ON APPEAL FROM THE QUEEN'S BENCH DIVISION, ADMIN COURT
MR JUSTICE MITTING
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CARNWATH
LADY JUSTICE HALLETT
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Tim Eicke QC and Ms Kate Grange (instructed by Treasury Solicitors) for the Respondent
Ms Helen Mountfield QC and Mr Justin Cole, Special Advocates (instructed by the Special Advocates Support Office)
Hearing date : 16 May 2011
Crown Copyright ©
Lord Justice Maurice Kay :
1. Procedural fairness
"… 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."
This was the legal principle which he proceeded to apply.
"… I am satisfied that the essence of the Grand Chamber's decision lies in para 220 and, in particular, in the last sentence of that paragraph. This establishes that the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations. Where, however, the open material consists of purely general assertions and the case against the controlee is based solely or to a decisive degree on closed materials, the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials would be."
"(1) AH collected and organised the remittance of funds for the insurgency in Iraq.
(2) AH used anti-surveillance techniques such as the use of telephone kiosks to make sensitive calls and erratic driving to escape surveillance.
(3) AH is an associate of BC, an Islamist extremist based in the United Kingdom.
(4) AH facilitated the travel of Mukhtar Ibrahim Said, Rizwan Majid and Shakeel Ismail to Heathrow, for onward travel to Pakistan, on 11 December 2004 when, to his knowledge or belief, their purpose was terrorism-related."
"On the remaining three grounds, I am satisfied that their essential features have been disclosed to AH and that he has had, and has taken, the opportunity to attempt to rebut them in detail. He has done so in his witness statement … and in evidence given at the hearing. In one respect (the use of telephone kiosks as a security measure on a particular occasions), the evidence which he has given has permitted the Special Advocates to demonstrate that the Security Services' conclusion was erroneous, so that the Secretary of State no longer relies on that as a ground for suspicion. He has had disclosed to him the surveillance logs for 22/23 October 2004 and 11/12 December 2004. That has prompted him to give a detailed account of his activities on each night … He repeated this detailed account in his evidence at the hearing. The fact that he does not know the contents of the closed material has not in any way inhibited him from doing so. He has been told the essential features of the Secretary of State's case about his relationship with BC and the nature and purpose of his activities. He has been able to give a detailed account about it … and has repeated it in evidence. Again, the fact that he does not know the contents of the closed material on this issue has not in any way inhibited him from advancing his case about it. The essential features of the trip to Heathrow and its aftermath have been disclosed to him, in the form of surveillance logs. The purpose of the three men travelling to Pakistan and the grounds for suspecting that it was for terrorism-related activity have been disclosed to him in the Metropolitan Police summaries of their interviews of the three men and their record of what they had with them. AH has been able to give a detailed account of the arrangement of the trip to Heathrow, the trip itself and its aftermath … , repeated and as to aftermath, supplemented, in his evidence at the hearing (which itself repeated the evidence which he had given at his criminal trials). The fact that he did not know the contents of the closed material has not in any way inhibited him from advancing his account. Further, in relation to all three issues, the Special Advocates have been able to probe and challenge the Security Services' assessments and the open and closed material which supports them on the basis of AH's detailed account."
"A controlled person, faced with closed material, who gives detailed evidence in support of his case, inevitably runs the risk of contradicting closed material; and, in doing so, may expose himself to a finding that he has suppressed the truth or lied. That risk is inherent in the proceedings."
"I have anxiously asked myself whether there may be any other explanation for suppression and lying. I am satisfied that there is not."
2. The terms of the control order
"Until 17 April 2008, the control order imposed the following obligations on AH: the wearing of a tag; a 14 hour curfew between 6pm and 8am in a flat in Norwich, to which he was taken on 29 August 2006; daily reporting to the monitoring company; a prohibition on association or communication with any person notified to him by the Home Office as being subject to a control order (no such person was notified and this provision was deleted on 27 July 2007); a requirement to permit entry to police officers etc to search his residence and remove any item; a prohibition on communications equipment other than a landline telephone; the requirement to attend only one mosque of his choosing (subsequently relaxed); a geographical boundary comprising the centre and inner suburbs of Norwich; a requirement to notify the Home Office of any intended departure from the United Kingdom and a prohibition from entering any port, without prior Home Office agreement; a prohibition on maintaining more than one bank account or on transferring money, documents or goods overseas without Home Office consent; the surrender of his passport; and a requirement to provide details of any employment to the Home Office within seven days of commencement. On 17 April 2008, the curfew was reduced to 10 hours and the geographical restriction confined to the area bounded by the M25. In all other respects the obligations remain the same."
The question is whether the imposed terms constituted a deprivation of liberty within the meaning of Article 5 of the ECHR.
"(i) There is no 'bright line' separating deprivation of liberty from restriction on liberty …
(ii) The test is objective: the task of the court is to assess the impact of the measures 'on a person in the situation of the person subject to them'
(iii) Many relevant factors must be taken into account, but the starting point or 'core element' is the length of the curfew …
(iv) Social isolation is a significant factor, especially if it approaches solitary confinement during curfew periods …"
"If an Article 8 restriction is a relevant consideration in determining whether a control order breaches Article 5, then by definition it is capable of being a decisive factor – capable of tipping the balance. The weight to be given to a relevant consideration is, of course, always a question of fact and entirely a matter for the decision-maker – subject only to a challenge for irrationality …"
"I nevertheless remain of the view that for a control order with a 16 hour curfew (a fortiori one with a 14 hour curfew) to be struck down as involving a deprivation of liberty, the other conditions imposed would have to be unusually destructive of the life the controlee might otherwise have been living."
"They have developed 'special expertise and experience, not generally shared by members of the appellate courts' and 'are also much better place to develop consistent practice for dealing with orders of this kind and to provide continuing supervision of their making variation and implementation'."
The internal quotations referred back to the judgment of Carnwath LJ in the Court of Appeal:  EWCA Civ 731.
Lord Justice Carnwath:
Lady Justice Hallett: