QUEEN'S BENCH DIVISION
IN THE MATTER OF PROCEEDINGS UNDER THE
PREVENTION OF TERRORISM ACT 2005
Strand, London, WC2A 2LL
B e f o r e :
| Secretary of State for the Home Department
|- and -
Owen Davies QC and Ali Naseem Bajwa (instructed by Chambers of Bradford) for the Respondent in open session only
Michael Supperstone QC (instructed by Special Advocates' Support Unit) as the Special Advocate
Hearing dates: 12-14 December 2007
Crown Copyright ©
MR. JUSTICE SILBER:
II. The Control Orders and the History of Proceedings.
III. The Statutory Regime.
"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."
"(a) I have reasonable grounds for suspecting that you are or you have been involved in terrorism- related activity; and
(b) I consider it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to impose certain obligations upon you in order to prevent or restrict your further involvement in terrorism-related activity".
"I believe that you are involved in providing support for the Jihadist insurgency in Iraq, and in radicalising individuals in the UK. I also believe you have received terrorist training and have taken part in terrorist activities".
III. The Special Advocate regime.
IV. The decision in MB.
(a) The correct approach to the special advocate procedure (i.e. of allowing the special advocate but not the controlled person to be informed of the nature of the case of the Secretary of State and to have sight of all the evidence as well as to challenge the Secretary of State's evidence in a closed session, which the controlled person is not permitted to attend) was that advocated by the Strasbourg Court on various occasions that:
"…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" ... Jasper v United Kingdom (2000) 30 EHRR 441  and Fitt v United Kingdom (2000) 30 EHRR 480  quoted by Lord Bingham of Cornhill  and the identical passage in Botmeh and Alami v United Kingdom ( Application no 15187/03-unreported 7 June 2007) quoted by Baroness Hale of Richmond ) and in Rowe v United Kingdom (2000) 30 EHRR 1  quoted by Lord Carswell )
(b) A judge is a public authority for the purposes of the Human Rights Act 1998 and as such is under a duty set out in section 6 (1), (2) and (3) of that Act to act compatibly with convention rights unless precluded to do so by primary legislation which cannot be read in any other way;
(c) It was therefore necessary to read the provisions which authorise the withholding of material form the controlled person as subject to the proviso "except where to do so would be incompatible with the right of the controlled person to a fair trial" (per Baroness Hale  and similarly by (i) Lord Carswell , (ii) Lord Brown of Eaton-under- Heywood  and (iii) with reluctance by Lord Bingham );
(d) the requirements of procedural fairness under domestic law or under article 6 would not be met if the controlled person was 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 challenge or rebut the case against him" (per Lord Bingham  with whom Lord Brown agreed );
(e) while previously it had been thought that the Secretary of State's application to withhold closed evidence had to be resolved by asking a simple question – namely whether the non-disclosure was precluded by the public interest- there was a now a need to resolve a further question which was whether the non-disclosure would be incompatible with the right of the controlled person to a fair trial. It was accepted that material could be withheld on grounds of public interest but such a claim had to be scrutinised with great care as I will explain in paragraph 20 below;
(f) the appropriate time for conducting this inquiry is at the end of the section 3 (10) hearing which has now taken place (see Baroness Hale );
(g) if the court were to conclude that it cannot accede to the Secretary of State's application to withhold closed material because to do so would be incompatible with the controlled person's article 6 rights, the Secretary of State would have the choice of either disclosing it or not relying on it (see Baroness Hale ).
"Both the judge and the special advocate will have to probe the claim that the closed material should remain closed with great care and considerable scepticism [as] there is ample evidence from elsewhere of a tendency to over claim the need for secrecy in terrorism cases.. ..Both judge and special advocates will have stringently to test the material which remains closed" ...per Baroness Hale )
(a) Baroness Hale said of the approach that the court should carry out its duties to exclude the supply of material to the controlled person "except where to do so would be incompatible with the right of the controlled person to a fair trial"  that:
"73… this gives the greatest possible incentive to all parties in the case, and to the judge, to conduct the proceedings in such a way as to afford a sufficient and substantial measure of procedural injustice". (emphasis in the original)
She also accepted (with my emphasis added) that:
"there may still be a few cases in which under the scheme set out in the 2005 Act and Rules,[ a substantial and sufficient measure of procedural protection] is not possible"
Baroness Hale had explained earlier in paragraph 66 that it was not possible to be confident that the Strasbourg Court would hold that in every control order hearing in which the Special Advocate procedure had been adopted, the article 6 rights of the controlled person had been complied with.
(b) Lord Carswell explained (again with my emphasis added) that:
"85. There is a fairly 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 CJ said in Roberts  2 AC 738, 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". and
c) Lord Brown said (again with my emphasis added) that:
"90 …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."
V. Proceedings on the present application after MB.
VI. The approach to be adopted to determining whether the Article 6 rights of AE have been safeguarded.
a) if the evidence or matters which have not been disclosed relates to core matters concerning the issue defined at the first stage rather background matters and the closer the evidence or material is to the core of the Secretary of State's case, the more careful the inquiry has to be to ensure that the article 6 rights of the controlled person have been protected;
b)whether the controlled person has had any notice of the closed material or closed evidence relied on by the Secretary of State because if he has not, this would mean the obligation for the court and the Special Advocate to consider whether the article 6 rights of the controlled person have been infringed, would be increased substantially;
c)whether the closed material or closed evidence relied on by the Secretary of State is sufficiently clearly defined as to permit the controlled person not merely to deny the claim but also to adduce evidence to undermine this material or evidence. If it is, then special consideration will have to be given to the issue of whether the Secretary of State should be allowed to rely on this material and evidence especially if it relates to a core allegation rather than background matters. By the same token, if the Secretary of State's closed material or closed evidence is too vague to permit the controlled person to call evidence in rebuttal or to take any step other than to deny the material, then it is less likely that the article 6 rights of the controlled person would be infringed if he is unaware of these matters. Of course if the material is vague, it would have less cogency; and
d) how the controlled person has in fact been able to answer the evidence and material adduced by the Secretary of State. In some cases he might have been able not merely to deny the allegation and also to adduce evidence in rebuttal even though he does not know the full nature of the closed allegation.
(a) "[AE] has expressed extreme views".
(b) "[AE] is a well known figure in the Iraqi Kurd community. He is regarded as a spiritual adviser. He is considered to be knowledgeable about spiritual matters. That he has been and may still be regarded as a spiritual counsellor is concerning given his extremist views";
(c) "[AE] has been in contact with AI associated Iraqi Kurds in the United Kingdom".
(d) "[AE] has delivered lectures at a mosque in Peterborough. The Security Service assesses that these lectures were of an extremist nature";
(e) "Prior to the imposition of the control order [AE] was involved in document and identity fraud on behalf of his extremist contacts. He acted as a middle man, obtaining document on behalf of his associates. He has also been involved in fraud for his own personal advantage, which includes the claim of double benefits" These assertions have to be considered in the light of an e-mail from AE's solicitors dated 10 June 2007 which was adduced by AE's counsel and which shows serious dishonesty on AE's part as he was, for example, was receiving housing benefits while receiving rent from a friend;
(f) "[AE]'s home address was searched in August 2005. The interrogation of the hard drive of the computer recovered from the search showed that the user of the computer had visited websites selling toy remote-controlled helicopters and cars. The search also recovered a large remote-controlled car. The computer interrogation has also showed that the user had examined the possibility of purchasing low light pinhole cameras. A variety of paperwork in his name was found in the search.";
;(g) "the Security Service assesses that [AE] was a member of the Islamic Movement of Kurdistan";
(h) AE is assessed by the Security Service to have "both extremist and criminal associates in Peterborough" and he "has been involved in radicalising Muslims in Peterborough and he may remain in contact with those associates".
(i) the assessment of the Security Service is that AE "is a leading figure in Islamist extremist circles in the Peterborough area"; and
(j) the Secretary of State does not accept that Taha Muhammed is AE's genuine identity and assesses that "this is no more than an alias".
VII. The case for AE.
"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".
43. A second factor which fortifies my belief is that my present provisional view is that there is clear evidence that AE has acted in a fraudulent and dishonest manner as I have explained in paragraph 32(e) above with the result that his credibility in respect of evidence on any closed material would have been undermined by his fraudulent activities. In consequence of this present provisional view there is little prospect that if the closed material had been disclosed to him, AE would have been able by his own evidence to refute the material which remains closed. I should add that obviously my present provisional view on AE's fraudulent and dishonest behavior will have to be reconsidered in the light of any further submissions and evidence.