Neutral Citation Number: [2008] EWHC 372 (Admin)
Case No: PTA/8/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 29 February 2008
Before :

Mr Justice MITTING

Between :

	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Applicant	
	- and -		
	AN	Respondent	

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MR ROBIN TAM QC & MR NICHOLAS MOSS  (instructed by THE TREASURY SOLICITOR ) for the Applicant
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
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Judgment

Mr Justice MITTING : 

1.	The open case of the Secretary of State against AN is as follows:
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).
2.	The Secretary of State now also proposes to identify three London based extremists, Faisal Siddiqui, Saqib Ahmad and Khalid Kelay as contacts of AN and is prepared to reveal a redacted summary of surveillance of him and Ahmad on 10 May 2007.  She is also prepared to disclose that the facilitation of extremists to participate in terrorist activities overseas “included in Iraq”.  She is, as of now, unwilling to make further disclosure.  
3.	For the reasons set out in the closed judgment on disclosure, I am satisfied that
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).
4.	Miss Webber submits that, unless the Secretary of State makes further disclosure of the grounds upon which she relies, AN’s right to a fair trial of these issues under Article 6 (i) ECHR will be infringed.  Accordingly, she seeks an order that the Secretary of State elects whether or not to make further disclosure or to withdraw this aspect of her case. 
5.	This case raises in acute form the issues considered in principle by the House of Lords in Secretary of State for the Home Department v MB & Others [2007] UKHL 46.  The principle is clear: the Secretary of State may not rely on material which is not disclosed to the controlled person when to permit reliance on it without disclosure would be incompatible with his right to a fair trial: per Lady Hale at paragraphs 70 and 72; per Lord Bingham at paragraph 44, per Lord Carswell at paragraph 84 and per Lord Brown at 92.  The practical guidance given upon the application of that principle is, however, a good deal less clear.  
6.	In paragraph 35, Lord Bingham explained the limits upon the effectiveness of the role of special advocates: they could on occasion demonstrate “that evidence relied on against a controlled person is tainted, unreliable or self-contradictory”; but their use was not a panacea for the “grave disadvantages” of a person affected not being aware of the case against him.  He explained why:
“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.  
7.	Lady Hale observed in paragraph 73 that “there are powerful policy reasons in support of procedures which enable cases to be proven through the evidence of infiltrators and informers rather than upon evidence which may have been obtained through the use of torture”. She might also have added evidence obtained through the use of intercepts.  She observed that “devising a sufficient means of challenging the evidence is an incentive to the authorities to rely on better and more reliable sources of intelligence.  That may sometimes mean keeping their identity, and sometimes some of the surrounding circumstances, secret.  But that is an overall price worth paying for the good of all”.  In paragraph 74 she observed “It is quite possible for the court to provide a controlled person with a sufficient measure of procedural protection even though the whole evidential basis for the basic allegation, which has been explained to him, is not disclosed”.  In paragraph 67, she observed that Ouseley J’s conclusion that AF had not been “without a substantial and sufficient measure of procedural protection” was one with which an appeal court should be slow to interfere.  Indeed, she was tempted simply to accept that conclusion: paragraph 76.  AF was a case in which the open material did not disclose to him grounds for reasonable suspicion.  The only allegation made openly against him was that he had links to islamist extremists in Manchester, some of whom were affiliated to the LIFG: paragraph 42.  It seems, therefore, that Lady Hale would, in an appropriate case, accept that reasonable grounds for suspicion formed on the basis of “better and more reliable sources of intelligence” could be formed and upheld without telling the controlled person more than the barest outline of the nature of the activities of which he was suspected.  If that is the right test, the Secretary of State’s third open statement satisfies it.  
8.	Lord Carswell agreed with Lady Hale and Lord Brown: paragraph 86, but did not formulate a clear test of his own beyond the principle already identified.  He observed in paragraph 87 that in AF’s case “it is difficult to see how this could constitute a fair hearing unless the contribution of the Special Advocate was such as to make a significant difference”.  Because Ouseley J had not spelt out “how significant their contribution was”, he was in favour of remitting it for further consideration.  Applying Lord Carswell’s observations I am satisfied that Mr Nicol QC, AN’s Special Advocate, conducted a skilful and rigorous examination of the closed case; but, necessarily, did so without AN’s instructions upon the undisclosed material. 
9.	The conclusion which I draw from the four speeches of the majority in MB is that unless, at a minimum, the special advocates are able to challenge the Secretary of State’s grounds for suspicion on the basis of instructions from the controlled person which directly address their essential features, the controlled person will not receive the fair hearing to which he is entitled except, perhaps, in those cases in which he has no conceivable answer to them.  In practice, this means that he must be told their gist.   This means that, if he chooses to do so, he can give and call evidence about the issues himself.  
10.	AN does not know the gist of significant grounds of suspicion raised against him.  I have already determined, in a closed Judgment, that the material which I have considered is capable of founding reasonable grounds to suspect that he has been involved in terrorism related activity.  I have identified in a closed disclosure judgment what must be disclosed to him to fulfil his right to a fair hearing in accordance with my understanding of the speeches of the majority in MB.  I do so with disquiet, because the factors which require further disclosure in this case are likely to arise in many others, with the result that the non-derogating control order procedure may be rendered nugatory in a significant number of cases in which the grounds for suspecting that a controlled person has been involved in terrorism related activities may otherwise be adjudged reasonable.
11.	Mr Tam invites me to postpone putting the Secretary of State to her election until the end of the proceedings.  For reasons which I have explained in the closed judgment, I decline to do so.  I have already heard the closed case and reached the (provisional) conclusions stated.  To require AN to present his case in ignorance of the undisclosed material and then, if the Secretary of State elects to make further disclosure, give him the opportunity of re-opening his case, would serve no purpose.  Nothing in the speeches of the majority in MB requires such a procedure to be adopted.