QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
SECRETARY OF STATE FOR THE HOME DEPARTMENT
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| SECRETARY OF STATE FOR THE HOME DEPARTMENT
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MISS FRANCES WEBBER (instructed by BIRNBERG PEIRCE & PARTNERS) for the Respondent
MR ANDREW NICOL QC & MR PAUL BOWEN (instructed by THE TREASURY SOLICITOR SPECIAL ADVOCATE SUPPORT OFFICE) as Special Advocates
Hearing dates: 5,6,7 & 8 February 2008
Crown Copyright ©
Mr Justice MITTING :
i) He has an intention to travel abroad for terrorism related purposes (first open statement paragraphs 5 and 6)
ii) He attempted to abscond from his control order on 9 September 2007 (second open statement paragraphs 5 – 11)
iii) He has acted as a link between London based extremists and Al-Qaeda linked overseas extremists (third open statement paragraphs 2 and 3)
iv) He has been involved in attack planning, likely to have taken place in the Middle East, to which he has travelled repeatedly (third open statement paragraph 4)
v) He has facilitated extremists to participate in terrorist related activities overseas (third open statement paragraph 5)
vi) He has openly advocated support for violent extremist activities (third open statement paragraph 6).
i) AN has not had disclosed to him a substantial part of the grounds for suspecting that he has been involved in terrorism related activity and that, without further disclosure, he personally will not be in a position to meet those aspects of her case
ii) Disclosure of that material would be contrary to the public interest for one or more of the reasons identified in CPR Part 76.1 (4).
"In any ordinary case, a client instructs his advocate what his defence is to the charges made against him, briefs the advocate on the weaknesses and vulnerability of the adverse witnesses, and indicates what evidence is available by way of rebuttal. This is a process which it may be impossible to adopt if the controlled person does not know the allegations made against him and cannot give meaningful instructions…"
Lord Brown expressly agreed with this analysis at paragraph 90 and went on to state,
"I agree further that the Special Advocate procedure, highly likely though it is that it will in fact safeguard the subject 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 endeavours of all concerned by way of redaction, anonymisation, and gisting, it will simply be impossible to indicate sufficient of the Secretary of State's case to enable the suspect to advance any effective challenge to it. Unless in these cases the Judge can nevertheless feel quite sure that in any event no possible challenge could conceivably have succeeded…he would have to conclude that the making or, as the case may be, confirmation of an order would indeed involve significant injustice to the suspect. In short, the suspect in such a case would not have been accorded even "a substantial measure of procedural justice"…notwithstanding the use of the Special Advocate Procedure; "the very essence of (his) right (to a fair hearing)(will have been) impaired". "
For reasons explained in the closed judgment, this is not a case in which redaction, anonymisation or gisting of the undisclosed material is possible; nor is it a case in which I can feel quite sure that in any event no possible challenge to it could conceivably succeed.