in the context of national security cannot be matched by comparable constraints in other contexts.
16.	This “common ground” appeared to be accepted in para. 24 of the claimant’s amended skeleton argument for the purposes of this appeal.  However in his supplementary skeleton argument Mr Owen Q.C. for the claimant makes it clear that his primary submission is that the Board has no power to adopt the SAA procedure in any life imprisonment case.  It is only if he is wrong about this that he submits that the Board’s power to adopt the SAA procedure is confined to cases involving national security.
17.	Mr Owen developed his primary submission both by reference to domestic law and the Convention.  His submission is supported by Justice who have been given leave to intervene in the appeal.  We are grateful for their written submissions.
18.	As a matter of domestic law it is submitted that the Board as a creature of statute has no jurisdiction to adopt the SAA procedure.  There is no express power to do so and such a power could not be inferred from the general powers conferred by section 32 of the 1991 Act.  
19.	A sentence of life imprisonment engages Article 5 (4) of the Convention.  After he has served the tariff part of his sentence the prisoner has the right to have the lawfulness of his continued detention “decided … by a court”.  In Hussain v UK [1996] 22 EHRR 1 the ECtHR decided that Article 5 (4) required an oral hearing in the context of an adversarial procedure involving legal representation and the possibility of calling and questioning witnesses.  Paragraph 2 of Schedule 5 to the 1991 Act requires the Board to include a person who holds or has held judicial office and others with a wide range of experience in dealing with offenders.  Since 1991 it has been accepted that the Board has been able to provide what Article 5 (4) requires.  In other words it is considered to be a court for the purposes of Article 5 (4).  However, it is submitted that it would be a breach of Article 5 (4) to deny the prisoner or his representative the right to see evidence which might persuade the Board to extend his detention, perhaps forever.
20.	It was also contended that Article 6 (1) is engaged because the Board are involved in the determination of a prisoner’s civil rights.  But, as Mr Owen conceded, the right to a fair hearing before an independent and impartial tribunal adds little if anything to the requirements of Article 5 (4) or indeed to the prisoner’s common law rights.  There is clear authority that the Board’s proceedings do not involve the determination of a criminal charge but considerable uncertainty as to whether they involve determination of civil rights.  We were asked not to decide this point and, as it is unnecessary to do so in this case, I do not think we should.
21.	In his reply Mr Owen said that the appellant’s case now focussed on the domestic law argument.  He frankly accepted that this was a change of emphasis.  I add that it was almost entirely different from the case advanced before the judge which was based on discrimination.  Mr Owen submitted that if his domestic law argument succeeded it would follow that there was a breach of Article 5 because the appellant’s continued detention would not be in accordance “with a procedure prescribed by law”.   Mr Owen may be right about this but I think one cannot ignore Article 5 (4) when considering the Board’s powers, since it is the court which has to give effect to the right and one would expect it to have the powers to do so.
22.	I will start however with the domestic law issue.  It is submitted that the SAA procedure is a significant departure from the established standard for procedural fairness and equality of arms.  The language of section 32 (3) and (4) of the 1991 Act, though broad, cannot be construed so as to permit the adoption of such an exceptional procedure.  The vires of the Act must be read narrowly where fundamental rights are engaged.  If Parliament had intended the Board to have the power to adopt the SAA procedure it would have done so expressly as it has in other cases. I have already referred to the Special Immigration Appeal Commission.  The SAA procedure is also provided for in the Proscribed Organisations and Pathogens Access Appeal Commissions, Employment Tribunals and the EAT in race discrimination claims involving national security, the Tribunal established to review certificates issued by the Secretary of State for Northern Ireland for the purposes of national security etc. and the Northern Ireland Life Sentences Review Commissioners.  In the latter case rules were only made after extensive consultation.  We were also shown the Mental Health Review Tribunal Rules 1983 which contain a similar provision to Rule 5 of the 1997 Rules.  
23.	The appellant’s submission therefore is that the judge was wrong to say that the Board had the inherent power to adopt the SAA procedure.  He is criticised also for not identifying what he considered to be the source of this power.
24.	Mr Owen helpfully took us through a number of English cases where the Board’s powers had been considered.  In R (Davies) v Parole Board (unreported, 27/11/96) Collins J. quashed a decision of the Board because it had not made relevant inquiries in the case of a mandatory life prisoner who had been recalled.  The judge records without disapproval common ground between counsel for the prisoner and counsel for the Board that: 
There is a discretion in the Board … which is underlined in the terms of section 32 (3) to adopt whatever procedure is, in any individual case, the fair procedure.  
25.	In  R (West) v Parole Board [2002] EWCA Civ. 1641; [2003] 1 WLR 705 this court decided that the Board’s decisions did not involve the determination of  criminal charges for the purpose of Article 6 in a case involving the recall of a prisoner serving a determinate sentence.  In the course of his judgment Simon Brown L.J. accepted counsel for the Board’s submission that the rationale of prisoner recall was “protective and preventative and not deterrent”.  Later he added that the Board “plainly have the power under section 32 of the Act to adopt whatever procedures they think necessary”.   Sedley L.J. referred to the need of the Board to do “proper justice to prisoners case by case” and that  “attention needed to be given in each case to what is necessary for its just disposal”. He continued:
45.	Our judge made public law recognises that the impact  of recall is … grave …  It accordingly calls for a high standard of fair procedure.  What it does not do is react schematically to the need by insisting on the translation of the criminal trial process into the different context of a Parole Board hearing. 
26.	Mr Owen submitted that the statements in these two cases supporting the view that the Board had wide powers to decide its own procedures should be treated with caution since each case was concerned with steps taken to enhance fairness to the prisoner.  I do not accept this.  These cases lend general support to the view that the Board should be able to adapt its procedures to enable it to perform its very important protective and preventative role whilst ensuring substantial fairness for the prisoner.
27.	In R (Brooks) v Parole Board [2004] EWCA Civ. 80 this court had to decide the extent to which the Board could rely on hearsay evidence in a case in which a discretionary life prisoner’s licence had been revoked. The evidence was crucial to the issue of risk, but this court (by a majority) upheld the Board’s decision relying on it.
28.	The Board is concerned with the assessment of risk.  As Sir Thomas Bingham M.R. put it in R (Watson) v Parole Board [1996] 1 WLR 906, 916:
In exercising its practical judgment the Board is … balancing the hardship and injustice of continuing to imprison a man who is unlikely to cause serious injury to the public against the need to protect the public against a man who is not unlikely to cause such injury.  In other than a clear case this is bound to be a difficult and very anxious judgment.  But in the final balance the Board is bound to give preponderant weight to the need to protect innocent members of the public against any significant risk of serious injury.
29.	In making these difficult judgments section 32 of the 1991 Act requires the Board to have regard to all the evidence which is put before it.  This is not surprising given its protective and preventative role.  It is obvious that such evidence may come from a source who himself may be at risk of life or limb if his identity is known.  It seems to me that the Board must have inherent power to devise procedures to protect such a source.  The risk to the witness may only justify external measures of protection such as those used to protect witnesses in criminal trials.  But if the risk is sufficiently serious, I think the Board must have the power to direct that the evidence should be withheld from the prisoner or his representatives altogether.  Once it is accepted that the Board does have such a power it must additionally have the power to mitigate the unfairness to the prisoner caused by the withholding of the evidence from him or his representatives.  One obvious way of doing this is by the SAA procedure.  
30.	The vires question is simply whether section 32 of the 1991 Act which empowers the Board to carry out its important function, impliedly authorises it to adopt the SAA procedures.  The Act itself says nothing about the Board’s procedures apart from its obligation to consider all the evidence adduced before it.  So far as mandatory life prisoners are concerned there are no other rules.  The Board therefore must have the power to adopt procedures which are necessary to enable it to perform its task.  In the cases to which I have referred it has been accepted that the Board have a wide choice as to how it should proceed in any particular case.  For the reasons I have already given I think this choice extends to adopting the SAA procedure.
31.	There is nothing in the language of the 1991 Act which stands in the way of this conclusion.  The fact that primary and secondary legislation has been passed to authorise adoption of the SAA procedure in other contexts adds some weight to the appellant’s argument but is in no way determinative.  If the Board was being set up today or rules were being made to regulate its procedures, I have little doubt that they would authorise adoption of the SAA procedure.  The Board’s inherent power to do so, however, stems, as I have found, from its obligation to perform its very important protective and preventative role whilst ensuring that its process is substantially fair for the prisoner.
32.	This conclusion is fortified by the fact that the Board is considered for Convention purposes to be a court.  It is not just any administrative tribunal.  As a court it has the inherent or implicit power to determine the procedure necessary to achieve it statutory purpose.  (See Taylor v Lawrence [2002] EWCA Civ. 90; [2003] QB 528 at paras. 17, 50-53).  The criminal courts have adopted the SAA procedure without legislative authority in the context of disclosure where there are PII issues.  In Secretary of State v Rehman [2003] 1 AC 153 the Court of Appeal invited the appointment of a Special Advocate when hearing an appeal against a decision of the Special Immigration Appeals Commission and in R v Shayler [2003] 1 AC 247 the House of Lords recognised that this procedure might be appropriate if it were necessary to examine very sensitive material on an application for judicial review by a member or former member of a security service.  
33.	So I turn to consider Mr Owen’s primary submission from the Strasbourg perspective.  Here it is submitted that the SAA procedure offends established principles of fairness by denying the prisoner the right to see and answer all adverse material presented to the Board and to be represented by counsel who is acting for and responsible to him.
34.	Mr Owen submitted that any measure which cut down a prisoner’s right to know the case against him and respond to it was a breach of article 5 (4).  This meant, he said, that Rule 5 of the 1997 Rules and the Rules for reviewing life sentences in Northern Ireland were arguably incompatible with the Convention.  We obviously do not have to decide any such issues, but they illustrate the width of Mr Owen’s submissions.
35.	Mr Owen emphasised how intrusive the SAA procedure was by reference to Lord Bingham’s speech in R v H and others [2004] EWHL 3;  [2004] 2 AC 134 where the House had to consider PII procedures in criminal trials. Of the SAA procedure Lord Bingham said (at para. 22):
Such an appointment does however raise ethical problems, since a lawyer who cannot take full instructions from his client, nor report to his client, who is not responsible to his client and whose relationship with the client lacks the quality of confidence inherent in any ordinary lawyer/client relationship, is acting in a way hitherto unknown to the legal profession.  Whilst not insuperable, these problems should not be ignored, since neither the defendant nor the public will be fully aware of what is being done.  The appointment is also likely to cause practical problems: of delay … expense … and of continuing review … None of these problems should deter the court from appointing special counsel where the interests of justice are shown to require it but the need must be shown.  Such an appointment will always be exceptional, never automatic; a course of last and never first resort.  It should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant.
36.	It is submitted that if this is the established threshold for the use of special advocates in relation to disclosure issues, the threshold must be even higher where a special advocate is used to address a tribunal on the substantive issue in the proceedings.
37.	Mr Eadie for the Secretary of State submitted that the appellant’s submissions had to be tested in the light of the following principles derived from the Strasbourg jurisprudence: 
(1).   Fairness and its ingredients need to be judged in context. 
(2).   The formulation of hard-edged principles is eschewed.
(3).   The constituent rights of fairness are not absolute.  Qualifications to them are justified provided they are necessary and proportionate.
(4).   The extent to which qualification or flexibility is permitted depends upon the context.  A greater degree of latitude is permitted in cases concerning civil rights than in criminal cases.  In deciding what is necessary it is legitimate to have regard to the interest of others, including the public if they are affected.  
(5).   The interaction of these interests is a matter of degree to be judged on a case by case basis.
38.	Most of these principles can be derived from the speeches of Lord Bingham in Brown v Stott; [2003] 1 AC at 704-5 and R v H and others at paras. 12, 23, 27-33.  But I do not understand that they are in dispute and I accept them.  I would add to the third principle that in considering whether qualification to the right is proportionate, consideration must be given to ways of mitigating or counter-balancing the restriction so as to achieve substantial fairness.  Thus in Chahal v UK [1996] 23 EHRR 413, an immigration case involving national security, the ECtHR held that there had been a breach of Article 5 (4)  because the SAA procedure, then only used in Canada, showed that there were techniques which could be employed which both accommodated legitimate security concerns about the nature and sources of intelligence information and yet achieved for the individual a substantial measure of procedural justice.  Failure to adopt a procedure of this kind meant that there had been a breach of the Convention right.  The court reached the same conclusion in Tinnelly & Sons Ltd v UK [1998] 27 EHRR 249, a discrimination case raising security issues in Northern Ireland.
39.	Applying these principles to this case it seems to me that the appellant’s complaint must fail.  His argument is that as a matter of principle it would never be fair for the Board to adopt the SAA procedure.  That cannot be right.  Fairness has to be judged on a case by case basis.  
40.	Furthermore, on the facts of this case it has been found that there would be a real risk to the safety of the source or sources of the sensitive material if it was disclosed to the appellant or his representatives.  In deciding whether it was necessary to withhold this material the Board rightly took into account, not only the interest of the appellant, but the interest of the public in having the Board perform its protective and preventative role on all the information available and the interests of the source or sources whose Article 2 and/or 3 rights required protection.  Recognising the prejudice to the appellant which its decision to withhold disclosure caused, the Board mitigated or counter-balanced that unfairness by adopting the SAA procedure which, it concluded, could secure acceptable standards of fairness to the appellant.  In reaching this decision I think it faithfully applied the principles to which I have referred.
41.	The alternatives open to the Board were unacceptable: disclosure to the appellant or his representatives posed a real risk to the source or sources; disregarding this sensitive material would have meant that the Board could not properly perform its duty and might put the public at risk; and it would have been invidious for the Board to have to test the evidence itself.  The SAA procedure was the obvious solution.  I agree with the judge however that such a solution should only be adopted in exceptional circumstances and should not become the norm.
42.	For the reasons which I have given I reject both limbs of Mr Owen’s primary submission.
43.	I can deal with Mr Owen’s alternative submission shortly.  He says that as the SAA procedure is exceptional it should only be reserved for cases involving national security.  He submits that in such cases the interest of the state as a whole are involved.  The need to protect a source only involves an individual or individuals.
44.	I do not accept this submission.  There is no principled distinction between the need to protect the interest of the State and the need to protect an individual if that is necessary.  Why should a member of the security services be protected and not a member of the public?  No such distinction is recognised domestically or in the Strasbourg jurisprudence.  The Northern Ireland life sentence rules, for example, enable the SAA procedure to be adopted for a number of reasons including national security and where disclosure would be likely adversely to affect the safety or any individual.   In  Edwards and Lewis v UK (App. Nos. 39647/98 and 40461/98), in the context of criminal proceedings the ECtHR said:  
There may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime which must be weighed against the rights of the accused.  In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest.
45.	For these reasons I reject Mr Owen’s alternative submission.
46.	It follows that I think the judge reached the right decision in this case and that  this appeal should be dismissed. 
Lord Justice Clarke:	I agree.
Mr Justice Jackson:		I also agree.
ORDER: Appeal dismissed. The appellant to pay the Board’s costs on the usual CLS funding terms. Application for permission to appeal to the House of Lords refused.

(Order does not form part of approved judgment)