COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
MR JUSTICE SULLIVAN
Strand, London, WC2A 2LL
B e f o r e :
THE MASTER OF THE ROLLS
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
| SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
Smith Bernal WordWave Limited
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MR KEIR STARMER QC, MS KATE MARKUS & MR ALI BAJWA (instructed by Messrs Arani & Co)) for the Respondent
MR MICHAEL SUPPERSTONE QC AND MS JUDITH FARBEY (instructed by the Special Advocates Support Office) appeared as Special Advocates
Crown Copyright ©
LORD PHILLIPS, CJ :
This is the judgment of the court.
"Pursuant to section 4(2) of the Human Rights Act 1998 that the procedures in section 3 of the Prevention of Terrorism Act 2005, relating to the supervision by the Court of the non-derogating Control Orders made by the Secretary of State are incompatible with the Respondent's rights to a fair hearing under Article 6(1) of the European Convention on Human Rights"
The Secretary of State challenges this declaration of incompatibility.
"The court is the appropriate tribunal for the purposes of section 7 of the Human Rights Act 1998 (c. 42) in relation to proceedings all or any part of which call a control order decision or derogation matter into question"
Astonishingly this provision was, it seems, overlooked both by counsel and the judge.
The legislative scheme
"An Act to provide for the making against individuals involved in terrorism-related activity of orders imposing obligations on them for purposes connected with preventing or restricting their further involvement in such activity; to make provision about appeals and other proceedings related to such orders; and for connected purposes."
The PTA seeks to achieve this object by empowering the Secretary of State to impose control orders on those suspected of being terrorists. Section 1(1) defines a control order:
"In this Act 'control order' means an order against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism."
"The Secretary of State may make a control order against an individual if he:
(a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and
(b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual."
"Terrorism-related activity" is defined in subsection 1(9) as any one or more of the following:
"(a) the commission, preparation or instigation of acts of terrorism;
(b) conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so;
(c) conduct which gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so;
(d) conduct which gives support or assistance to individuals who are known or believed to be involved in terrorism-related activity; and for the purposes of this subsection it is immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism generally."
The obligations that may be imposed by a non-derogating control order are:
" any obligations that the Secretary of State considers necessary for purposes connected with preventing or restricting involvement by that individual in the terrorism activity."
(see subsection 1(3)).
"It shall be immaterial, for the purposes of determining what obligations may be imposed by a control order made by the Secretary of State, whether the involvement in terrorism-related activity to be prevented or restricted by the obligations is connected with matters to which the Secretary of State's grounds for suspicion relate."
"(1) The Secretary of State must not make a non-derogating control order against an individual except where--
(a) having decided that there are grounds to make such an order against that individual, he has applied to the court for permission to make the order and has been granted that permission;
(2) Where the Secretary of State makes an application for permission to make a non-derogating control order against an individual, the application must set out the order for which he seeks permission and
(a) the function of the court is to consider whether the Secretary of State's decision that there are grounds to make that order is obviously flawed;
(b) the court may give that permission unless it determines that the decision is obviously flawed; and
(c) if it gives permission, the court must give directions for a hearing in relation to the order as soon as reasonably practicable after it is made."
(5) The court may consider an application for permission under subsection (1)(a) --
(a) in the absence of the individual in question;
(b) without his having been notified of the application or reference; and
(c) without his having been given an opportunity (if he was aware of the application or reference) of making an representations to the court;
but this section is not to be construed as limiting the matters about which rules of court may be made in relation to the consideration of such an application or reference.
(7) The directions given under subsection 2(c) must include arrangements for the individual in question to be given an opportunity within 7 days of the court's giving permission or (as the case may be) making its determination on the reference to make representations about
(a) the directions already given; and
(b) the making of further directions.
(8) and (9) [urgent cases]
(10) On a hearing in pursuance of directions under subsection (2)(c) the function of the court is to determine whether any of the following decisions of the Secretary of State was flawed
(a) his decision that the requirements of section 2(1)(a) and (b) were satisfied for the making of the order; and
(b) his decisions on the imposition of each of the obligations imposed by the order.
(11) In determining
(a) what constitutes a flawed decision for the purposes of subsection (2) or
(b) the matters mentioned in subsection (10),
the court must apply the principles applicable on an application for judicial review.
(12) If the court determines, on a hearing in pursuance of directions under subsection (2)(c) that a decision of the Secretary of State was flawed, its only powers are
(a) power to quash the order;
(b) power to quash one or more obligations imposed by the order; and
(c) power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes.
(13) In every other case the court must decide that the control order is to continue in force."
"(3) At the preliminary hearing, the court may make a control order against the individual in question if it appears to the court-
(a) that there is material which (if not disproved) is capable of being relied on by the court as establishing that the individual is or has been involved in terrorism-related activity;
(b) that there are reasonable grounds for believing that the imposition of obligations on that individual is necessary for purposes connected with protecting members of the public from a risk of terrorism;
(c) that the risk arises out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention; and
(d) that the obligations that there are reasonable grounds for believing should be imposed on the individual are or include derogating obligations of a description set out for the purposes of the designated derogation in the designation order."
"(7) At the full hearing, the court may confirm the control order (with or without modifications) only if-
(a) it is satisfied, on the balance of probabilities, that the controlled person is an individual who is or has been involved in terrorism-related activity;
(b) it considers that the imposition of obligations on the controlled person is necessary for purposes connected with protecting members of the public from a risk of terrorism;
(c) it appears to the court that the risk is one arising out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention; and
(d) the obligations to be imposed by the order or (as the case may be) by the order as modified are or include derogating obligations of a description set out for the purposes of the designated derogation in the designation order."
"(a) that in control order proceedings and relevant appeal proceedings the Secretary of State is required (subject to rules made under the following paragraphs) to disclose all relevant material;
(b) that the Secretary of State has the opportunity to make an application to the relevant court for permission not to disclose relevant material otherwise than to that court and persons appointed under paragraph 7;
(c) that such an application is always considered in the absence of every relevant party to the proceedings and of his legal representative (if he has one);
(d) that the relevant court is required to give permission for material not to be disclosed where it considers that the disclosure of the material would be contrary to the public interest;
(e) that, where permission is given by the relevant court not to disclose material, it must consider requiring the Secretary of State to provide the relevant party and his legal representative (if he has one) with a summary of the material;
(f) that the relevant court is required to ensure that such a summary does not contain information or other material the disclosure of which would be contrary to the public interest.
(g) that provision satisfying the requirements of sub-paragraph (4) applies where the Secretary of State does not have the relevant court's permission to withhold relevant material from a relevant party to the proceedings or his legal representative (if he has one), or is required to provide a summary of such material to that party or his legal representative.
(4) The provision that satisfies the requirements of this sub-paragraph is provision which, in a case where the Secretary of State elects not to disclose the relevant material or (as the case may be) not to provide the summary, authorises the relevant court
(a) if it considers that the relevant material or anything that is required to be summarised might be of assistance to a relevant party in relation to a matter under consideration by that court; and
(b) in any other case, to ensure that the Secretary of State does not rely in the proceedings on the material or (as the case may be) on what is required to be summarised.
(5) In this paragraph 'relevant material', in relation to any proceedings, means
(a) any information or other material that is available to the Secretary of State and relevant to the matters under consideration in those proceedings; or
(b) the reasons for decisions to which the proceedings relate."
" disclosure is made contrary to the public interest if it is made contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest."
"Where the court gives permission to the Secretary of State to withhold closed material, the court must
(a) consider whether to direct the Secretary of State to serve a summary of that material on the relevant party or his legal representative; but
(b) ensure that no such summary contains information or other material the disclosure of which would be contrary to the public interest."
The control order
" (1) You will reside at [address given] ('the residence') and shall give the Home Office at least 7 days prior notice of any change of residence.
(2) You shall report in person to your local police station (the location of which will be notified in writing to you at the imposition of this order) each day at a time to be notified in writing by your contact officer, details to be provided in writing upon service of the order.
(3) You must surrender your passport, identity card or any other travel document to a police officer or persons authorised by the Secretary of State within 24 hours. You shall not apply for or have in your possession any passport, identity card, travel document(s) or travel ticket which would enable you to travel outside the UK.
(4) You must not leave the UK.
(5) You are prohibited from entering or being present at any of the following:-
(a) any airport or sea port;
(b) any part of a railway station that provides access to an international rail service.
(6) You must permit entry to police officers and persons authorised by the Secretary of State, on production of identification, at any time to verify your presence at the residence and/or to ensure that you can comply with and are complying with the obligations imposed by the control order. Such monitoring may include but is not limited to:-
(a) a search of the residence;
(b) removal of any item to ensure compliance with the remainder of the obligations in these orders; and
(c) the taking of your photograph."
"4. In considering what obligations to impose on MB, the Secretary of State has taken into account all the information before him, including the specific terrorism-related activity that he suspects MB was or is involved in. In addition, he has taken into account the known personal and family circumstances of MB. He is a single male and his immediate family are resident in the UK. The obligations will restrict his ability to travel outside the United Kingdom. However, given the seriousness of the activity that MB has been and is suspected of, the Secretary of State is satisfied that the proposed obligations are necessary to protect members of the public from a risk of terrorism, and that where the obligations interfere with MB's Convention rights, they are proportionate and the least intrusive measure needed to prevent and/or restrict involvement in that terrorism-related activity
5. MB currently resides with his adult sister. Consideration has been given to any proposed obligation that would or might interfere with his or his sister's Convention rights and whether such interferences outweigh or reduce to any extent the proportionality of each obligation. Insofar as the proposed obligations do still interfere with his or his sister's Convention rights, the Secretary of State considers such interferences to be justified and proportionate, bearing in mind the legitimate aim sought of preventing and restricting terrorism-related activity."
The material delivered to the court included an open statement and supporting documents dated August 2005, a closed statement and supporting documents and an application for permission to withhold that closed material together with an outline summary of the reasons why the Secretary of State contended that the closed material should be withheld.
The judge's reasoning
"96. Standing back and looking at the overall picture, there can be only one conclusion. To say that the Act does not give the respondent in this case, against whom a non-derogating control order has been made by the Secretary of State, a fair hearing in the determination of his rights under Article 8 of the Convention would be an understatement. The court would be failing in its duty under the 1998 Act, a duty imposed upon the court by Parliament, if it did not say, loud and clear, that the procedure under the Act whereby the court merely reviews the lawfulness of the Secretary of State's decision to make the order upon the basis of the material available to him at that earlier stage are conspicuously unfair. The thin veneer of legality which is sought to be applied by section 3 of the Act cannot disguise the reality. That controlees' rights under the Convention are being determined not by an independent court in compliance with Article 6.1, but by executive decision-making, untrammelled by any prospect of effective judicial supervision."
i) The only function that the court was permitted to perform under section 3(10) was to consider whether, at the time that his decision was made and on the material that was then before him, the Secretary of State's decision was flawed.
ii) The function of the court was to review the decision of the Secretary of State, not to form its own view of the merits of the case.
iii) In performing this function, the court was required to apply a particularly low standard of proof;
iv) The court reached its decision on the basis of evidence of which MB was unaware and which he was therefore not in a position to controvert.
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."
"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."
The date as at which the facts fall to be reviewed
"The Act makes it clear that the court's role is purely supervisory: see sub-sections 3(10) and (11). Thus, the court is not itself deciding whether, on the totality of the evidence available as at the date of hearing, the criteria in paragraphs (a) and (b) in section 2(1) are met. It is judicially reviewing the Secretary of State's decisions made on or shortly before 1st September 2005 that the criteria in paragraphs (a) and (b) of section 2(1) were met and that the obligations imposed by the order were necessary under section 1(3). It follows that the court must consider whether those decisions of the Secretary of State were "flawed" upon the basis of the material that was put before the Secretary of State at that time."
"The court, required by section 6(1) to act in a way compatible with Convention rights, must have regard to the facts as they are at the time when it makes its order."
Section 3(10) cannot be read so as to restrict the court, when addressing a human rights issue, to a consideration of whether, when he made his initial decision, the Secretary of State had reasonable grounds for doing so.
"If an applicant for permission to move for judicial review claims that the Secretary of State's decision is vitiated by some form of illegality he will file evidence to that effect. The Court will not shut out evidence which is relevant to the issues. Indeed, it may order disclosure of evidence necessary for disposing fairly of the application. The evidence is not strictly limited to evidence which was or should have been before the Secretary of State at the time of the decision."
The standard of review
"74. Unlike SIAC's functions on appeal under the 2001 Act, the court's role in this hearing under section 3(10) of the Act is to review the lawfulness of the Secretary of State's decisions on or about 1 September 2005 and to decide whether they were flawed on judicial review principles. Although Mr Burnett emphasised (perhaps unusually in submissions made on behalf of the Secretary of State) the breadth of judicial review principles today and the fact that they now required the court to consider issues of proportionality where Convention rights are engaged, the fact remains that, applying judicial review principles, the court is not able to engage in a merits review under section 3(10): see paragraph 28 of the speech of Lord Steyn in R (Daly) v Secretary of State for the Home Department  2 AC 532,  UK HL 26."
"Before making, or applying for the making of, a control order against the individual, the Secretary of State must consult the chief officer of the police force about whether there is evidence available that could realistically be used for the purposes of a prosecution of the individual for an offence relating to terrorism."
It is implicit in the scheme that if there is evidence that justifies the bringing of a criminal charge, a suspect will be prosecuted rather than made the subject of a control order.
"Having a 'reasonable suspicion" presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence" Fox, Campbell and Hartley v United Kingdom (1991) 13EHRR 157 at paragraph 38.
The standard of proof
"The standard of proof to be applied by the decision taker in making the decision subject to review is very low: reasonable grounds for suspicion, even though the allegation made against the respondent, that he is or has been involved in terrorism-related activity, is a very serious one and may in some cases amount to an allegation that he has committed very serious crimes which would be punishable upon conviction in a criminal court with life imprisonment."
At paragraph 55 he added:
"Unsurprisingly, Mr Burnett submitted that if reasonable suspicion was sufficient to justify detention under the 2001 Act, it could not be said to be unfair as the basis for imposing obligations less than detention under section 3 of the Act. He also submitted that one should distinguish between substantive unfairness (a submission that the Act as a whole is unfair) and procedural unfairness (a submission that the particular procedure in section 3 is unfair). Criticism of the standard of proof fell into the former category. I do not accept that last submission. The standard of proof required of the original decision taker is capable of being a relevant factor when making an assessment of the extent to which the reviewing court will in reality be able to influence the decision-making process so as to have "sufficient jurisdiction" to deal with any particular case."
Finally at paragraph 59, the judge stated:
"While criterion (b) in section 2(1) of the Act does raise a question which is a matter for evaluation and judgment, the question raised by criterion (a) is the same (apart from the fact that the behaviour in issue is much more serious) as the question raised in subsection 1(a) of the Crime and Disorder Act. Both raise serious questions of fact with serious implications for the individual if an order, whether an ASBO or control order, is made. If there are "good reasons in the interest of fairness" for applying the criminal standard of proof when deciding whether an individual has acted in an anti-social manner, it cannot be irrelevant in assessing the fairness of control order proceedings overall that a much lower standard of proof is applied when the underlying allegation is that an individual has been involved in terrorism-related activity. Of course, the risk posed to members of the public by terrorism is far more grave than the risk posed to persons in a particular local government area by anti-social behaviour. In the former case, the interests of national security are engaged and it is said that this, together with the nature of much intelligence information, will make it difficult, for evidential reasons, for the Secretary of State to establish more than a reasonable suspicion. Is that submission correct?"
The significance of the provision for closed material
The judge did not find that the PTA provisions for the court to consider closed material were necessarily incompatible with a fair trial. He held, however, that in the circumstances of this case the fact that the most material evidence was not disclosed to MB made a very significant contribution to the overall unfairness of the proceedings. Thus at paragraph 59(5) he said:
"Not merely does the Secretary of State have to meet a very low standard of proof whilst being able to deploy the whole of his case, including evidence that would otherwise be inadmissible, the procedure enables to the Secretary of State to place a significant part, and in some cases the significant part of his case, before the court in the absence of the respondent and his legal representatives: see the provisions relating to the closed material, the court's power to exclude the respondent and his legal advisers, and the appointment and duties of the Special Advocate contained in Part 76 of the CPR (above)."
At paragraph 62 he added :
"The basis for the Security Service's confidence is wholly contained within the closed material. Without access to that material it is difficult to see how, in reality, the respondent could make any effective challenge to what is, on the open case before him, no more than a bare assertion."
"The Court recognises that the use of confidential material may be unavoidable where national security is at stake. This does not mean, however, that the national authorities can be free from effective control by the domestic courts whenever they choose to assert that national security and terrorism are involved. The Court attaches significance to the fact that, as the intervenors pointed out in connection with Article 13, in Canada a more effective form of judicial control has been developed in cases of this type. This example illustrates that there are techniques which can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice."
"In this connection, Amnesty International, Liberty, the Aire Centre and the JCWI drew the Court's attention to the procedure applied in such cases in Canada. Under the Canadian Immigration Act 1976, a Federal Court judge holds an in camera hearing of all the evidence, at which the applicant is provided with a statement summarising, as far as possible, the case against him or her and has the right to be represented and to call evidence. The confidentiality of security material is maintained by requiring such evidence to be examined in the absence of both the applicant and his or her representative. However, in those circumstances, their place is taken by a security-cleared counsel instructed by the court, who cross-examines the witnesses and generally assists the court to test the strength of the State's case. A summary of the evidence obtained by this procedure, with necessary deletions, is given to the applicant."
"The Court notes that in other contexts it has been found possible to modify judicial procedures in such a way as to safeguard national security concerns about the nature and sources of intelligence information and yet accord the individual a substantial degree of procedural justice."
It seems plain that, in appropriate cases, the ECtHR is prepared to accept that the use of a special advocate to deal with closed material is not incompatible with the requirements of Articles 5(4), 6 and 13.
"However, as the applicants recognised, the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings 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. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under article 6(1). Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities."
This statement was made in the context of the requirements of Article 6.
"The problem of reconciling an individual defendant's right to a fair trial with such secrecy as is necessary in a democratic society in the interests of national security or the prevention or investigation of crime is inevitably difficult to resolve in a liberal society governed by the rule of law. It is not surprising that complaints of violation have been made against member states including the United Kingdom, some of which have exposed flaws in or malfunctioning of our domestic procedures. The European Court has however long accepted that some operations must be conducted secretly if they are to be conducted effectively."
"The proceedings before the Commission involved departures from some of the requirements of article 6. However, having regard to the issues to be inquired into, the proceedings are as fair as could reasonably be achieved. It is true that the detainees and their lawyers do not have the opportunity of examining the closed material. However, the use of separate counsel to act on their behalf in relation to the closed evidence provides a substantial degree of protection. In addition, in deciding upon whether there has been compliance with article 6 it is necessary to look at the proceedings as a whole (including the appeal before this court). When this is done and the exception in relation to national security, referred to in article 6, is given due weight, I am satisfied there is no contravention of that article."
"(b) the need to secure that information is not disclosed to an extent, or in a manner, that is contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence services."
In particular, these rules restrict disclosure of relevant evidence to a complainant. It is plain that, without such restriction, the fundamental purpose of the RIPA could be defeated.
" The disclosure of information is not an absolute right where there are competing interests, such as national security considerations, and it may be necessary to withhold information for that reason, provided that, as in the kind of cases coming before this Tribunal, it is strictly necessary to do so and the restriction is counterbalanced by judicial procedures which protect the interests of the Complainants: see Fitt v United Kingdom (2000) 30 EHRR 480 paras 45 and 46 and R v Smith (2001) 1 WLR 1031 at para 25."