England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF PROCEEDINGS UNDER THE
PREVENTION OF TERRORISM ACT 2005

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/02/2008

MR. JUSTICE SILBER:

I. Introduction.

1. This open judgment relates to the issue of whether the procedures adopted hitherto in the hearings which started in June 2007 and ended in December 2007 concerning the control orders imposed by the Secretary of State for the Home Department ("the Secretary of State") on the respondent ("AE") comply with article 6 of the European Convention on Human Rights ("the ECHR"). The Secretary of State contends that there has been compliance while AE disagrees. Both sides seek to derive support from the recent decision of the House of Lords in the case of Secretary of State for the Home Department v MB and Secretary of State for the Home Department v AF [2007 UKHL 46; [2007] 3 WLR 681 to which I will refer as "MB". There is also a closed judgment in this case which deals with the closed material as well as the submissions and the evidence in closed hearings. The reasons for the need for the closed judgment are first that AE and his legal representatives were not served with much of the material relied on by the Secretary of State and second that they were not present at those hearings in which the Special Advocate has represented the interest of AE in the way in which I shall explain later in this judgment.
2. Article 6 of the ECHR, which has the heading "Right to a fair trial", deals with both criminal and civil proceedings and in MB, it was decided that control order proceedings do not constitute a criminal charge for the purpose of article 6. Special Advocates have been instructed and have played a significant role on these applications as they have been supplied with all the allegations and the evidence relied upon by the Secretary of State. The issue to be determined is whether in the light of the use of the special advocate procedure, AE has had a fair trial even though neither he nor his legal representatives have seen much of the evidence adduced against AE nor have they been informed of all the allegations made by the Secretary of State to justify the granting of the control order. In consequence, AE and his legal representatives have been unable to question the witnesses whose evidence is relied upon by the Secretary of State in respect of the closed material or to adduce evidence in rebuttal of this evidence. The Secretary of State contends that AE's article 6 rights have been safeguarded by the use of the Special Advocate and I will have to consider whether AE's article 6 rights have been safeguarded in what has occurred up till the present time in those proceedings. I will have to reconsider this issue when the present application is concluded next month. The case for AE is that his article 6 rights have been infringed by the failure first to provide him with the closed material, second to permit him to challenge this material and third to adduce evidence in support of his case. In other words, the case for AE is that the Special Advocate procedure adopted in this case does not adequately safeguard his article 6 rights.

II. The Control Orders and the History of Proceedings.

3. On 15 May 2006, the Secretary of State successfully applied to Collins J for a control order against AE pursuant to the provisions of sections 2 and 3 (1) (a) of the Prevention of Terrorism Act 2005 ("the 2005 Act"). AE, who was born in 1976, is of Iraqi origin with an Arab father and a Kurdish mother, has right to remain in the United Kingdom.
4. This first control order, which was served on AE on 18 May 2006, contained obligations on AE which were very similar to those included in other control orders and which were held on 1 August 2006 by the Court of Appeal to constitute a deprivation of liberty contrary to Article 5 of the ECHR; they therefore had to be quashed (Secretary of State for the Home Department v JJ and others [2006] 3 WLR 866).
5. The Secretary of State then revoked the first control order and made the present control order ("the control order") against AE on 11 September 2006 after permission to make it had been granted by Lloyd Jones J. It is only that order which was the subject of the initial application before me when I initially heard a review application in June 2007 when both closed and open sessions were held culminating in closing submissions. At this stage, the Special Advocate had not challenged the application that the material, which the Secretary of State wished to remain closed, should remain closed. Counsel for AE and the Secretary of State as well as the Special Advocates all agreed during the June 2007 hearings that that I should not give judgment until after the House of Lords had given their reasons and their decision in three conjoined appeals which concerned not only MB but also the cases of Secretary of State for the Home Department v JJ and others ([2007] UKHL 45; [2007] 1 WLR 642) and Secretary of State for the Home Department v E and another ( [2007] UKHL 47; [2007] 3 WLR 720). This was a sensible approach, which has been justified by the reasoning of the Appellate Committee which required a different approach to these applications from that which had previously been followed. I therefore adjourned the hearing of this issue for further submissions and if necessary for further evidence until after the Appellate Committee gave its reasons in all three cases, which it duly did on 31 October 2007.

III. The Statutory Regime.

6. In order to understand this application I must explain the statutory regime contained in the 2005 Act, which distinguishes between "derogating" and "non-derogating" control orders. The former category imposes obligations which are incompatible with the right to liberty under article 5 of the Convention. They may only be made if certain specified conditions are satisfied but none are applicable to the control orders with which this judgment is concerned. Non-derogating orders, which have been made against AE, are made by the Secretary of State with the permission of the court (except in cases of urgency) and they are subject to the supervision by the court pursuant to section 3 of the 2005 Act.
7. The criteria, which have to be satisfied before a non-derogating control order may be made by the Secretary of State are set out in section 2(1) of the 2005 Act, which provides that:

"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."

8. The basis of the present order and the previous control orders was that the Secretary of State considered that:

"(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".

9. The Secretary of State said the basis of his decision to issue both the control orders was explained to AE in this way:

"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".

10. Further material has been served on AE but he still does not know much of the closed material. The issues which have to be resolved on the substantive application are whether it is possible to impugn the decisions of the Secretary of State first that he had reasonable grounds for suspecting that AE was involved in terrorist–related activity and second that the terms of the control orders with the restrictions and obligations which it imposed were necessary. At this stage, I am only concerned with whether AE's article 6 rights have been respected on the first issue as there has still to be further submissions and evidence relating to the second issue in the light of the reasoning and decisions of the Appellate Committee in the conjoined appeals. The approach to be adopted on the substantive hearing is to apply the principles of judicial review (section 3(11) of the 2005 Act). It is not in dispute that I have to consider the control order "having regard to the state of affairs that exists at the time that the court reaches its decision" (see Secretary of State v MB [2007] QB 415 [40] per Lord Phillips of Worth Matravers CJ).

III. The Special Advocate regime.

11. In order to justify the control orders, the Secretary of State has relied on material which has not been supplied to AE or his legal advisers. Instead, the special advocate procedure has been invoked and it is necessary to explain the statutory basis of this procedure. A rule-making power applicable to both derogating and non-derogating control orders is set out in the Schedule to the 2005 Act, which requires the rule-making authority 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 (Paragraph 2 (b)).Power is given to the rule-making authority to make provisions first to conduct proceedings in the absence of any party , including a relevant party to the proceedings and his legal representative (Paragraph 4(2)(b)) and second for the appointment of a person to represent a relevant party (Paragraphs 4 (2) (c) and 7).
12. The Secretary of State must be required to disclose all relevant material (Paragraph 4(3) (a)) but he or she may apply to the court for permission not to do so (Paragraph 4 (3) (b)). Such an application must be heard in the absence of every relevant person and his representative (Paragraph 4 (3) (c)). The court must then give permission for material not to be disclosed when disclosure would be contrary to the public interest (Paragraph 4 (3) (d)). The rules provided that the court must consider requiring the Secretary of State to provide the relevant party and his legal representative with a summary of the material, which has been withheld (Paragraph 4(3) (e)), but the court must ensure that such summary does not contain material or other information the disclosure of which would be contrary to the public interest (Paragraph 4 (3) (f)). If the Secretary of State chooses not to disclose or summarize material which he or she is required to disclose or summarize, the court may give directions withdrawing from its consideration the matters to which the material is relevant or otherwise ensure that the material is not relied on (Paragraph 4(4)).
13. The procedural scheme authorized by the Schedule to the 2005 Act is given effect to by CPR Part 76. The overriding objectives of the Civil Procedure Rules are modified by rule 76.2 which requires the court not to disclose information which is contrary to the public interest. Rule 76.1(4) provides that disclosure is 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. Rule 76.22 also provide that the exclusion of a relevant person or his legal representative from hearing to secure that information is not disclosed if that would be contrary to the public interest. Rules 76.23 and 76.24 provide for the appointment of a special advocate whose function is to represent the interests of a relevant party but who may only communicate with the relevant party before the closed material is served on him except with the permission of the court (rules 76.25 and 76.28(2)). In this case, there were, I was told, communications in the form of a meeting between ,on the one hand, junior counsel then acting as one of the Special Advocates and on the other hand AE before the closed material was served on that Special Advocate but I do not know what was discussed.
14. Rule 76.26 provides that the ordinary rules concerning evidence and the inspection of documents are not applicable. It is provided that evidence may be given orally or in writing while the court may admit evidence which would not be admissible in a court of law. Rule 76.26(5) permits every party to adduce evidence and to cross-examine witnesses during any part of a hearing from which he and his legal representatives are not excluded.

IV. The decision in MB.

15. In MB, the House of Lords considered the compatibility of the procedure at control order proceedings provided for by the Schedule to the PTA and CPR part 76 with article 6 of the ECHR. It was decided unanimously that control order proceedings were not criminal proceedings but for the purposes of article 6 were to be regarded as civil proceedings.
16. The House of Lords in MB held by a majority with Lord Hoffman dissenting that the procedure of involving special advocates and having closed hearings would not in every case be compatible with Article 6. The majority did not express themselves in identical terms as to how the court should approach the task of ensuring compliance with article 6 but it seem clear that :

(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 [52] and Fitt v United Kingdom (2000) 30 EHRR 480 [45] quoted by Lord Bingham of Cornhill [32] 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 [62]) and in Rowe v United Kingdom (2000) 30 EHRR 1 [61] quoted by Lord Carswell [80])

(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 [72] and similarly by (i) Lord Carswell [84], (ii) Lord Brown of Eaton-under- Heywood [92] and (iii) with reluctance by Lord Bingham [44]);

(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 [34] with whom Lord Brown agreed [90]);

(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 [67]);

(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 [72]).

17. It is now appropriate to mention other principles laid down in MB. First, the starting point for considering whether the article 6 rights of a controlled person have been complied with is that the use of the special advocate procedure places the controlled person at a " grave disadvantage" ( per Lord Bingham [35] and Lord Brown[90]). A similar view was expressed by Lord Carswell [82] who spoke of the "the grave extent of the disadvantage".
18. Second, Lord Bingham explained that "the task of the courts 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" ([35] and per Lord Brown [90]). My task is to ascertain if there has been not merely injustice but "significant injustice" as a result of the proceedings after "looking at the process as a whole".
19. Third, it is accepted that there may be in Baroness Hale's words in MB "a sufficient measure of procedural protection [for the controlled person] even though the whole evidential basis for the basic allegation [relied on for justifying the control order] which has been explained to him, have not been disclosed" ([74]). There would be sufficient procedural protection in the words of the judgment of the Strasbourg court judgments which I have quoted in paragraph 16 (a) above, if "the limitation on [those] rights [has been] sufficiently safeguarded by the procedures followed by the judicial authorities".
20. Fourth, the course to be adopted in order to ascertain if article 6 has been complied with is that:

"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 [66])

21. Finally, the majority of the Appellate Committee in MB concluded that it would only be in few cases that the court would find it necessary to put the Secretary of State to her election by refusing permission to withhold evidence from the controlled person on article 6 grounds where it would otherwise satisfy the public interest test as:

(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" [72] 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"[68]

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 [2005] 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.

22. After the House of Lords gave their opinions in MB and in the light of the stance then taken by the Secretary of State, counsel for AE and the Special Advocate were invited to state what further disclosure should be given by the Secretary of State even though there was no onus on AE. Counsel for AE put forward a skeleton argument which drew attention to the unfairness to AE of the Special Advocate regime. Mr. Owen Davies QC, counsel for AE, submitted that AE had been unable to participate in the proceedings and that meant that his article 6 rights had not been safeguarded and I will return to consider that submission in paragraphs 35ff below.
23. In addition, in response to the request made of the Special Advocate, Mr. Michael Supperstone QC duly produced a lengthy list of matters in a closed document which he contended ought to be disclosed to AE by the Secretary of State ("the Special Advocate's list") and they amounted essentially to the basis of the case for the Secretary of State for justifying the control order, which had not been previously disclosed in the open statement to AE.
24. Counsel for the Secretary of State then submitted a skeleton argument in response together with a list of further matters (" the December disclosure") which were to be (and which have now been) disclosed to AE and they are set out in paragraph 32 below. Counsel for AE produced a helpful list of further matters which it was submitted should be disclosed to AE over and above the December disclosure.
25. At the outset of the closed hearing dealing with the article 6 issue, Mr. Michael Supperstone QC, who acted as the Special Advocate, stated that he did not dispute that the article 6 rights of AE had been complied with by the December disclosure in respect of certain of the matters which he had contended in the Special Advocate's list should be disclosed to AE. As I also had to be satisfied that there had been compliance on those matters, I suggested that it would be helpful if Miss Lisa Giovannetti, counsel for the Secretary of State, should take me to the transcripts of the evidence at the closed hearings which had taken place between 12 and 14 June 2007 to explain what the evidence was in relation to those matters and why she contended that the article 6 rights of AE had been com plied with. She duly produced a very helpful document which listed much of the relevant parts of the evidence and especially the cross-examination of the witness O by the Special Advocate in the closed session.
26. Before dealing with the specific matters which it had been said by the Special Advocate in the Special Advocate's list that the Secretary of State should disclose to AE, it is necessary to record that the evidence at the substantive hearing, which took place during the course of three days between 12 and 14 June 2007 consisted in the main of open and at a much greater length closed evidence given by a member of the security service, witness O, who relied on security service submissions in support of the control order together with a substantial amount of supporting documentary evidence. Counsel for AE had prepared a long list of matters which they wished the Special Advocates to raise. Of course it must not be forgotten that the Special Advocates could have sought leave to ask specific questions of AE if they needed instructions on certain issues but they did not consider it necessary to avail themselves of this important right.
27. Witness O was cross-examined extensively in respect of many of the matters. My clear impression of the cross-examination at the time and which has been fortified by subsequent reading of the transcripts of the cross-examination, was that Mr. Supperstone who was then assisted by Mr. De La Mare, had carried out a carefully prepared comprehensive and very penetrating cross-examination of witness O. They had gone to great lengths to analyze the evidence relied on by the Secretary of State and to use in cross-examination material which might undermine the evidence of witness O or further AE's case. This is a significant factor in determining whether AE's article rights have been protected. I should add that in the light of the need for the closed evidence to be closely scrutinized, I took a more inquisitorial and more interventionist role than I would have adopted in conventional civil proceedings as I was aware of the need for AE's interests to be properly safeguarded.

VI. The approach to be adopted to determining whether the Article 6 rights of AE have been safeguarded.

28. The opinions of the Appellate Committee in MB show that it is necessary to ascertain the issue in relation to which the article 6 proceedings are focused and that means the matters which the Secretary of State has to prove on this application. In this case the relevant issue is whether the Secretary of State can show that she "has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity" as is required by section 2(1) (a) of the 2005 Act.
29. Then at the second stage, in respect of all the evidence or matters which have not been disclosed to the controlled person, it is necessary for both the court and the Special Advocate to look at the material withheld. In this connection, it usually might be helpful to determine:

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.

30. The third stage, which is the crucial part and must be considered in every case, is to consider whether (with my emphasis added) "looking the process as a whole, whether a procedure has been used which involved significant injustice to the controlled person" (per Lord Bingham in MB [35] with whom Lord Brown agreed [90]) and that means determining whether the controlled person has had a fair trial. It is, as Collins J explained after the MB decision in Re Bullivant [2006] EWHC 2938 (Admin) [11], "the final picture that needs to be looked at".
31. In performing this task, I bear in mind in AE's favour the disadvantages for him in not seeing all the closed material and having to rely on the Special Advocate to protect his interests without being able to take instructions from AE in the way an advocate is usually able to in ordinary proceedings.
32. In the Special Advocate's list, Mr. Supperstone submitted that there were a number of allegations which should be disclosed to AE and in the December Disclosure, the Secretary of State has disclosed that:


(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".

33. An issue on this application was whether AE has been able to participate in the substantive application in a manner which is consistent with his article 6 rights. In this respect, it is noteworthy that AE has already explained his teaching, preaching and beliefs in some detail in paragraph 9 of his second witness statement. He has stated that he is not an extremist or a radical but that he has "on many occasions publicly condemned terrorism or any illegality whether it be in this country, Iraq or anywhere else in the world". It is important not to forget that the issue on the substantive application is not whether AE is a terrorist but whether the Secretary of State "has reasonable grounds for suspecting that [AE] is or has been involved in terrorism-related activity". In any event, now that the matters set out in the last paragraph have been disclosed, he is still able, if he wishes, to deal with any of these matters by further cross-examination or by adducing evidence at the hearings of this matter which are fixed for February 2008.
34. This point has to be considered in the light of the contention in the open section of the re-amended control order which informed AE of the allegation that he "has been involved in providing support for the jihadist insurgency in Iraq" and that he has been involved "in radicalising individuals in the United Kingdom". In his second statement, AE denied any involvement in terrorist activity in Iraq, the United Kingdom or in any other country as well as denying involvement in radicalising individuals of the United Kingdom and specifically denying any links with Ansar al Islam, Ansar al Sunnah or Al Qaida in Iraq. Significantly, he also asserts that "I have never been involved in providing support for the jihadist insurgency in Iraq".

.

VII. The case for AE.

35. Mr. Davies contends that prior to the December disclosure no relevant evidence had been disclosed to AE and that even after its disclosure, the overall disclosure of the Secretary of State's case to AE has been inadequate for the purpose of protecting AE's article 6 rights. It is correct that many details of the Secretary of State's case have not been disclosed to AE and that the Special Advocate has not called any evidence on behalf of AE to explain or to undermine the closed material.
36. So it is said by Mr. Davies that without knowing what instructions and evidence that AE would have been able to adduce if he had seen the closed material, I cannot be sure whether AE could or indeed would have mounted a successful challenge to the Secretary of State's case. He submits that it follows that even with the December disclosure, the present proceedings have not afforded AE the sufficient measure of procedural protection as is required by article 6. The Secretary of State contends that in this case the December disclosure coupled with the way in which the Special Advocate has been able to advance AE's case and undermine the Secretary of State's case means that the article 6 rights of AE have not been infringed.

VIII Conclusions.

37. In order to determine this issue, my starting point is (as I have explained in paragraph 16 (a) above) the approach advocated by the Strasbourg Court on various occasions and which has been quoted with approval by three members of the Appellate Committee in MB, which was 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".

38. Having studied the closed material, I am also satisfied that in this case that the difficulties caused to AE by the adoption of the Special Advocate procedure were in the words of Strasbourg decisions "strictly necessary" because of the serious security problems which would have been caused if the closed evidence and the sources of information were disclosed. It would reveal a great deal about the workings of the Security Service and this is information which should be kept confidential. I add that the Special Advocate correctly in my view did not object to much of the material in this case remaining closed for security reasons.
39. The next issue was whether in the words of the Strasbourg decisions "any difficulties caused to the defence by a limitation on its rights [by not disclosing the closed material] must be sufficiently counterbalanced by the procedures followed by the judicial authorities". Those procedures were essentially the use of the Special Advocate procedure which I have described in paragraphs 11 to 14 above as well as the December and the other disclosures made previously to AE of the case for the Secretary of State.
40. As I have explained, my task is to ascertain if "looking at the process as a whole, whether a process has been used which involved a serious injustice to the controlled person" and that process entails both the Special Advocate and me, in the words of Baroness Hale set out in paragraph 20 above, having "to probe the claim that the closed material should remain closed with great care and considerable scepticism". Having carried out that exercise, in my opinion, and this is subject to the matter referred to in paragraph 44 below, I concluded that the use of the Special Advocate procedure in this case has not caused using the test in MB any "serious injustice" to AE in the light of the process as a whole; by which I mean not merely the submissions of counsel, the way in which the Special Advocate has been able to challenge and has actually challenged the closed material in the careful and thorough cross-examination of witness O, the witness statement of AE and the December disclosure but also the nature of the remaining closed material and how it could have been challenged. I have explained my reasons for that conclusion in my closed judgment.
41. So subject to the matter referred to in paragraph 44,I am satisfied that the difficulties caused to AE by not disclosing the closed material were in the words of the Strasbourg Court referred to in paragraph 16(a) above "sufficiently counterbalanced by the procedures followed by the judicial authorities".
42. Additionally, I should add that if, which is not the case, I had been in any doubt as to whether the AE's article 6 had been infringed, I would have been fortified in reaching the conclusion that they had not been for two additional reasons. First, the issue with which I am concerned is not whether AE was involved in terrorist-related activity but whether the Secretary of State had reasonable grounds for that belief. That test has a low threshold because, as has been explained by the Strasbourg Court, "having a reasonable suspicion' presupposes the existence of facts of information which would satisfy an objective observer that the person concerned may have committed the offence" ( Fox Campbell and Hartley v United Kingdom (1990) 13 EHRR 157 [ 32])".

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.

43. As I have explained, I consider that there would be serious prejudice to AE if he continued to be prevented from being told of certain allegations, which I have set out in the closed judgment. In reaching this conclusion, I have borne in mind (a) the significance of these allegations to the Secretary of State's case for showing that she had "reasonable grounds for suspecting [AE] is or has been involved in terrorism-related activity"; (b) the limited ability of the Special Advocate to challenge this assertion; and (c) the prospect that if AE was told of this assertion he could either by adducing further evidence from others or by providing material to the Special Advocate undermine the Secretary of State's case on this point or further his own case. Thus in accordance with Baroness Hale's approach in MB to which I have referred in paragraph 16 (g) above, when I circulated the draft closed judgment, the Secretary of State was put to her election as to whether this information could safely be disclosed. I explained that if she then decided that it might still be withheld, and then she could not be required to serve it but this material could not be considered further on the substantive application. I was concerned as to whether any useful purpose would be served by putting the Secretary of State to this election but I concluded that she should have the opportunity to put forward an amended version of this allegation on which the Special Advocate could then make submissions.
44. After I had circulated the draft closed judgment on 10 January 2007, I gave the Secretary of State a reasonable period of 7days in order to decide which course she wished to select. I explained that if there is any part of this assertion which cannot be relied upon by the Secretary of State as a result of this order, then I would propose at the substantive hearing to consider the evidence in this case first without this allegation and then with it. At a further hearing, the Secretary of State agreed that she would not rely on the allegations to which I have referred in paragraph 44 and which are described in greater detail in the closed judgment in this case.
45. Of course I will continue to keep under consideration during the remainder of the hearing later this month, the issue of whether the article 6 rights of AE have been preserved during the remainder of the proceedings. My conclusion on the proceedings to date is that subject to the matter referred to in the last two paragraphs, his article 6 rights have not been infringed.