COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
The Hon Mr Justice Stanley Burnton (AF)
The Hon Mr Justice Sullivan (AM)
The Hon Mr Justice Mitting (AN)
The Hon Mr Justice Silber (AE)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WALLER V-P
LORD JUSTICE SEDLEY
| SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
|AF, AM and AN
SECRETARY OF STATE FOR THE HOME DEPARTMENT
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David Pannick QC, Timothy Otty QC, Zubair Ahmad and Tom Hickman (instructed by Middleweeks) for AF
Timothy Otty QC and Kate Markus (instructed by Messrs Arani & Co for AM
Tim Owen QC and Frances Webber (instructed by Messrs Birnberg Peirce) for AN
Owen Davies QC and Ali Nanseen Bajwa (instructed by Messrs Chambers Solicitors) for AE
Hugo Keith and Jeremy Johnson, special advocates for AF
Mohammed Khamisa QC and Shaheen Rahman special advocates for AM
Andrew Nicol QC and Paul Bowen special advocates for AN
Michael Supperstone QC and Tom de la Mare, special advocates for AE
Michael Fordham QC, Shaheed Fatima and Tom Richards for JUSTICE, intervening and providing written submissions
Hearing dates: 14, 15, 16, 21, 22 and 23 July 2008
Crown Copyright ©
Sir Anthony Clarke MR and Waller LJ, V-P:
The statutory framework
"(a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and
(b) considers it 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."
It is not now in dispute that the critical issue under section 3(10) of the PTA 2005 is whether there are reasonable grounds for suspicion that the controlee is or was involved in terrorism-related activity: see MB in this court (in a part of the judgment not disapproved in the House of Lords) at  et seq.
"26. The Schedule to the 2005 Act provides a rule-making power applicable to both derogating and non-derogating control orders. It requires the rule-making authority (para 2(b)) to have regard in particular to the need to ensure that disclosures of information are not made where they would be contrary to the public interest. Rules so made (para 4(2)(b)) may make provision enabling the relevant court to conduct proceedings in the absence of any person, including a relevant party to the proceedings and his legal representative. Provision may be made for the appointment of a person to represent a relevant party (paras 4(2)(c) and 7). The Secretary of State must be required to disclose all relevant material (para 4(3)(a)), but may apply to the court for permission not to do so (para 4(3)(b)). Such application must be heard in the absence of every relevant person and his legal representative (para 4(3)(c)) and the court must give permission for material not to be disclosed where it considers that the disclosure of the material would be contrary to the public interest (para 4(3)(d)). The court must consider requiring the Secretary of State to provide the relevant party and his legal representative with a summary of the material withheld (para 4(3)(e)), but the court must ensure that such summary does not contain information or other material the disclosure of which would be contrary to the public interest (para 4(3)(f)). If the Secretary of State elects not to disclose or summarise material which he is required to disclose or summarise, the court may give directions withdrawing from its consideration the matter to which the material is relevant or otherwise ensure that the material is not relied on (para 4(4)).
27. Part 76 of the Civil Procedure Rules gives effect to the procedural scheme authorised by the Schedule to the 2005 Act. Rule 76.2 modifies the overriding objective of the Rules so as to require a court to ensure that information is not disclosed contrary to the public interest. Rule 76.1(4) stipulates that disclosure is contrary to the public interest if it is made contrary to the interests of national security, the international relations of the UK, the detection or prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest. Part III of the Rule applies to non-derogating control orders. It is unnecessary to rehearse its detailed terms. Provision is made for the exclusion of a relevant person and his legal representative from a hearing to secure that information is not disclosed contrary to the public interest (rule 76.22). Provision is made for the appointment of a special advocate whose function is to represent the interests of a relevant party (rules 76.23, 76.24), but who may only communicate with the relevant party before closed material is served upon him, save with permission of the court (rules 76.25, 76.28(2)). The ordinary rules governing evidence and inspection of documents are not to apply (rule 76.26): evidence may be given orally or in writing, and in documentary or any other form; it may receive evidence which would not be admissible in a court of law; it is provided that "Every party shall be entitled to adduce evidence and to cross-examine witnesses during any part of a hearing from which he and his legal representative are not excluded".
The decision of the House of Lords in MB and AF
"165. The real question in my view is suggested by Lord Rodger in paragraph 111 of Roberts: does the procedure meet the minimum standards of fairness for a hearing of this particular kind in circumstances where the use of the non-disclosed material (by the decision maker or court) was necessary and proportionate? Whether non-disclosure of material is necessary and proportionate will usually involve a balance being struck either in legislation or in the hearing process, between the rights of an individual and the reduction of risk to a serious public interest in order to protect the rights of others."
"166. There is nothing in Roberts which requires me to conclude that the process laid down by the Act and the Rules is incompatible with Article 6 as a result of the negligible disclosure of the case against him which AF has received. Nor do the comments relied on form a clear statement of principle supporting what Mr Otty submitted. On the contrary, there is nothing in Chahal to suggest that there is a point at which the suggested special advocate procedure for legitimately withheld material, becomes unfair. There is no clear basis for a holding of incompatibility.
167. I have taken time with this argument notwithstanding MB, because it is directed at the Court's own functions and duties, and indeed at what could have been a decision of mine to uphold the Order on a basis which was said to be wholly unfair. I should add that looking at the nature of the issue, namely necessary restrictions on movement in an important interest, and at the way in which the Special Advocates were able to and did deal with the issues on the closed material, I do not regard the process as one in which AF has been without a substantial and sufficient measure of procedural protection."
"173. As in Chahal, the Canadian Supreme Court held that the restrictions were not justifiable because they went further than was necessary. As in Chahal, some form of special advocate system was commended. In neither case was there any suggestion of an irreducible core of allegation or evidence that had to be made available with such a special advocate system in place. And both those cases involved detention rather than restriction on movement."
"The real problem arises where material is relied on in coming to a decision which the person at risk of an adverse ruling has had no adequate opportunity to challenge or rebut, as in Feldbrugge v The Netherlands (1986) 8 EHRR 425, paras 42, 44; Van Mechelen v The Netherlands, [(1977) 25 EHRR 647], paras 62-65; Luca v Italy (2001) 36 EHRR 807, paras 43-45. In each of these cases the trial was found to be unfair."
Of those cases, Van Mechelen and Luca were criminal cases. Feldbrugge was a civil case but it was not a case which was concerned in any way with national security. As we see it, it was simply a case in which the ordinary civil principle was applied.
"The court has not been insensitive to the special problems posed to national security by terrorism: see, for instance, Murray v United Kingdom (1994) 19 EHRR 193, paras 47, 58. It has (as it was said in Brown v Stott, [ 1 AC 681, 719] above, p 704) eschewed the formulation of hard-edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or the circumstances, and has recognised the need for a fair balance between the general interest of the community and the rights of the individual. But even in cases where article 6(1) has not been in issue, the court has required that the subject of a potentially adverse decision enjoy a substantial measure or degree of procedural justice: see Chahal v United Kingdom , para 131; Al-Nashif v Bulgaria (2002) 36 EHRR 655, para 97. In Tinnelly & Sons Ltd and McElduff & Others v United Kingdom (1998) 27 EHRR 249, para 72, the court held that any limitation of the individual's implied right of access to the court must not impair the very essence of the right."
Mr Sales QC places considerable reliance upon those cases, to which we will return.
"I would respectfully agree with the opinion of Lord Woolf in Roberts, para 83(vii), that the task of the court in any given case is to decide, looking at the process as a whole, whether a procedure has been used which involved significant injustice to the controlled person (see also R (Hammond) v Secretary of State for the Home Department  UKHL 69,  1 AC 603, para 10)."
On this footing, the question in each case is whether there has been significant injustice to the controlee. It appears to us that Baroness Hale, Lord Carswell and Lord Brown approached this question in a way which was significantly more favourable to the position of the SSHD than Lord Bingham. This can we think best be seen from the approach adopted to AF on the facts. Before we consider the reasoning in the majority speeches, it is convenient to summarise briefly the competing submissions. We should also note in passing that, so far as we are aware, the House of Lords did not consider any of the closed material in either MB or AF.
Submissions of behalf of SSHD
i) While the overall right to a fair hearing cannot be infringed, its constituent rights are not absolute and must be balanced against the needs of the community, especially national security: see above and Brown v Stott per Lord Bingham at 704D-G.
ii) It is recognised that the court is faced with a difficult and sensitive task. It is concerned to balance what Mr Sales called a triangulation of different considerations and interests. First, there is the interest of the controlee to a fair hearing of the question whether there are grounds for suspicion. It is important in this regard to appreciate that whether there are such grounds is the question for decision; the existence of such grounds cannot be taken as the starting point. Secondly, there is the position of the secret services; both in the public interest and in the interest of those involved on the ground. Their information requires protection. It is important to note that the question is whether article 6 requires the disclosure of material which the court has by that stage ruled can be withheld on the grounds of national security. Thirdly (and of great importance), there is the right of the community as a whole to be protected against terrorist activities, which may threaten the life and safety of very many people.
iii) The reasons why the material which is gathered by the intelligence agencies and which the SSHD wishes to rely upon in control order proceedings cannot ordinarily be disclosed are perhaps self-evident but include: protecting the lives of agents and their families; maintaining the confidence of agents and thus the ability of the security services to recruit agents, to acquire intelligence on terrorist operations and to disrupt them; maintaining the secrecy of surveillance operations and their techniques and safeguarding the agencies' ability to conduct or continue to conduct such operations; and ensuring that other operations are not prejudiced.
iv) Whether a limitation on a particular right under article 6 is permissible depends upon whether it pursues a legitimate aim and "represents no greater qualification than the situation calls for": Brown v Stott ibid. See also Ashingdane v United Kingdom (1985) 7 EHRR 528 at  (restrictions must pursue a legitimate aim and not destroy the essence of the right and be proportionate) and R v Shayler  1 AC 247 per Lord Hope at : limitations on disclosure "must be rational, fair and not arbitrary, and they must impair the fundamental right no more than is necessary". In assessing these questions it is important to bear in mind that article 6 does not impose unvarying standards; account must be taken of the context, facts and circumstances of the particular case.
v) The particular context of control orders is exceptional. Their purpose is to place exceptional but necessary restrictions on individuals whom there are reasonable grounds for suspecting pose a terrorist threat.
vi) As stated above, the ECtHR has recognised the duty of states to take the measures needed to combat terrorism and the necessity to balance that duty against human rights: see eg the two principles in the Guidelines promulgated on 11 July 2002 by the Committee of Ministers of the Council of Europe quoted by Lord Bingham at  of his speech in MB and AF.
vii) In particular the ECtHR encouraged the use of special advocates in Chahal at :"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 (see paragraph 144 below), 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."See also Al-Nashif and Tinnelly, referred to by Lord Bingham at . Although Mr Sales recognises that the ECtHR made it clear in Al-Nashif at  that it was not expressing an opinion on the conformity of the United Kingdom system with the Convention, these cases show that the court was positively affirming that the state may legitimately rely upon closed evidence in proceedings relating to preventative measures for the protection of national security and that a possible (ie legitimate) way of reconciling the relevant interests would be through the adoption of a special advocate procedure. See also Charkaoui.
viii) The above conclusion is borne out in particular by Al-Nashif at :"The Court considers that in cases of the expulsion of aliens on grounds of national security as here reconciling the interest of preserving sensitive information with the individual's right to an effective remedy is obviously less difficult than in the above-mentioned cases where the system of secret surveillance or secret checks could only function if the individual remained unaware of the measures affecting him.While procedural restrictions may be necessary to ensure that no leakage detrimental to national security would occur and while any independent authority dealing with an appeal against a deportation decision may need to afford a wide margin of appreciation to the executive in matters of national security, that can by no means justify doing away with remedies altogether whenever the executive has chosen to invoke the term "national security" (see the above cited Chahal judgment and paragraph 96 above on possible ways of reconciling the relevant interests involved).Even where an allegation of a threat to national security is made, the guarantee of an effective remedy requires as a minimum that the competent independent appeals authority must be informed of the reasons grounding the deportation decision, even if such reasons are not publicly available. The authority must be competent to reject the executive's assertion that there is a threat to national security where it finds it arbitrary or unreasonable. There must be some form of adversarial proceedings, if need be through a special representative after a security clearance. Furthermore, the question whether the impugned measure would interfere with the individual's right to respect for family life and, if so, whether a fair balance is struck between the public interest involved and the individual's rights must be examined."
ix) One of the features of the special advocate system which enhances the fairness of the procedure is that there is full disclosure of all relevant material to the special advocates, however secret or confidential the material may be. They can then deploy the material in the way most favourable to the controlee.
x) In these circumstances, it is clear from the approach of the ECtHR that it will only be in an exceptional case that the court should hold that the controlee has not, in the terms of Chahal at , been accorded a substantial measure of procedural justice or, in the terms of the last sentence of  in Lord Bingham's speech in MB and AF, that the procedure (looked at as a whole) has involved a significant injustice to the controlee.
xi) It follows that there is no room for the principle that there is an irreducible minimum of information, whether in the form of the allegations or the evidence, which must as a matter of law or principle always be given to the controlee himself. Alternatively, depending upon the circumstances of the particular case, that minimum may be expressed in general terms or, put another way, at a relatively high level of generality.
xii) It may be necessary at a relatively high level of generality to protect sources of information and in some cases (as in the cases of MB and AF) the gist may not distinctly indicate an area of the case against the controlee. Nevertheless, as Mr Sales put it in a written note, this should usually be sufficient, after allowing for the role of the court in scrutinising the closed material, the role of the special advocate in scrutinising the closed material and taking account of any evidence the controlee is able to give to meet the state's fair trial obligations under article 6.
xiii) It is however accepted that there may be exceptional cases in which this is not the case, that is where the controlee is denied the very essence of the right under article 6, although this is subject to the 'Lord Brown exception'.
xiv) The 'Lord Brown exception' was implicitly (if not explicitly) approved by Baroness Hale and Lord Carswell and is in any event sound in law.
xv) If the 'Lord Brown exception' applies on the facts, and the judge can be sure that, whatever information were given to the controlee, it would make no difference to the conclusion that there were reasonable grounds for suspecting that he is or was engaged in terrorist-related activity, the procedure as a whole must be regarded as fair both to the controlee and to the SSHD. In that event there would be no infringement of the controlee's rights under article 6 in this context.
xvi) All depends upon the circumstances of the particular case.
xvii) These conclusions are consistent with the opinions of the majority in MB and AF and, in particular, with the approach of Baroness Hale to the decision of Ouseley J in AF to which we referred earlier.
xviii) There was no infringement of article 6 in any of the cases which are the subject of the appeal.
Submissions on behalf of the controlees
i) The speeches in MB and AF establish that article 6 confers on the controlee a core irreducible entitlement to be told sufficient about the substance of the allegations to enable him to make a meaningful response unless (which is not here the case) the special advocates can defeat the SSHD's grounds for reasonable suspicion without disclosure to the controlee. How much need be disclosed in order to comply with this requirement will depend on the circumstances of the individual case. Here the disclosure in AF's case was plainly inadequate and the special advocates were not able to defeat the Secretary of State's case without AF being informed of the case against him.
ii) Mr Sales relies upon the public interest in combating terrorism without disclosing secret information which would cause damage to the public interest, such as that which would undermine: agents or informants; surveillance operations and their techniques; the ability of UK intelligence agencies to continue to conduct effective terrorist operations. He also emphasises that a proper balance of the various public interests is secured by the use of special advocates. That approach was, however, that adopted by this court in MB (at , [79-80] and [83-86]), and was the approach held to be wrong in law in the House of Lords: see eg per Baroness Hale at . The approach is, moreover, wrong in law because the controlee's core entitlement to know the gist of the case against him is fundamental and cannot be balanced against other public interests and because the role of the special advocate does not enable the controlee to play a meaningful part in the proceedings if he is not told the gist of the case against him.
iii) It is no answer to the right to procedural fairness that the substance of the case against the controlee is so strong that there would be nothing he could usefully say. The 'Lord Brown exception' was approved by no other member of the appellate committee and is bad in law. The court cannot sensibly or accurately assess whether the controlee could have something of value to say unless and until the court knows what his answers are.
iv) Although the issue is whether the Secretary of State has reasonable grounds for suspicion, the standard of proof is a high one: see Lord Bingham in MB and AF at , with which Lady Hale and Lord Brown agreed at  and  respectively. A suspicion can only be reasonable in this context to the extent that an adequate substratum of fact has been proved to the criminal standard, or at least to the civil standard.
"1. Notwithstanding the national security context, every subject of a non-derogating control order retains a core, irreducible minimum entitlement to be able effectively to challenge/rebut the case against him (see final sentence, para 34, speech of Lord Bingham in MB and, accordingly the A6 right to a fair trial demands that every controlee receives sufficient disclosure to enable him, with or without a special advocate, to make such a challenge.
2. The appointment of a special advocate is not of itself a guarantee of compliance with the A6 right to a fair trial.
3. Decisions on what must be disclosed to achieve compliance with A6 are always fact sensitive and, thus, are necessarily incapable of categorisation into "usual" and "exceptional" cases."
Mr Owen's submissions are in essence the same as those of Mr Pannick except that his primary submission is, we think, that the controlee is entitled to be told both the case and the evidence against him, either the substance of it or in any event the gist of it.
"What will be determinative in a particular case is whether looking at the process as a whole a decision has been taken by the board using a procedure that involves significant injustice to the prisoner."
It is important to note the stress placed by Lord Carswell on looking at the process as a whole. He also stressed that the question was one of balance. He said at :
"In the present case one has to balance two interests, that of the controlee and the public interest, without the added factor of protecting the informant. Both interests are clear and strong, but in my opinion it is possible to accommodate both with an appropriate balance."
"I cannot accept that a suspect's entitlement to an essentially fair hearing is merely a qualified right capable of being outweighed by the public interest in protecting the state against terrorism (vital though, of course, I recognise that public interest to be). On the contrary, it seems to me not merely an absolute right but one of altogether too great importance to be sacrificed on the altar of terrorism control. By the same token that evidence derived from the use of torture must always be rejected so as to safeguard the integrity of the judicial process and avoid bringing British justice into disrepute (A v Secretary of State for the Home Department (No 2)  2 AC 2 AC 221), so too in my judgment must closed material be rejected if reliance on it would necessarily result in a fundamentally unfair hearing."
It is plain from the last part of Lord Brown's , which we quote below, that he equates a fundamentally unfair hearing with significant injustice to the suspect or his not being accorded even a substantial measure of procedural justice or the very essence of his right to a fair hearing being impaired. It seems to us that these are indeed in essence the same test.
"I do consider, however, that there is a fairly heavy burden on the controlee to establish that there has been a breach of article 6, for the legitimate public interest in withholding material on valid security grounds should be given due weight. The courts should not be too ready to hold that a disadvantage suffered by the controlee through the withholding of material constitutes a breach of article 6."
Lord Brown too thought that, if the approach of the majority were adopted, it was "highly likely" that the special advocate procedure would safeguard the suspect from significant injustice, although he recognised that it would not invariably do so: see  quoted below.
"The PTA authorises the imposition of obligations where there are reasonable ground for suspicion. The issue that has to be scrutinised by the court is whether there are reasonable grounds for suspicion. That exercise may involve considering a matrix of alleged facts, some of which are clear beyond reasonable doubt, some of which can be established on the balance of probability and some of which are based on no more than circumstances giving rise to suspicion. The court has to consider whether the matrix amounts to reasonable grounds for suspicion and this exercise differs from that of deciding whether a fact has been established according to a specified standard of proof. It is the procedure for determining whether reasonable ground exist which has to be fair if article 6 is to be satisfied."
" briefly, the standard of proof upon the SSHD is not high, and he must have established his case to that level before there is anything which calls for an answer, and he cannot reach that stage by reliance upon AF's silence or refusal to answer questions; "
It is important to have in mind that, by contrast with derogating control orders, in cases of non-derogating control orders the question is not whether the SSHD has proved on the balance of probabilities that the controlee is or has been involved in terrorism-related activities but, simply, whether there are reasonable grounds for suspicion. This is because the PTA 2005 draws a clear distinction between deprivation of liberty on the one hand, for which derogation is required and interference with liberty not amounting to deprivation of liberty on the other hand, for which derogation is not required: see eg JJ per Lord Bingham at [12-19]. There has been no challenge to the statutory test of reasonable grounds for suspicion. This is not perhaps surprising, given that in Fox Campbell and Hartley v United Kingdom (1990) 13 EHRR 137 the ECtHR, when considering a similar test, said at  that:
"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."
i) At , after reviewing the speeches in Roberts, Lord Bingham said this:"I do not understand any of my noble and learned friends to have concluded that the requirements of procedural fairness under domestic law or under the Convention would be met if a person entitled to a fair hearing, in a situation where an adverse decision could have severe consequences, were denied such knowledge, in whatever form, of what was said against him as was necessary to enable him, with or without a special advocate, effectively to challenge or rebut the case against him."
ii) Lord Bingham had said a little earlier in  that Lord Woolf had accepted in Roberts at  that there was a "core, irreducible minimum entitlement" for a life prisoner to be able effectively to test and challenge before the Parole Board any evidence which decisively bore on the legality of his detention. At  Lord Bingham said that he understood the House to have accepted in Roberts that the concept of fairness imports a core, irreducible minimum of procedural protection. He also said at  that "a majority of my noble and learned friends are of my opinion on the principles relevant to this issue", by which he meant the fairness issue.
iii) It is clear from the speeches of Lord Woolf in Roberts and Lord Bingham in MB and AF that the core, irreducible minimum referred to was a reference to disclosure to the prisoner or controlee in person.
iv) At  Lord Brown said that he agreed with much of Lord Bingham's opinion. In particular he said that he agreed with Lord Bingham's "convincing analysis of the authorities at paras 25 to 34" and with his conclusion at  that the court's task in any given case is to decide whether the process as a whole has occasioned significant injustice to the suspect.
v) Baroness Hale referred at  to the basic requirement being to know the case against one and to have an opportunity of meeting it, although she was there stating the general rule in civil cases. As stated above, she then set out some limitations on that principle, both at common law and under the Convention. At  and  she discussed the likely approach of the ECtHR and the way she anticipated the process working in a case where not all the information is disclosed to the controlee. These are important paragraphs, to which we return below, but they do not in our opinion provide specific support for the proposition that there is an irreducible minimum which must be disclosed to the controlee. There may however be some support for the controlees' submissions in  of Baroness Hale's speech.
vi) In  she said this, after referring in  to the approach of Ouseley J (see below):"But there may still be a few cases in which, under the scheme set out in the 2005 Act and rules, this is not possible. The material which is crucial to demonstrating the reasonable basis of the Secretary of State's suspicions or fears cannot be disclosed in any way which will enable the controlled person to give such answer as he may have. What is to happen then?"
By 'this' Baroness Hale meant that it was not possible to reach a conclusion to the effect that the controlee had received a sufficient and substantial measure of protection. She then considered a number of specific provisions of the PTA 2005 and CPR rule 76 and concluded that, since the PTA and the rules prohibit an order for disclosure to the controlee, even where the judge considers that it is essential in order to give the controlee a fair hearing to order disclosure, he is on the face of it precluded from doing so. Baroness Hale then discussed what should happen then: see [69-73].
vii) At , Baroness Hale said that it was quite possible to provide the controlee with procedural protection even though "the whole evidential basis for the basic allegation, which has been explained to him, is not disclosed". The inference is that procedural protection would not be possible if no relevant information had been given to him.
viii) Some reliance is placed on the last paragraph of the speech of Lord Carswell at . However, for the reasons given below, it is our view that it does not support the controlees' submission.
"The Council of Europe Commissioner for Human Rights, in paragraph 21 of his report referred to above (para 16), and the Joint Committee on Human Rights, in paragraph 76 of its report referred to above (para 16), had difficulty in accepting that a hearing could be fair if an adverse decision could be based on material that the controlled person has no effective opportunity to challenge or rebut. This is not a case (like E) in which the order can be justified on the strength of the open material alone. Nor is it a case in which the thrust of the case against the controlled person has been effectively conveyed to him by way of summary, redacted documents or anonymised statements. It is a case in which, on the judge's assessment which the Court of Appeal did not displace, MB was confronted by a bare, unsubstantiated assertion which he could do no more than deny. I have difficulty in accepting that MB has enjoyed a substantial measure of procedural justice, or that the very essence of the right to a fair hearing has not been impaired."
"This would seem to me an even stronger case than MB's. If, as I understand the House to have accepted in Roberts, above, the concept of fairness imports a core, irreducible minimum of procedural protection, I have difficulty, on the judge's findings, in concluding that such protection has been afforded to AF. The right to a fair hearing is fundamental. In the absence of a derogation (where that is permissible) it must be protected. In this case, as in MB's, it seems to me that it was not."
"The best judge of whether the proceedings have afforded a sufficient and substantial measure of procedural protection is likely to be the judge who conducted the hearing. It is highly significant that, in AF Ouseley J concluded, at , para 167:
"I should add that looking at the nature of the issue, namely necessary restrictions on movement in an important interest, and at the way in which the Special Advocates were able to and did deal with the issues on the closed material, I do not regard the process as one in which AF has been without a substantial and sufficient measure of procedural protection."
That is a judgment with which any appeal court should be slow to interfere."
"It follows that I cannot share the view of Lord Hoffmann, that the use of special advocates will always comply with article 6; nor do I have the same difficulty as Lord Bingham, in accepting that the procedure could comply with article 6 in the two cases before us. It is quite possible for the court to provide the controlled person with a sufficient measure of procedural protection even though the whole evidential basis for the basic allegation, which has been explained to him, is not disclosed."
As we see it, Baroness Hale is there clearly saying that it is possible for a sufficient measure of protection to be afforded even where the whole case is in closed material and none of the case has even been gisted. It is common ground that was true of both MB and AF. So, unlike Lord Bingham, Baroness Hale did not have a difficulty in accepting, as a possibility, that the procedure could comply with article 6 even though the controlee was not even told the gist of the case against him. All depends upon the circumstances.
"In AF's case Ouseley J accepted at paragraph 146 of his judgment that "no, or at least no clear or significant, allegations of involvement in terrorist-based activity are disclosed by the open material, nor have any such allegations been gisted." Again, this finding has not been challenged. As in MB's case, it is difficult to see how this could constitute a fair hearing, unless the contribution of the special advocate was such as to make a significant difference. At paragraph 167 the judge referred to "the way in which the Special Advocates were able to and did deal with the issues on the closed material", but it is not spelled out in the judgment how significant their contribution was. The judge has not made a decision on the overall fairness of the hearing and its compliance with article 6, and in these circumstances I would allow the Secretary of State's appeal, reverse the judge's order quashing the control order and send the case back to the Administrative Court for reconsideration in the light of the opinions expressed by the House."
Lord Carswell does not say that, absent at least some gisting, the procedure must be unfair unless the special advocate succeeds in defeating the SSHD's case. If that were his view, since Ouseley J held that this was not a case in which AF has been without a substantial and sufficient measure of procedural protection, it would follow that the special advocate had failed to defeat the SSHD's case and, if the controlees' submission as to what the majority meant were correct, the issue would have been decided in favour of AF. Yet it was not but was remitted.
"which I understand to be shared by my noble and learned friends, Lord Carswell and Lord Brown of Eaton-under-Heywood."
There is no suggestion in either the speech of Lord Carswell or that of Lord Brown that either disagreed with the other or with Baroness Hale. In so far as there are express references to the opinions of others they are references of agreement: see per Lord Carswell at  and per Lord Brown at , although it is fair to say that in each of those cases the reference is to particular parts of the debate.
"With regard to AF's cross appeal on the article 6 issues, and MB's appeal against the Court of Appeal's ruling that section 3 of the 2005 Act is compatible with his right to a fair hearing under article 6 of the Convention, I agree with much of Lord Bingham's opinion. In particular I agree with his conclusions at paragraph 24 that non-derogating control order proceedings do not involve the determination of a criminal charge but that nevertheless those against whom such orders are proposed or made are entitled to such measure of procedural protection as is commensurate with the gravity of the potential consequences. I agree too with Lord Bingham's convincing analysis of the authorities at paras 25 to 34 and his conclusion at para 35 that the court's task in any given case is to decide whether the process as a whole has occasioned significant injustice to the person concerned (the suspect). I agree further that the special advocate procedure, highly likely though it is that it will in fact safeguard the suspect against significant injustice, cannot invariably be guaranteed to do so. There may perhaps be cases, wholly exceptional though they are likely to be, where, despite the best efforts of all concerned by way of redaction, anonymisation, and gisting, it will simply be impossible to indicate sufficient of the Secretary of State's case to enable the suspect to advance any effective challenge to it. Unless in these cases the judge can nevertheless feel quite sure that in any event no possible challenge could conceivably have succeeded (a difficult but not, I think, impossible conclusion to arrive at consider, for example, the judge's remarks in AF's own case, set out by my noble and learned friend Baroness Hale of Richmond at para 67 of her opinion), he would have to conclude that the making or, as the case may be, confirmation of an order would indeed involve significant injustice to the suspect. In short, the suspect in such a case would not have been accorded even "a substantial measure of procedural justice" (Chahal v United Kingdom (1996) 23 EHRR 413 at para 131) notwithstanding the use of the special advocate procedure; "the very essence of [his] right [to a fair hearing] [will have been] impaired" (Tinnelly & Sons Ltd and McElduff and others v United Kingdom (1998) 27 EHRR 249, para 72)."
"Unless in these cases the judge can nevertheless feel quite sure that in any event no possible challenge could conceivably have succeeded (a difficult but not, I think, impossible conclusion to arrive at consider, for example, the judge's remarks in AF's own case, set out by my noble and learned friend Baroness Hale of Richmond at para 67 of her opinion), he would have to conclude that the making or, as the case may be, confirmation of an order would indeed involve significant injustice to the suspect. In short, the suspect in such a case would not have been accorded even "a substantial measure of procedural justice" notwithstanding the use of the special advocate procedure; "the very essence of [his] right [to a fair hearing] [will have been] impaired" ."
In those sentences, including the reference to Baroness Hale's , where she quoted  of the judgment of Ouseley J (quoted above), Lord Brown made it clear that he regarded this question as part of the overall question to be answered and that he regarded it as part of the analysis carried out by Baroness Hale. Lord Brown certainly did not think that his analysis was different from that undertaken by the other members of the majority.
"However, it is necessary to go further than that, and ask whether the use of a special advocate can solve the problem where the Secretary of State wishes to withhold from the controlled person material upon which she wishes to rely in order to establish her case. We are all agreed that these are not criminal proceedings for the purpose of article 6; in ordinary civil proceedings it is appropriate to give weight to the interests of each side; nevertheless, the state is seeking to restrict the ordinary freedom of action which everyone ought to enjoy, in some cases seriously. It seems probable that Strasbourg would apply very similar principles to those applicable in criminal proceedings, but would be more inclined to hold that the measures taken by the judicial authorities had been sufficient to protect the interests of the controlled person. It would all depend upon the nature of the case; what steps had been taken to explain the detail of the allegations to the controlled person so that he could anticipate what the material in support might be; what steps had been taken to summarise the closed material in support without revealing names, dates or places; the nature and content of the material withheld; how effectively the special advocate had been able to challenge it on behalf of the controlled person; and what difference its disclosure might have made. All of these factors would be relevant to whether the controlled person had been "given a meaningful opportunity to contest the factual basis" for the order: see Hamdi v Rumsfeld 542 US 507 (2004), 509, col 2, O'Connor J.
"There is a very wide spectrum of cases in which closed material is relied on by the Secretary of State. At one extreme there may be cases in which the sole evidence adverse to the controlee is closed material, he cannot be told what the evidence is or even given its gist and the special advocate is not in a position to take sufficient instructions to mount an effective challenge to the adverse allegations. At the other end there may be cases where the probative effect of the closed material is very slight or merely corroborative of strong open material and there is no obstacle to presenting a defence. There is an infinite variety of possible cases in between. The balance between the open material and the closed material and the probative nature of each will vary from case to case. The special advocate may be able to discern with sufficient clarity how to deal with the closed material without obtaining direct instructions from the controlee. These are matters for the judge to weigh up and assess in the process of determining whether the controlee has had a fair trial. The assessment is, as Lord Woolf said in Roberts at paragraph 77, fact-specific. The judge who has seen both the open and the closed material and had the benefit of the contribution of the special advocate is in much the best position to make it. I do consider, however, that there is a fairly heavy burden on the controlee to establish that there has been a breach of article 6, for the legitimate public interest in withholding material on valid security grounds should be given due weight. The courts should not be too ready to hold that a disadvantage suffered by the controlee through the withholding of material constitutes a breach of article 6."
We do not see anything in that paragraph which is inconsistent with Lord Brown's approach. It stresses the balance to be struck between the competing interests.
"It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. "When something is obvious," they may say, "why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start." Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events."
Those are powerful views of great force. Moreover, although there are cases in which a judge admits material which is subsequently held to be inadmissible and it is held to have made no difference and, indeed, in a criminal context there are cases in which a verdict is held to be safe notwithstanding some material irregularity, in all of them the relevant party, at any rate at the appeal stage, knows what the case and evidence against him is and has had an opportunity of addressing the point and adducing relevant evidence.
i) The question is whether the hearing under section 3(10) infringes the controlee's rights under article 6. In this context the question is whether, taken as a whole, the hearing is fundamentally unfair in the sense that there is significant injustice to the controlee or, put another way, that he is not accorded a substantial measure of procedural justice or the very essence of his right to a fair hearing is impaired. More broadly, the question is whether the effect of the process is that the controlee is exposed to significant injustice. In what follows 'fair' and 'unfair' are used in this sense.
ii) All proper steps should be made to provide the controlee with as much information as possible, both in terms of allegation and evidence, if necessary by appropriate gisting.
iii) Where the full allegations and evidence are not provided for reasons of national security at the outset, the controlee must be provided with a special advocate or advocates. In such a case the following principles apply.
iv) There is no principle that a hearing will be unfair in the absence of open disclosure to the controlee of an irreducible minimum of allegation or evidence. Alternatively, if there is, the irreducible minimum can, depending on the circumstances, be met by disclosure of as little information as was provided in AF, which is very little indeed.
v) Whether a hearing will be unfair depends upon all the circumstances, including for example the nature of the case, what steps have been taken to explain the detail of the allegations to the controlled person so that he can anticipate what the material in support might be, what steps have been taken to summarise the closed material in support without revealing names, dates or places, the nature and content of the material withheld, how effectively the special advocate is able to challenge it on behalf of the controlled person and what difference its disclosure would or might make.
vi) In considering whether open disclosure to the controlee would have made a difference to the answer to the question whether there are reasonable grounds for suspicion that the controlee is or has been involved in terrorist related activity, the court must have fully in mind the problems for the controlee and the special advocates and take account of all the circumstances of the case, including the question what if any information was openly disclosed and how effective the special advocates were able to be. The correct approach to and the weight to be given to any particular factor will depend upon the particular circumstances.
vii) There are no rigid principles. What is fair is essentially a matter for the judge, with whose decision this court should very rarely interfere.
"rights of defence, in particular the right to be heard, and the right to effective judicial review of those rights, were patently not respected."
"342. In addition, with regard to a Community measure intended to give effect to a resolution adopted by the Security Council in connection with the fight against terrorism, overriding considerations to do with safety or the conduct of the international relations of the Community and of its Member States may militate against the communication of certain matters to the persons concerned and, therefore, against their being heard on those matters.
343. However, that does not mean, with regard to the principle of effective judicial protection, that restrictive measures such as those imposed by the contested regulation escape all review by the Community judicature once it has been claimed that the act laying them down concerns national security and terrorism.
344. In such a case, it is none the less the task of the Community judicature to apply, in the course of the judicial review it carries out, techniques which accommodate, on the one hand, legitimate security concerns about the nature and sources of information taken into account in the adoption of the act concerned and, on the other, the need to accord the individual a sufficient measure of procedural justice (see, to that effect, the judgment of the European Court of Human Rights in Chahal v. United Kingdom of 15 November 1996, Reports of Judgments and Decisions 1996-V, § 131)."
"I do not think that we can be confident that Strasbourg would hold that every control order hearing in which the special advocate procedure had been used, as contemplated by the 2005 Act and Part 76 of the Civil Procedure Rules, would be sufficient to comply with article 6. However, with strenuous efforts from all, difficult and time consuming though it will be, it should usually be possible to accord the controlled person "a substantial measure of procedural justice". Everyone involved will have to do their best to ensure that the "principles of judicial inquiry" are complied with to the fullest extent possible. The Secretary of State must give as full as possible an explanation of why she considers that the grounds in section 2(1) are made out. The fuller the explanation given, the fuller the instructions that the special advocates will be able to take from the client before they see the closed material. Both judge and special advocates will have to probe the claim that the closed material should remain closed with great care and considerable scepticism. There is ample evidence from elsewhere of a tendency to over-claim the need for secrecy in terrorism cases: see Serrin Turner and Stephen J Schulhofer, The Secrecy Problem in Terrorism Trials, 2005, Brennan Centre for Justice at NYU School of Law. Both judge and special advocates will have stringently to test the material which remains closed. All must be alive to the possibility that material could be redacted or gisted in such a way as to enable the special advocates to seek the client's instructions upon it. All must be alive to the possibility that the special advocates be given leave to ask specific and carefully tailored questions of the client. Although not expressly provided for in CPR r 76.24, the special advocate should be able to call or have called witnesses to rebut the closed material. The nature of the case may be such that the client does not need to know all the details of the evidence in order to make an effective challenge."
"In my view, therefore, paragraph 4(3)(d) of the Schedule to the 2005 Act, should be read and given effect "except where to do so would be incompatible with the right of the controlled person to a fair trial". Paragraph 4(2)(a) and rule 76.29(8) would have to be read in the same way. This would then bring into play rule 76.29(7), made under paragraph 4(4) of the Schedule. Where the court does not give the Secretary of State permission to withhold closed material, she has a choice. She may decide that, after all, it can safely be disclosed (experience elsewhere in the world has been that, if pushed, the authorities discover that more can be disclosed than they first thought possible). But she may decide that it must still be withheld. She cannot then be required to serve it. But if the court considers that the material might be of assistance to the controlled person in relation to a matter under consideration, it may direct that the matter be withdrawn from consideration by the court. In any other case, it may direct that the Secretary of State cannot rely upon the material. If the Secretary of State cannot rely upon it, and it is indeed crucial to the decision, then the decision will be flawed and the order will have to be quashed."
The principles adopted by Silber J in AE
The principles adopted by Mitting J in AN and by Stanley Burnton J in AF
"i) AN has not had disclosed to him a substantial part of the grounds for suspecting that he has been involved in terrorism related activity and that, without further disclosure, he personally will not be in a position to meet those aspects of her case.
ii) Disclosure of that material would be contrary to the public interest for one or more of the reasons identified in CPR Part 76.1(4)."
"AF was a case in which the open material did not disclose to him grounds for reasonable suspicion. The only allegation made openly against him was that he had links to islamist extremists in Manchester, some of whom were affiliated to the LIFG: paragraph 42. It seems, therefore, that Lady Hale would, in an appropriate case, accept that reasonable grounds for suspicion formed on the basis of "better and more reliable sources of intelligence" could be formed and upheld without telling the controlled person more than the barest outline of the nature of the activities of which he was suspected. If that is the right test, the Secretary of State's third open statement satisfies it."
However, as we read his judgment, Mitting J did not conclude that that was the right test. At the end of  he said that he was satisfied that Mr Andrew Nicol QC, AN's special advocate, had conducted a skilful and rigorous examination of the closed case but did so without AN's instructions on the undisclosed material.
"The conclusion which I draw from the four speeches of the majority in MB is that unless, at a minimum, the special advocates are able to challenge the Secretary of State's grounds for suspicion on the basis of instructions from the controlled person which directly address their essential features, the controlled person will not receive the fair hearing to which he is entitled except, perhaps, in those cases in which he has no conceivable answer to them. In practice, this means that he must be told their gist. This means that, if he chooses to do so, he can give and call evidence about the issues himself."
"AN does not know the gist of significant grounds of suspicion raised against him. I have already determined, in a closed Judgment, that the material which I have considered is capable of founding reasonable grounds to suspect that he has been involved in terrorism related activity. I have identified in a closed disclosure judgment what must be disclosed to him to fulfil his right to a fair hearing in accordance with my understanding of the speeches of the majority in MB. I do so with disquiet, because the factors which require further disclosure in this case are likely to arise in many others, with the result that the non-derogating control order procedure may be rendered nugatory in a significant number of cases in which the grounds for suspecting that a controlled person has been involved in terrorism related activities may otherwise be adjudged reasonable."
Some of the judges with great experience in this field share this view and there is a concern that the House of Lords did not look at the closed material before giving guidance for the future. Mitting J's view is inconsistent with the expectation of the majority that on their approach article 6 will only be infringed in a minority of cases, perhaps a small minority: see in particular per Baroness Hale at ,  and  and per Lord Brown at  referred to at  above. However, assuming (as we think we must) that the members of the appellate committee were alive both to the way the system works in practice and to the effects of the majority opinions, the effects spoken to by Mitting J suggest that he has interpreted the majority opinions in a less favourable way to the SSHD than the majority intended.
The application of the article 6 principles in each case
Deprivation of liberty
"Just so that there is no mistake about it, my view is that, taking account of the conditions and circumstances in all these various control order cases, provided the "core element of confinement" does not exceed sixteen hours a day, it is "insufficiently stringent" as a matter of law to effect a deprivation of liberty. Beyond sixteen hours, however, liberty is lost."
"Most of my work in Leeds was to detain people under Regulation 18B. We detained people, without trial, on suspicion that they were a danger. The military authorities used to receive or collect information about any person who was suspected. If it was proper for investigation, I used to see the person and ask him questions so as to judge for myself if the suspicion was justified. He could not be represented by lawyers. This power was discretionary. It could not be questioned in the Courts. It was so held by the House in Liversidge v Anderson. But Lord Atkin gave a famous dissent after my own heart in which he said: "In this country, amid the clash of arms, the laws are not silent ".' (The Family Story, p.130)