England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		PTA/14/2008 & PTA/15/2008; PTA/27/2008 Royal Courts of Justice Strand, London, WC2A 2LL
		8th August 2008

Ouseley J :

1. The hearing into the making of the Second Control Order in 2007, and the appeals against its renewal in 2008, and against the refusals of various modifications to the obligations have reached the stage at which a decision is required on the extent to which, if at all, further disclosure is required of the SSHD's closed case, in order for the hearing of these appeals to comply with Article 6 ECHR, as applied by the House of Lords in SSHD v MB and AF [2007] UKHL 46 [2008] 1 AC 440.
2. The closed evidence has been through the process required by the Schedule to the Prevention of Terrorism Act 2005, taken forward in CPR Pt 76 R29. It follows that, subject to one area which has now led to further R29 disclosure, any further disclosure necessarily involves a risk to national security or to another statutorily protected interest. If any further disclosure is ordered, it follows that the SSHD will have to do that which the Act on its face does not contemplate, that is to choose between risking national security or another protected interest and withdrawing from the case that which is required to be disclosed. This may prevent a Control Order being made when it is otherwise justified for the protection of the public.
3. Judges have found it appropriate to deal with this issue at various stages in control order appeals. It is convenient in this case to deal with it now. I have heard the open and special advocates' cross-examination of the Home Office and Security Service witnesses. I have read the evidence submitted on behalf of Abu Rideh. I am in a position in this particular case, in advance of any final closing submissions, to form a realistic view about the reliability or significance of various allegations or evidence so far as is necessary for this exercise. Further disclosure need not be contemplated in respect of allegations which I would now regard as unreliable or unimportant in the final decisions on these appeals. Further disclosure would also be unnecessary at this stage if I had concluded that the Order should not be upheld, or at least might very well not be upheld after hearing final submissions from the special advocates.
4. The question of what test the House of Lords intended to lay down for this disclosure and its practical application is already the subject of appeals before the Court of Appeal. No adjournment has been sought of these appeals or of my decision on this issue pending final determination of those appeals. Nonetheless I still have to decide what the test to apply is and how practically to apply it in the instant appeals.
5. Mr Owen QC for Abu Rideh and Mr Khamisa QC, his special advocate, submit that I should follow what they say is the approach of the judges who have already had to consider this issue and whose decisions are under appeal. They urge particular adherence to the approaches of Stanley Burnton J in SSHD v AF [2008] EWHC 453 (Admin) and Mitting J in SSHD v AN [2008] EWHC 372 (Admin). They remind me of R v Greater Manchester Coroner ex p Tal [1985] QB 67: I should follow what they say unless convinced that they are clearly wrong.
6. I do not consider that the jurisprudence as to what the House of Lords meant will be much advanced by further first instance analysis: their opinions have been much chewed over already. But I do need to set the context for the debate before me and for my decision on the test, and, far more problematically, how it is to be applied. I have to analyse what their Lordships said in order to come to my own conclusions because that feeds directly into the practical application of any test in this case.
7. All of their Lordships recognised that Article 6 was not necessarily breached when material was withheld from a controlled person if the interest protected in so doing was sufficiently strong. That limitation on what normally would require to be disclosed in the interests of fairness had to be counterbalanced by measures which gave a substantial measure of procedural protection to the controlled person, commensurate with the consequences at stake for him. This would often be achieved by the role of the special advocate but could not necessarily and always be achieved in that way. The statute could be made compatible with the ECHR, if an Article 6 override or backstop were read into the disclosure provisions, so as to make good the deficiency which the special advocate might not be able to remedy in any particular case.
8. It is clear that their Lordships, in reaching that conclusion, intended to enable the control order process and regime to continue in effective operation with its exclusion of protected material from disclosure, but subject to interpretive modification rather than declaring an incompatibility. Each of them was astute to recognise that the interest which such disclosure would put at risk was a very important public interest, and that such disclosure was not to be undertaken lightly. It is certainly not a matter to be resolved simply on an assertion by an open or special advocate that more is required, but rather by careful judicial decision.
9. Lady Hale and Lord Brown, at least, thought it likely that this interpretative modification would be likely only exceptionally to require the disclosure of or abandonment of reliance on national security protected material. The special advocate was expected normally to be able to provide sufficient procedural protection for an Article 6 compliant hearing.
10. Mr Tam QC for the SSHD understandably relied on that to urge, as the Secretary of State had done in the Court of Appeal, a more restricted approach than Stanley Burnton J had enunciated in AF, and certainly more restricted that his actual application of it in his closed judgment in AF. Mr Tam contrasted that with what he said was the more restricted approach in practice of Mitting J in his closed judgment in AN. The sort of broad approach which the special advocate and Mr Owen spoke of, or which Stanley Burnton J had applied, could not be correct without these "exquisite dilemmas" for the SSHD, as Mr Tam described them, becoming routine rather than exceptional, with a significant impact on the effective operation of the Act as intended by Parliament, and as expected by the majority in the House of Lords.
11. The question for the Court, in my view, is whether, if the control order is upheld in the absence of further disclosure, the procedure will have involved significant injustice to Abu Rideh, or whether instead he would have received a substantial and commensurate measure of procedural protection and justice. How that question is to be answered is more problematic, although it is for the judge to answer that question looking at the process as a whole in the particular circumstances of the case in front of him.
12. Their Lordships appear to agree that no further disclosure would be required if there were sufficient in the open material upon which to dismiss the appeal; see Lord Bingham, paras 41 and 44. So in those circumstances the existence of additional, even significant, closed allegations would not involve of itself a breach of Article 6. This logically may set some practical limit to what further material may have to be disclosed if that which is in open already is insufficient therefore to justify the order. How far that goes where the court also relies on that closed material is unclear. Where closed material is particularly significant to the judgment about the significance or reliability of the open material which would otherwise be sufficient to sustain the Order the distinction between sufficient and insufficient open material may not be so starkly maintained. It may not be capable of maintenance in a case built up from a large number of small pieces. Certainly the case needs to be considered finally as a whole, open and closed.
13. The same considerations, in reverse, would apply to any closed material which the special advocates had shown to be unreliable or which the judge was going to disregard or give little weight to anyway. Disclosure would not be required.
14. Where, however, reliance is placed on closed material, the controlled person has to have "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"; Lord Bingham para 34F.
15. I do not see the phrase "with or without a special advocate" as requiring the court to disregard at all that the special advocate may have been able to do with the closed material when deciding whether and if so what further disclosure is required. Rather the question is whether, using the special advocate, the controlled person has had that necessary knowledge in whatever form.
16. I take the phrase "in whatever form" to refer to the way in which the supporting evidence or detail for any allegation may not need to be disclosed if what is necessary can be provided in some other way. So the effective challenge to or rebuttal of the case against a controlled person may be mounted on the basis of a summary or gist or other limited form of disclosure. This may well be capable of leading to a rather more detailed rebuttal by the controlled person, or at least of creating the opportunity for one, than would be provided by his simply addressing the information in that limited disclosure at the level of detail at which it is provided. This is because such a gist or other disclosure would nonetheless alert the controlled person to the essential features or nature of the case, which he could then address in such detail as he chose. In the light of the way their Lordships contemplated the effect of limited disclosure, it cannot be the case that it was assumed by them that any response would only be at an equivalent level of detail to that provided in the disclosure.
17. Although the language used by Lady Hale and by Lords Carswell and Brown differs a little, those same points emerge quite distinctly. Lady Hale in effect adopts the approach in Hamdi v Rumsfeld 543 US 507, 502 col.2 O'Connor: has the controlled person at the end of the process been "given a meaningful opportunity to contest the factual basis" for the order. It is the "crucial" material relied on as demonstrating the basis for the SSHD's suspicions which has to be disclosed. Lord Carswell refers to "sufficient material to understand the case against him." Lord Brown agreed that the court had to ask itself whether the process as a whole had "occasioned significant injustice". "Sufficient" of the SSHD's case had to be "indicated" "to enable the suspect to advance an effective challenge to it."
18. I do not see Lord Brown as being isolated, as Stanley Burnton J did, in his comment that disclosure would not be required if the judge was quite sure that no possible challenge could conceivably have succeeded. No one expressed disagreement. Lady Hale is clearly making much the same point in paragraph 65G by pointing to the relevance of asking what difference some further disclosure might make. Lord Bingham's point, that material did not need to be disclosed if the open material justified the making of the order, is not completely different, and equally reflects the need for a practical assessment of the outcome. I find it difficult to accept that anyone could sensibly say that closed material which could make no difference to the outcome should be disclosed, that harm should be done in that respect quite pointlessly. The question of whether there has been a substantial measure of protection is at root a practical one, not a theoretical one, in what is necessarily accepted to be a less than perfect hearing. It needs to be remembered in this context that the standard of proof on the SSHD against which the possibility of successful challenge has to be measured is not high. As only reasonable grounds for suspicion are required to exist, rebuttal evidence or alternative explanation would have to be quite convincing to dispel them. The question of further disclosure would only arise if the evidence thus far, as a whole, was sufficient to show reasonable grounds for suspicion. If it did not do so, the order would not be upheld.
19. I do not think that in this context the oft cited passage from John v Rees [1970] Ch 345 at 402, Megarry J, is a sufficient counter to Lord Brown's point, quite circumscribed as it is. Megarry J faced a wholesale failure to follow any requirement of natural justice. He does not appear actually to have faced an argument that no remedy should be given because the committee would inevitably come to the same conclusion. I can understand a reluctance to accept an assertion, had it been made, by the person whose decision had been impugned as unfair, that it would make no difference if he had to go through the process fairly, because the decision had been taken for political reasons and for those same political reasons the decision would be the same. However, if it is supposed that this is authority for the proposition that the possible lack of real effect of some want of fairness should be ignored, I disagree. What Megarry J said does not represent the only or indeed the common approach to the effect of any degree of deficiency in fairness; some assessment of whether some point could have made a difference is commonplace. Indeed the question of whether the deficiency could have made a difference to the outcome may be better seen as part of the measure of whether a hearing was fair. What Megarry J said is rather a cautionary note in relation to the assessment of the practical effect of imperfection, than a statement of principle that the consequences of imperfection should be ignored in an assessment of what fairness requires, or how a want of fairness should be remedied.
20. However, setting that point aside, it is clear from the various formulations of a test adopted by their Lordships that they accept that there will be a less effective disclosure than in normal litigation; imperfection in process is accepted. All accept that sufficient information, by summary or gist or otherwise, can be provided for that purpose though it may lack the detail or evidential support which remains closed.
21. It is also clear that the question of further disclosure arises only where the special advocate is judged to have been unable to provide the necessary sufficient measure of procedural protection in relation to that closed material which is necessary for the order to be upheld. What Lord Bingham says about disclosure is directly related to what the special advocate may be able or unable to do in the absence of further disclosure; see paragraph 35. So what the special advocate can do and the need for meaningful instructions about allegations or evidence is directly related to what further disclosure may be necessary. In my view, cross-examination by special advocates can usually deal with evidential reliability, possible alternative and innocent inferences, internal consistency or contradictions, the significance of pieces of evidence and the strength of the case overall. What they cannot do without instructions or evidence is to provide evidence or explanation which contradicts or explains the closed essential features of the case against him or offer alternative inferences which they are not aware of or lack any support for.
22. Thus, I would formulate the question in the light of MB in the House of Lords in this way: does Abu Rideh now need disclosure of protected material in whatever form to enable him, with the assistance of special advocates, effectively to challenge or rebut the Order made against him, ie to show that the essential features of the case against him do not give rise to the requisite reasonable grounds for suspicion (which by this stage it may well)? Put another way, do the special advocates need instructions or evidence from Abu Rideh to deal with the essential features or basis upon which the Order is made against him, which can realistically only be provided after further disclosure, to displace the reasonable grounds for suspicion which it may well exist at this stage? As I have said there is no point in seeking further disclosure at this stage at least if the order would not be upheld anyway, or if final closed submissions for Abu Rideh were likely to be sufficiently persuasive measured against the statutory test.
23. If the question is answered in favour of further disclosure, and whether that necessary disclosure is provided or the allegations are withdrawn, I would regard that as enabling the fundamental question posed by Lord Bingham at paragraph 35 - looking the process as a whole, has the procedure involved significant injustice - to be answered in the negative.
24. This is not, and is not intended to be very different from what Mitting J said in AN. It adds into the question in this case the need for instructions or evidence; it allows for an Order to be justified on the open material even where significant allegations remain closed, and focuses on the scope for further instructions or evidence to be given in relation to what is likely to be persuasive to the judge in support of the Order. In judging that I would follow what Lord Brown said, although it does not require to be incorporated separately in the question.
25. I should say a little more about some of Mr Tam's submissions. I recognise that Lady Hale and Lord Brown thought that the circumstances in which "MB disclosure", ie disclosure of protected material, would be required for compliance with Article 6 would be exceptional. Mr Tam, as I have said, submitted that that demonstrated something of the quantity and level of disclosure required; it was a guide if not a test. Neither of the others in the majority made such a comment when formulating their quite similar tests.
26. I do not see what they said as a test or guide, but rather as a comforting expectation. If the expectation however is confounded, the core or irreducible minimum requirements of fairness could not be diminished, yielding to that falsified expectation. It is an expectation which, like Mitting J in his open and closed judgments in AN, I expect routinely to be confounded based on the experience already available from closed evidence and judgments in many SIAC and control order cases. A significant number of cases cannot succeed on open evidence alone. Indeed, most of those which could do so also contain important closed material, some of which bears on the significance or assessment of open material.
27. I accept Mr Tam's point that the question of disclosure is not as such about minimum disclosure but is about minimum fairness, but here the step from one to the other is necessary and short.
28. I do not accept that the distinction which Mr Tam seeks to draw between the ordinary "mosaic" category of case into which he was inclined to put the present case, and the exceptional "specific past act" case is as clear as he suggests. Nor do I accept that such a distinction permits rather different approaches to be adopted to disclosure in practice. It is very common, although not invariable, for control orders to draw upon specific past acts which shade into past conduct or behaviour, or a pattern of behaviour, as opposed to simply drawing upon indications as to anticipated future conduct. It is quite difficult to discern how in practice the distinction between one approach and another should be drawn by reference to certain categories of past act or conduct. But in addition, the categories are not readily contrasted: the mosaic case is defined by reference to the build up of a picture drawn from an array of different sources: the specific past act case is defined by reference to what the evidence may show. The reality however is that the mosaic of evidence may also be relied on to show the specific past act.
29. I do accept however that this further MB disclosure is particularly problematic in the type of case which relies more on a mosaic of evidence and allegations than one dependant on a specific past act proved by a more limited range of evidence. This becomes yet more problematic if disclosure of "crucial evidence" is the key part of the test. All the pieces of the jigsaw puzzle may be crucial and equally crucial. But I do not think that disclosure of "crucial evidence" is the key to understanding what is required, especially as it is accepted that material may be summarised, and the source identifying aspects may be capable of being excluded. I prefer Mitting J's word essential "features" or perhaps "basis". That sort of language avoids the problem of drawing a sharp and actually quite unrealistic distinction between allegations and evidence in the context of disclosure, especially as their Lordships envisage that even on further disclosure evidence supporting an allegation may be capable of being withheld. The formulation of an allegation may well end up as an assertion of the evidence on which it is based. An allegation or its formulation may, and often will reveal the evidential source in a way which anonymising or removing detail simply cannot help. If X is said to have done something in a particular place or in a particular way or with a particular person, it may be self-evident to X that that allegation or evidence of terrorist-related activity must have come from someone present, or from intercept and on which line. But the problems posed by this further disclosure, very real though they are for the SSHD and for the use of these control order powers, are overridden ultimately by the requirements of Article 6 as applied by the House of Lords.
30. Mr Tam submitted that the exceptional circumstances spoken of by Lord Brown, where no response to further disclosure could make any difference, applied in this case to the evidence of Abu Rideh's involvement in terrorist-related activity up to his detention under the ATCSA in 2001. He referred to the wealth of evidence found by Beatson J in his open judgment of 4 April 2007 [2007] EWHC 804 Admin Mr Tam had previously submitted that no question of "MB disclosure" could now arise in relation to any of the closed material in that appeal because Abu Rideh had not taken the point on appeal when he could have done.
31. I rejected that latter submission earlier in the appeals. This was a second control order and renewal appeal upon which I had to make up my own mind and giving what weight to Beatson J's judgment as I thought appropriate. It would be unfair to treat it as Article 6 compliant and weighty if in fact it was not, and the conclusions in it might be rebutted following an MB compliant process. So I ruled that I would hear, and now I have heard, all the submissions which the special advocates wished to make about MB disclosure. However, it is not submitted by Mr Owen or by the special advocates that in the absence of such disclosure I should revisit Beatson J's conclusions.
32. In the event, although the MB disclosure sought could affect at least some of the conclusions in Beatson J's judgment, very little of what the special advocates sought related to the period up to 2001. And in fact the essence of what they sought in relation to that is already in open or can be picked up in relation to current activities. In so far therefore as the evidence relates to what Abu Rideh did before 2001, or more aptly in so far as I am asked to give weight to the judgment of Beatson J in relation to such acts, I am satisfied that no further disclosure is required for me to be satisfied that that part of Beatson J's judgment is Article 6 compliant. But I am satisfied of that because of the way in which the special advocates have sought MB disclosure, rather than from an examination of the voluminous pre-2001 material, (I have not examined it), or from the application of the disputed and misnamed "Lord Brown exception". As the years move on, that material also becomes increasingly "background", to use the language of Lady Hale, requiring the court to focus much more on what it is now alleged Abu Rideh does. After all, if it were the position that he had been doing nothing untoward for three years, the significance of what he had done up to 2001 could very well be viewed very differently. If he has continued his activities in the period of the control order, it is upon those that the court would focus.
33. The special advocates' approach drew upon Mitting J's test in open and the application by Stanley Burnton J of his "effective challenge" test, if not his methodology, in his closed judgment. Mr Tam drew attention to the seeming contrast in those closed judgments between the results of the application by those two judges of an apparently similar test – a contrast in my view not wholly explicable by the somewhat different circumstances they were considering.
34. Mr Tam submitted that the measure against which the special advocates had tested the disclosure requirements had been that which normal litigation would require. This he said was a wholly inappropriate measure and had led to the detailed shopping list they pressed on me. He submitted that on Mitting J's approach in his open and closed judgments, little if anything more than a high level gist or headline disclosure, on the lines of what was in Beatson J's judgment, was required.
35. The special advocates submitted, as had Mr Owen, that Abu Rideh, unlike some others, did respond to what he was told; the more he was told, the more he would respond. Information was not being sought simply so as to exclude it from the case. Mr Tam submitted that I should bear in mind that Abu Rideh knew what he had been doing and could provide a statement, or information to the special advocates for use as they saw fit, which dealt with all his activities. Although some of what he might say in such a statement could well be irrelevant, he would be able to cover the areas of concern, even if he did not know precisely when his statement was in fact doing so. He was not going to admit terrorist-related activities, rather he was denying them. It was necessary to consider carefully how much more the special advocates could do with instructions beyond suggesting innocent alternative interpretations or inferences, as they were already doing.
36. I have a few comments on these points. Whatever the value of what normal litigation might require, what is really necessary from both parties in the MB exercise is a focus on what is required to enable the controlled person or special advocate properly to respond to the essential features of the case against him so far as they depend on closed material. In reality, the special advocates sought disclosure of all the closed allegations with incomplete detail, largely at present without supporting documents but not shorn of all details capable of identifying sensitive sources. This approach in my judgment required to be modified by a consideration of the essential features of the case and of the extent to which the special advocate had been able effectively to challenge it and of what disclosure by comparison would enable to be done.
37. I do not think that Mitting J can be taken as necessarily looking only for headline or high level gist in all cases because of the circumstances particular to his case, nor indeed is that quite how he put it. I recognise that Abu Rideh is willing to respond to what he is told. I do think that the willingness of a controlled person to engage with the subject matter of the case is relevant to disclosure at least to this extent: it makes it very difficult to argue that there is no value in disclosure because the controlled person would say nothing anyway, and so is not disadvantaged by its absence. But in the light of MB, it would still be quite difficult in advance to be certain that nothing would be said in response, even if such a point were sound in principle.
38. There is some force in the point that a controlled person can always produce a statement covering what he has been doing and with whom, and even though the target of this perhaps very lengthy statement may not be clear to him, it may succeed in dealing with the essential features of the case against him. However, although Mr Tam rather overstates the strength of that point, it does have some relevance to how valuable gisting, even high level gisting may be, in enabling the controlled person to focus on areas of activity or concern, even though few details may have been disclosed. The controlled person is not necessarily enabled only to respond at the level of detail of the disclosure and may simply exercise a degree of choice about what he says. I have no sympathy with the oft-heard refrain that nothing can be said by those facing closed evidence until all has been disclosed. In some cases, a denial by a controlled persons or the like that some event he himself describes very generally is sinister, may nonetheless show that he is aware that a different view could be taken in the closed evidence. It is open to the controlled person to elaborate on that without further disclosure. He may, of course, be concerned to avoid revealing what he suspects the SSHD may not know.
39. I accept that the real value of the MB disclosure process, in terms of enabling a meaningful response or instructions to be given to counter the essential features of the case lies not in the ability to issue a denial, general or point by point. There usually is a general denial of involvement in terrorist–related activities or terrorists anyway. Nor is the real value in the potential for admissions given that the allegations are to be pigeon-holed within the broad definition of "terrorism" incorporated in the 2005 Act. This is not normal litigation with pleadings intended to define and narrow the issues so as to focus a hearing on disputed issues.
40. The real value lies in the potential for a controlled person to provide evidence which shows a different picture or an innocent interpretation or explanation which counters the basis for the adverse inferences and does so beyond that which the special advocates may suggest. This would either be because there would now be an evidential basis for those suggestions or because the special advocate may not be able to anticipate or put together what the controlled person's position is. He may also be able to provide the special advocate with information or statements to be deployed as the special advocate sees fit, which the court and SSHD may never know of.
41. It is accepted that Abu Rideh does respond to what he has been told. Here he has produced two statements dealing with post 2001 events but in their entirety they deal with the impact of the control order and with breaches of it with which he has been charged. They do not deal with any post 2001 activities because until disclosure earlier in the hearing, he appears to have had no real idea that it was alleged that his activities continue under the control order regime.
42. This is not a case in which the order could readily be sustained on the open material alone. The bare allegations in the open almost all relate to his pre-2001 activities although the allegation that he has continued them under the control order has now been disclosed. Even if the open material sufficed for the position up to 2001, it is much more difficult to see that it could also suffice for continuing restrictions had there been no further activities. I do not need to reach a final conclusion on that point. Although the special advocates have made some important points, this is not a case in which they have been able to deal as effectively as required with the essential features of the case against Abu Rideh. This is only partly because Abu Rideh did not know, in time to provide any meaningful instructions, that it was even being alleged that some of his activities continued under the control order regime.
43. Accordingly I have ordered that there be further disclosure. The SSHD wishes to consider her position. Both the SSHD and Abu Rideh on the advice of the special advocates have sought and been granted permission to appeal to the Court of Appeal against the closed judgment, which I have read out. The open advocates have permission to appeal against this open judgment. It closely follows the closed judgment, but the changes from the closed parts which appear in this hand down version are to be regarded as the expression of my final thoughts. It is hoped by all that the decision of the Court of Appeal on those appeals which it has heard will enable it to be seen whether I have gone too far or not far enough or have applied some wrong principle, so that it will not actually need to hear the appeal. I have extended time generally so that the parties have a reasonable time to put in their grounds of appeal having regard to the vacation; I assumed that they would be able to agree a timetable and they agreed to keep the court notified. I will resume the appeal on 6 October 2008 if the Court of Appeal's decision is available in time to enable a hearing in that week to be effective. The parties agreed to keep me notified of progress.