England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/03/2008

Stanley Burnton J :

Introduction: the issues before me

1. I have before me proceedings under section 3(10) of the Prevention of Terrorism Act 2005 ("the PTA") concerning two control orders relating to AF. The question I address in this judgment is whether the proceedings before Ouseley J under section 3(10) relating to the first of these control orders, PTA/33/2006, satisfied the requirements of Article 6 of the European Convention on Human Rights. It is submitted on behalf of AF by his counsel and by the Special Advocates that the hearing before Ouseley J did not comply with Article 6, because none of the significant allegations and none of the significant evidence relied upon by the Secretary of State had been disclosed to him. This issue was remitted to the Administrative Court by the House of Lords [2007] UKHL 46, [2007] 3 WLR 681, when it determined the Secretary of State's appeal and AF's cross appeal against the judgment of Ouseley J, as I shall relate below.
2. The other control order, PTA 4/2007, is due to be the subject of a section 3(10) hearing commencing on 11 March 2008. In relation to that hearing, it is submitted on behalf of AF by his counsel and by the Special Advocates that, since the allegations and evidence against him remains substantially the same as they were before Ouseley J, and with a minor exception remain undisclosed to him, that hearing cannot comply with Article 6 unless further disclosure is made by the Secretary of State.

The procedural history

3. I can take this from the helpful summary in the judgment of Sir Anthony Clarke MR in the Court of Appeal [2008] EWCA Civ 117 on appeal from my earlier judgment in these proceedings [2007] EWHC 2828 (Admin):

2. AF has been the subject of three non-derogating control orders under section 3 of the PTA. The first was PTA/6/2006 which was imposed on 24 May 2006. It required AF, among other things, to remain in his residence for 18 hours a day and to remain in a restricted area for the remaining 6 hours. The order was revoked on 11 September 2006 by the Secretary of State ('the SSHD') following the decision of this court in SSHD v JJ and Others [2006] EWCA Civ 1141.

3. It was replaced by PTA/33/2006 on the same day, 11 September 2006. This second order reduced the hours of curfew to 14 and relaxed some of the other restrictions in the first order. There followed a full hearing under section 3(10) of the PTA before Ouseley J. The hearing lasted 7 days and involved both extensive oral evidence and legal submissions. It also involved both open and closed hearings and open and closed evidence. Ouseley J handed down his judgment, [2007] EWHC (Admin) 651, on 30 March 2007. By an order of the same date, Ouseley J quashed PTA/33/2006 on the ground that the order constituted a deprivation of liberty under article 5 of the European Convention of Human Rights ('the Convention'). In the course of his lengthy judgment, which ranged over a number of different issues, Ouseley J reached the following conclusions which are relevant or potentially relevant for present purposes:

i) On the closed material reasonable grounds existed for suspecting that AF was or had been involved in terrorism-related activity, although no such grounds were disclosed by the open material and it was not submitted that they were: [13].

ii) A control order was necessary for purposes connected with protecting members of the public from a risk of terrorism "in view of the potential harm to the public if AF engages in terrorism-related activity, and in view of his willingness and ability to do so": [133].

iii) Had the control order not breached Article 5, the court could be satisfied that the general run of restrictions were necessary, but the detail and balance would have to be examined further: [145].

iv) The process under the PTA was not one in which AF had been without a substantial and sufficient measure of procedural protection, so that there was no breach of article 6 of the Convention: [167].

4. In anticipation of the judgment of Ouseley J and in the light of his conclusion on article 5 of the Convention, the third control order PTA/4/2007 was made on 29 March 2007 and served on the following day. It reduced the period of curfew to 12 hours.

5. Both parties appealed to the House of Lords under the leap frog procedure contained in section 12(3)(b) of the Administration of Justice Act 1969 and the appeal was heard together with an appeal from a decision of this court in SSHD v MB [2006] EWCA Civ 1140, [2007] QB 446. The House of Lords gave judgment in both cases on 31 October 2007. On the same day the House of Lords gave judgment in SSHD v JJ and Others [2007] UKHL 45 [2007] 3 WLR 642.

6. By a majority the House of Lords held in SSHD v MB & AF [2007] UKHL 47, [2007] 3 WLR 681

i) reversing the decision of Ouseley J, that PTA/33/2006 did not amount to a deprivation of liberty contrary to article 5 of the Convention for the reasons given in SSHD v JJ; and

ii) that the question whether AF had been given a fair trial in accordance with article 6 of the Convention would be remitted to the Administrative Court for reconsideration in the light of the opinions of the majority.

The majority comprised Lady Hale, Lord Carswell and Lord Brown of Eaton-under-Heywood. They also I think included Lord Bingham, albeit dubitante. Lord Hoffmann dissented.

7. Before the House of Lords gave its judgment on 31 October 2007, the second control order PTA/33/2006 expired on 10 September 2007. This was because control orders (like the PTA itself) only have a life of one year and the order had been imposed on 11 September 2006. In fact AF had not been subject to PTA/33/2006 since 31 March 2007 when it was quashed by Ouseley J and replaced by PTA/4/2007. PTA/33/2006 was (I suppose) retrospectively revived by the order of the House of Lords which reversed Ouseley J's order and at the same time remitted it for reconsideration in the light of the majority opinions. Since, even if retrospectively revived, the order expired on 10 September 2007, the decision of the court on remission, so far as I can see, only has historical significance or potential significance.

8. In the meantime, PTA/33/2006 was (as I have just said) replaced by PTA/4/2007 on 29 or 30 March 2007. That order was modified in some respects by Goldring J on 17 August 2007 and was further modified on 31 October and 9 November 2007. In particular, the number of hours of curfew was increased to 16 on 31 October in the light of the decision of the House of Lords.

4. It is also helpful to set out paragraphs 10 to 12 of the judgment of the Master of the Rolls:

10. Section 3(10) provides:

"On a hearing in pursuance of directions under subsection 2(c) …, the function of the court is to determine whether any of the following decisions of the Secretary of State was flawed -

(a) his decision that the requirements of section 2(1)(a) and (b) were satisfied for the making of the order; and

(b) his decisions on the imposition of each of the obligations imposed by the order. "

It was held by this court in SSHD v MB that section 3(10) should be construed so that the function of the court at such a hearing is to consider whether any of the decisions identified in section 3(10)(a) and (b) is (not was) flawed as at the date of the hearing. By section 3(11) the court must apply the principles applicable on an application for judicial review. This court explained at [60] of SSHD v MB that on the true construction of the PTA the review involved the court deciding whether the facts relied upon by the SSHD amounted (as at the date of the hearing) to reasonable grounds for suspecting that the controlee is or has been involved in terrorism-related activity.

11. It follows that the role of the court when considering PTA/4/2007 is to decide whether

a) the SSHD has reasonable grounds for suspecting that AF is or has been involved in terrorism-related activities;

b) 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 AF; and

c) the decision of the SSHD in respect of each such obligation is flawed.

Those formulations are derived from sections 2(1) and 3(2), (10) and (11) of the PTA as considered by this court in SSHD v MB. I will return below to the approach to be adopted by the court in reaching those decisions.

13. In the light of the recent jurisprudence there is an anterior question, namely whether the hearing of those questions will be a fair hearing in accordance with article 6 of the Convention. As already indicated, Ouseley J held that the hearing under section 3(10) in respect of PTA/33/2006 was fair. He did so on the basis of the decision of this court in SSHD v MB (to which I was a party together with Lord Phillips CJ and Sir Igor Judge P) that, although the case against AF depended on the closed material which he was not permitted to see and, although he was not permitted to be told even the gist of the case against him, the hearing was fair because of the role played by the special advocates Mr Hugo Keith and Mr Jeremy Johnson. As I said earlier, the majority in the House of Lords took a somewhat different view. The principles applicable to the question whether the hearing under section 3(10) of the PTA in respect of PTA/4/2007 will be fair within the meaning of article 6 of the Convention will be different from those applied by Ouseley J in respect of PTA/33/2006. They will be the principles to be deduced from the speeches of the majority in SSHD v MB and AF. The same principles will be applicable to the question remitted to the Administrative Court by the House of Lords in respect of PTA/33/2006.

5. Thus it can be seen that the essential question before me in relation to PTA/33/2006 is whether the decision of the House of Lords in MB and AF requires a different finding on compliance with Article 6 than that made by Ouseley J.

The legislative background

6. Article 6.1 is as follows:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

7. In MB and AF, the House of Lords held that proceedings under section 3(10) are not criminal proceedings for the purpose of Article 6: they are civil proceedings; but the respondent is entitled to procedural protection commensurate with the gravity of the potential consequences, which, given the restrictions imposed by the control order, are most serious: see Lord Bingham at [23] and [24]. On this point, the members of the Appellate Committee were agreed.
8. The provisions of the PTA which are particularly relevant to the present issue are to be found in the Schedule, which makes provision for control order proceedings. Paragraph 4 confers powers to make special rules of court, and includes the following:

(2) Rules of court made in exercise of the relevant powers may also, in particular—

(a) make provision enabling control order proceedings or relevant appeal proceedings to take place without full particulars of the reasons for decisions to which the proceedings relate being given to a relevant party to the proceedings or his legal representative (if he has one);

(b) make provision enabling the relevant court to conduct proceedings in the absence of any person, including a relevant party to the proceedings and his legal representative (if he has one);

(c) make provision about the functions in control order proceedings and relevant appeal proceedings of persons appointed under paragraph 7; and

(d) make provision enabling the relevant court to give a relevant party to control order proceedings or relevant appeal proceedings a summary of evidence taken in his absence.

(3) Rules of court made in exercise of the relevant powers must secure—

(a) that in control order proceedings and relevant appeal proceedings the Secretary of State is required (subject to rules made under the following paragraphs) to disclose all relevant material;

(b) that the Secretary of State has the opportunity to make an application to the relevant court for permission not to disclose relevant material otherwise than to that court and persons appointed under paragraph 7;

(c) that such an application is always considered in the absence of every relevant party to the proceedings and of his legal representative (if he has one);

(d) that the relevant court is required to give permission for material not to be disclosed where it considers that the disclosure of the material would be contrary to the public interest;

(e) that, where permission is given by the relevant court not to disclose material, it must consider requiring the Secretary of State to provide the relevant party and his legal representative (if he has one) with a summary of the material;

(f) that the relevant court is required to ensure that such a summary does not contain information or other material the disclosure of which would be contrary to the public interest;

(g) that provision satisfying the requirements of sub-paragraph (4) applies where the Secretary of State does not have the relevant court's permission to withhold relevant material from a relevant party to the proceedings or his legal representative (if he has one), or is required to provide a summary of such material to that party or his legal representative.

(4) The provision that satisfies the requirements of this sub-paragraph is provision which, in a case where the Secretary of State elects not to disclose the relevant material or (as the case may be) not to provide the summary, authorises the relevant court—

(a) if it considers that the relevant material or anything that is required to be summarised might be of assistance to a relevant party in relation to a matter under consideration by that court, to give directions for securing that the matter is withdrawn from the consideration of that court; and

(b) in any other case, to ensure that the Secretary of State does not rely in the proceeding on the material or (as the case may be) on what is required to be summarised.

(5) In this paragraph "relevant material", in relation to any proceedings, means—

(a) any information or other material that is available to the Secretary of State and relevant to the matters under consideration in those proceedings; or

(b) the reasons for decisions to which the proceedings relate.

9. In addition, paragraph 7 of the Schedule provides for the appointment of a Special Advocate to represent the interests of the respondent.
10. Part 76 of the CPR contains the special rules authorised by the Schedule to the PTA. Of particular relevance in the present context are paragraphs 76.1(4) (defining public interest for the purposes of that Part) and 76.2 and the provisions concerning the functions of and the restrictions imposed on Special Advocates by paragraphs 76.24 and 76.25. Part 76.2 is as follows:

(1) Where this Part applies, the overriding objective in Part 1, and so far as relevant any other rule, must be read and given effect in a way which is compatible with the duty set out in paragraph (2).

(2) The court must ensure that information is not disclosed contrary to the public interest.

(3) Subject to paragraph (2), the court must satisfy itself that the material available to it enables it properly to determine proceedings.

11. Paragraphs 76.24 and 76.25 provide:

76.24 Functions of the special advocate

The functions of a special advocate are to represent the interest of a relevant party by-

(a) making submissions to the court at any hearings from which the relevant party and his legal representatives are excluded;

(b) cross examining witnesses at any such hearings; and

(c) making written submissions to the court

76.25 Special advocate: communicating about proceedings

(1) The special advocate may communicate with the relevant party or his legal representative at any time before the Secretary of State serves closed materials on him.

(2) After the Secretary of State serves closed material on the special advocate, the special advocate must not communicate with any person about any matter connected with the proceedings, except in accordance with paragraph (3) or a direction of the court pursuant to a request under paragraph (4).

12. It is also necessary to refer to part of CPR Part 76.29:

76.29

…

(6) Where the court gives permission to the Secretary of State to withhold close material, the court must-

(a) consider whether to direct the Secretary of State to serve a summary of that material on the relevant party or his legal representative; but

(b) ensure that no such summary contains information or other material the disclosure of which would be contrary to the public interest.

(7) Where the court has not given permission to the Secretary of State to withhold closed material from, or has directed the Secretary of State to serve a summary of that material on, a relevant party to his legal representative –

(a) the Secretary of State shall not be required to serve the material or summary; but

(b) if he does not do so, at hearing on notice the court may –

(i) if it considers that the material or anything that is required to be summarised might be of assistance to the relevant party in relation to a matter under consideration by the court, direct that the matter be withdrawn from its consideration, and

(ii) in any other case, direct that the Secretary of State shall not rely in the proceedings on that material or (as the case may be) on what is required to be summarised.

(8) The court must give permission to the Secretary of State to withhold closed material where it considers that the disclosure of that material would be contrary to the public interest.

The decision of the House of Lords

13. I must now determine, so far as I can, the principles to be derived from the Appellate Committee's opinions. In relation to the present case, it is crucial to bear in mind that, as mentioned above, none of the significant allegations made or evidence relied upon by the Secretary of State was disclosed to AF. But it must also be borne in mind that in cases such as the present the closed material, i.e. the material relied upon by the Secretary of State, is likely always to be important, and may be decisive, since otherwise the Secretary of State would not need to seek to rely on it.
14. The PTA and CPR Part 76 are, it seems to me, based on two propositions:

(a) There is a real and serious threat posed by terrorism to the lives and limbs of the public; and

(b) the nature of the evidence of the possible threat posed by a particular individual who is suspected of participation in terrorist activities or of an intention or willingness to participate in such activities may be so sensitive that it would be contrary to the public interest for it to be disclosed to that individual. To disclose that evidence, or the allegations based on it, may lead, for example, to the identification of the sources of information or the abilities of the security services which would prejudice their ability to protect the public from the threat of terrorism. (However, the public interest is widely defined for present purposes by CPR Part 76.1, and goes beyond the interest in preventing acts of terrorism.)

15. Both of these propositions has been accepted by Parliament and they are reflected in the provisions of the PTA and of CPR Part 76, but no one who has any knowledge of, to mention only a few, the events of July 2005 in London, of the terrible explosions in Madrid, of events in Iraq and Afghanistan and elsewhere, and who has considered the closed evidence in cases such as the present can be under any doubt that both premises are amply well-founded.
16. Article 6 normally requires that every party to civil proceedings is entitled to know the allegations against him and the evidence relied upon against him, and to have the opportunity to address those allegations and that evidence by adducing evidence.
17. There are in theory only 3 possible opinions as to the application of Article 6 to proceedings such as the present:

(a) Fairness is a qualified requirement, and in public law proceedings requires fairness to the public as well as to the respondent. The propositions referred to above justify the withholding of sensitive evidence from the individual concerned where it is strictly necessary to do so. Provided all that can reasonably be done to represent and to protect his interests is done, the proceedings will satisfy the requirements of fairness.

(b) Proceedings affecting an individual to the extent that control order proceedings affect him cannot be fair unless he knows the allegations and evidence against him and is given the opportunity effectively to dispute them.

(c) Proceedings in which relevant allegations and evidence are withheld from the respondent may or may not comply with the requirements of Article 6, depending on the facts and circumstances.

18. Each of these opinions is tenable. Lord Hoffman, and the Court of Appeal in MB [2006] EWCA Civ 1140 were of the opinion that (a) represents the law. Lord Bingham was initially of the opinion that (b) represents the law. Referring to the decision of the House of Lords in R (Roberts) v Parole Board [2005] 2 AC 738, he said, at [34]:

I do not understand any of my noble and learned friends to have concluded that the requirements of procedural fairness under domestic law or under the Convention would be met if a person entitled to a fair hearing, in a situation where an adverse decision could have severe consequences, were 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 to challenge or rebut the case against him.

19. Referring to the present case, Lord Bingham said:

42 Ouseley J observed [2007] EWHC 651 (Admin) at [11] that the open case for a control order against AF was very short. AF came to the attention of the Security Service before his arrest in May 2006. It was alleged that he had links with Islamist extremists in Manchester, some of whom were affiliated to the Libyan Islamic Fighting Group ("LIFG"). The LIFG became a proscribed organisation on 14 October 2005. The judge found, at para 61, it to be clear that the essence of the Secretary of State's case against AF was in the closed material, and AF did not know what the case against him was. The open material disclosed to AF did not give grounds for reasonable suspicion, at para 131, and it was not contended that it did. There were no more than links to extremists, who also had innocent links to him. The judge thought it clear, at para 131, that more than reasonable grounds for suspicion existed, but only on the closed material. The judge was similarly satisfied that a control order was necessary, at para 133, but that conclusion depended on the closed evidence. The judge accepted, at para 146, without qualification, submissions by counsel for AF that no, or at least no clear or significant, allegations of involvement in terrorist-related activity were disclosed by the open material, that no such allegations had been gisted, that the case made by the Secretary of State against AF was in its essence entirely undisclosed to him and that no allegations of wrongdoing had been put to him by the police in interview after his arrest, affording him an idea by that side wind of what the case against him might be. Having noted the decision of the Court of Appeal in MB [2007] QB 415 and the decision of the House in  Roberts  [2005] 2 AC 738 the judge concluded, at para 166, that there was no clear basis for a finding of incompatibility.

43 This would seem to me an even stronger case than MB 's. If, as I understand the House to have accepted in Roberts the concept of fairness imports a core, irreducible minimum of procedural protection, I have difficulty, on the judge's findings, in concluding that such protection has been afforded to AF. The right to a fair hearing is fundamental. In the absence of a derogation (where that is permissible) it must be protected. In this case, as in MB 's, it seems to me that it was not.

20. Nonetheless, Lord Bingham agreed that the case should be remitted to the Court for reconsideration of the Article 6 issue in the light of the committee's conclusions. Given that the case of AF is extreme, in that he did not know what the case against him was in any relevant respect, it is difficult to see on what basis, consistent with Lord Bingham's opinion as to the requirements of Article 6, the Court could now hold that it had been complied with; but, if that is right, there was no point in the remission, which implies that the Administrative Court may hold that Article 6 was complied with. However, it seems to me that the majority opinion of the Committee is to be found in the opinions of Lady Hale, Lord Carswell and Lord Brown.
21. The majority of the Committee of the House of Lords were of the opinion that the proposition in paragraph  REF _Ref192041402 \r \h (c) above represents the law. Their citation of paragraph 131 of the judgment of the European Court of Human Rights in Chahal v UK 23 EHRR 413 confirms this:

The court recognises that the use of confidential material may be unavoidable where national security is at stake. This does not mean, however, that the national authorities can be free from effective control by the domestic courts whenever they choose to assert that national security and terrorism are involved. The court attaches significance to the fact that, as the interveners pointed out in connection with article 13, in Canada a more effective form of judicial control has been developed in cases of this type. This example illustrates that there are techniques which can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice.

22. This begs the question: what is meant by "a substantial and sufficient measure of procedural protection". Given the facts of the hearing before Ouseley J, it must mean that the participation of the Special Advocate in the proceedings, who was able to challenge the decision of the Secretary of State to withhold material from the respondent and to challenge that material in the closed sessions, may render the proceedings fair, notwithstanding the respondent's ignorance of important elements of the case and evidence against him.
23. Lady Hale considered that paragraph 4(3)(d) of the Schedule to the PTA should be read down as being qualified by an exception "where to do so would be incompatible with the right of the controlled person to a fair trial". But this does not mean that the Secretary of State can be required to disclose sensitive material:

72. … Where the court does not give the Secretary of State permission to withhold closed material, she has a choice. She may decide that, after all, it can safely be disclosed (experience elsewhere in the world has been that, if pushed, the authorities discover that more can be disclosed than they first thought possible). But she may decide that it must still be withheld. She cannot then be required to serve it. But if the court considers that the material might be of assistance to the controlled person in relation to a matter under consideration, it may direct that the matter be withdrawn from consideration by the court. In any other case, it may direct that the Secretary of State cannot rely upon the material. If the Secretary of State cannot rely upon it, and it is indeed crucial to the decision, then the decision will be flawed and the order will have to be quashed.

24. This raises the question: if the Court considers that the material in question might be of assistance to the controlled person, is it required to direct that it be withdrawn from consideration by the Court? Or does this depend on the circumstances, and if so what are the factors that are applicable to the decision? I think the latter is the case, and that the factors applicable must be those to which she referred at [65]:

It seems probable that Strasbourg would apply very similar principles to those applicable in criminal proceedings, but would be more inclined to hold that the measures taken by the judicial authorities had been sufficient to protect the interests of the controlled person. It would all depend upon the nature of the case; what steps had been taken to explain the detail of the allegations to the controlled person so that he could anticipate what the material in support might be; what steps had been taken to summarise the closed material in support without revealing names, dates or places; the nature and content of the material withheld; how effectively the special advocate had been able to challenge it on behalf of the controlled person; and what difference its disclosure might have made. All of these factors would be relevant to whether the controlled person had been "given a meaningful opportunity to contest the factual basis" for the order: see Hamdi v Rumsfeld  542 US 507, 509, col 2, O'Connor J.

25. She summarised her opinion at [74]:

It follows that I cannot share the view of Lord Hoffmann, that the use of special advocates will always comply with article 6; nor do I have the same difficulty as Lord Bingham, in accepting that the procedure could comply with article 6 in the two cases before us. It is quite possible for the court to provide the 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.

26. However, as was apparent from the judgment of Ouseley J, AF had not had the basic allegation explained to him. Lady Hale nonetheless was inclined to the view that Ouseley J's finding that the proceedings had been fair should be respected. She said:

67 The best judge of whether the proceedings have afforded a sufficient and substantial measure of procedural protection is likely to be the judge who conducted the hearing. It is highly significant that, in AF Ouseley J concluded [2007] EWHC 651 (Admin) at [167]:

"I should add that looking at the nature of the issue, namely necessary restrictions on movement in an important interest, and at the way in which the special advocates were able to and did deal with the issues on the closed material, I do not regard the process as one in which AF has been without a substantial and sufficient measure of procedural protection."

That is a judgment with which any appeal court should be slow to interfere.

27. The comment in the last sentence was made, of course, in the context of Ouseley J's statement that the entirety of the case against AF was to be found in the closed material that had not been disclosed to him. Moreover, Ouseley J had reached his conclusion when he was bound by the law as determined by the Court of Appeal in MB, to which I have referred above, which he refused to distinguish: see his judgment at [155]. Yet Lady Hale concluded, at [76]

The case of AF is more difficult, because of the judge's view that there had been a "substantial and sufficient measure of procedural protection". It is tempting, therefore, simply to allow the Secretary of State's appeal on the first (the deprivation of liberty) issue and leave the control order in place. However, the judge had already concluded that the control order should be quashed as a deprivation of liberty; moreover he was bound by the decision of the Court of Appeal in MB. In fairness, AF should have the opportunity of having his case heard in accordance with the approach approved in this House. I would therefore send that case back also.

28. I do not find it easy to see on what basis Ouseley J's view could stand if Article 6 requires any significant disclosure of allegations and evidence to the respondent, and I understand my difficulty to be shared by counsel. The answer may be, I think, that Lady Hale, and the other members of the majority, envisaged that the Secretary of State might decide not to rely on some evidence that had been before Ouseley J, or might be precluded by the Court from doing so in accordance with the procedure suggested by the Appellate Committee.
29. Lord Carswell said, at [80]:

The necessity to furnish a controlee with sufficient material to understand the case made against him and to be in a position to contest it is very clearly established, and it is not necessary for me to cite the many authorities on the point. It is recognised, however, both in domestic law and in the Strasbourg jurisprudence that in some contexts it may be legitimate to withhold a certain amount of significant material from a party where there are sufficiently strong countervailing reasons to set against the individual's right grounded in article 6 to have knowledge of and be able to contest the case against him.

The italics are mine. The relevance of the italicised passages to this case are obvious. At [85] and [87] Lord Carswell said:

85 There is a very 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 para 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.

87 In AF's case Ouseley J accepted [2007] EWHC 651 (Admin) at [146] that "no, or at least no clear or significant, allegations of involvement in terrorist-based activity are disclosed by the open material, nor have any such allegations been gisted". Again, this finding has not been challenged. As in MB'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. At para 167, the judge referred to "the way in which the special advocates were able to and did deal with the issues on the closed material", but it is not spelled out in the judgment how significant their contribution was.

The clear implication is that the fairness of the proceedings depends on the significance of the contribution of the Special Advocate.

30. Lord Brown's opinion was, I think, closer to Lord Bingham's:

90. … I agree too with Lord Bingham's convincing analysis of the authorities, at paras 25-34, and his conclusion, at para 35, that the court's task in any given case is to decide whether the process as a whole has occasioned significant injustice to the person concerned (the suspect). 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. Unless in these cases the judge can nevertheless feel quite sure that in any event no possible challenge could conceivably have succeeded (a difficult but not, I think, impossible conclusion to arrive at-consider, for example, the judge's remarks in AF's own case, set out by Lady Hale of Richmond, at para 67 of her opinion), 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" (Chahal v United Kingdom  23 EHRR 413, para 131) notwithstanding the use of the special advocate procedure; "the very essence of [his] right [to a fair hearing] [will have been] impaired":  Tinnelly & Sons Ltd v United Kingdom  27 EHRR 249, para 72.

91 I cannot accept that a suspect's entitlement to an essentially fair hearing is merely a qualified right capable of being outweighed by the public interest in protecting the state against terrorism (vital though, of course, I recognise that public interest to be). On the contrary, it seems to me not merely an absolute right but one of altogether too great importance to be sacrificed on the altar of terrorism control. By the same token that evidence derived from the use of torture must always be rejected so as to safeguard the integrity of the judicial process and avoid bringing British justice into disrepute (A v Secretary of State for the Home Department (No 2) [2006] 2 AC 221), so too in my judgment must closed material be rejected if reliance on it would necessarily result in a fundamentally unfair hearing.

92 The judges in AF's and MB's cases both appear to have regarded the disclosure made (or capable of being made consistently with the public interest) as insufficient to allow of any effective challenge. In these circumstances I agree with the majority of my noble and learned friends that both cases should now be remitted to the Administrative Court for a final decision as to whether none the less it is possible to confirm the control orders consistently with there having been overall fairness in the appeal process. If the judges' final decision is that the control orders cannot fairly be made, then, in common with Lord Carswell and Lady Hale, with both of whose reasoning on this part of the case I entirely agree, rather than make a declaration of incompatibility, I would instead invoke section 3 of the Human Rights Act 1998 in the manner and with the consequences they suggest.

The italics are mine.

31. As Lord Phillips CJ said in MB in the Court of Appeal, at [36]:

Article 6 is concerned with procedural fairness, not the fairness of substantive law. …

It might be thought that Lord Brown's statement that the judge's finding that "no possible challenge could conceivably have succeeded" justifies the conclusion that Article 6, which safeguards procedural rights, has been complied with confuses substance (to which Article 6 has no application) and procedure (to which it does apply). The answer must be, I think, that if there is no answer to the Secretary of State's case, there is no point in the respondent having the opportunity to address her allegations and evidence.

Subsequent authorities

32. In his judgment in Bullivant [2007] EWHC 2938 (Admin), Collins J said, in a passage with which I respectfully agree:

6. It is in my view unfortunate that the House of Lords did not see the closed material or read the closed judgments in the cases before them. I say this because, albeit the paramountcy of procedural fairness was perhaps not in the forefront of the judges' minds when considering CPR 76.29 applications (and the same principles were applicable in considering the equivalent procedure in SIAC hearings), nonetheless the approach was always that there must be disclosure unless the Secretary of State could establish that the public interest precluded it. In Paragraph 66, Lady Hale observed that 'judges and special advocates will have to probe the claim that the closed material should remain closed with great care and considerable scepticism'. They have always applied the greatest care, knowing the grave disadvantage to the controlee caused by non-disclosure, although I am bound to say that I am not sure why she refers to the need for considerable scepticism. The nature of the material will make clear why the objection is taken. The suggestion that 'there is ample evidence … of a tendency to over-claim the need for secrecy in terrorism cases', is not valid in the experience of judges dealing with these cases, since the security services know that the judges who have dealt with these cases will not uphold objections unless persuaded that it really is necessary to keep the material undisclosed.

33. Collins J continued:

7. How then is it to be decided whether a particular matter should be disclosed to avoid a breach of Article 6? Regrettably, the House of Lords has provided no ready answer. There is no irreducible minimum. No doubt, it would be very difficult if not impossible to produce a test which could be applied and which could provide an answer in all cases. Lady Hale refers in Paragraph 63 to the difference between background information which is not essential to the outcome of the case and evidence which is 'crucial to its determination'.

Collins J referred to paragraphs 68 and 74 of Lady Hale's opinion and said:

Thus her test seems to be that, absent disclosure of evidence which is crucial, there will be likely to be unfairness. But, as Mr Cory-Wright points out, various individual pieces of evidence are likely to be crucial in establishing the reasonable suspicion. Once they are put together, the suspicion is established. Thus, submits Mr Cory-Wright, it is necessary to look at the accretion and so it may be necessary to disclose a number of different pieces of evidence since, if the controlee can show a defence to one or more, the overall case against him will be weakened or destroyed.

34. Collins J concluded that in future there may have to be an iterative procedure in control order cases:

At the conclusion of the hearing, the court must decide, no doubt having heard submissions by the special advocate and on behalf of the Secretary of State, whether there has been a breach of Article 6 and give the Secretary of State the opportunity to remedy the breach by some further disclosure. If such disclosure does then take place, the controlee will have to be given the opportunity to deal with it and a further hearing may be needed.

35. I agree with Collins J that this is the procedure envisaged by the House of Lords, and this is accepted by all counsel before me. To my mind, such an iterative procedure has the very significant drawback in the present context that it is liable to delay the final decision as to the lawfulness of a control order. A non-derogating control order is limited in its duration to a period of 12 months from the date it is made, although it may be renewed: PTA section 2(4). Article 6 and the common law of procedural fairness require that a challenge to its legality should be determined within a reasonable time; and a reasonable time in this context must be well short of a year. Even before the decision of the House of Lords, because of the time involved in disclosure, challenges by the Special Advocate to decisions of the Secretary of State to withhold allegations and evidence, and the preparation of evidence by the parties, it was not easy to arrange for a section 3(10) hearing to take place within the year. In the case of AF, for example, the original control order was made in May 2006 and Ouseley J's judgment was handed down on 30 March 2007, 10 months later. Manifestly, if Ouseley J had had the benefit of the decision of the House of Lords, and if he had decided that further disclosure should be made by the Secretary of State, and such disclosure had been made, the next hearing would have been in all likelihood more than a year after the date of the original control order; and the iterative process implies that a second hearing may not be the last.
36. On 1 February 2008, Silber J handed down judgment in AE [2008] EWHC 132 (Admin), in which he very helpfully set out the approach of the Court as a result of the decision of the House of Lords:

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 than 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".

Emphases are in the original.

37. Lastly, in his, if I may say so, admirably concise and clear judgment in AN [2008] EWHC 372 (Admin) handed down on 29 February 2008 Mitting J summarised the applicable principle as follows:

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.

38. I share Mitting J's doubts as to the exception in cases to which the respondent has no conceivable answer.

The applications of these principles in the present case

39. Although the proceedings relating to PTA 33/2006 are largely academic, since that control order has expired, I consider that I should determine the Article 6 question in relation to PTA 33/2006 at this stage, rather than at the end of the section 3(10) hearing on PTA 4/2007. In the first place, the Court is required to do so by the Order of the House of Lords remitting the issue to this Court. Secondly, the recent additional disclosure by the Secretary of State of an allegation against AF, to which I refer below, makes no significant addition to the negligible previous disclosure. In addition, as I understand it, the evidence relied upon by the Secretary of State for the purposes of PTA 4/2007 does not differ significantly from that relied upon before Ouseley J. Mr Keith has candidly indicated that he considers it unlikely that his cross-examination of the witness called by the Secretary of State in closed session will be any more effective or successful than it was before Ouseley J, particularly since the witness knows from the earlier hearing what the lines of cross-examination are likely to be. It follows that if I conclude that the proceedings before Ouseley J did not comply with Article 6, it is unlikely that the proceedings in relation to PTA 4/2007 will do so without further disclosure, and the Secretary of State will have to consider whether she can or should make any further disclosure. If she decides to do so, the section 3(10) hearing in relation to that control order is likely to have to be adjourned. Conversely, if I decide that the hearing before Ouseley J was compliant, it may be difficult to see on what basis a different finding should be made in relation to PTA 4/2007.
40. I address this issue on the bases set out in the following paragraphs.
41. First, as already mentioned, the case against AF depends entirely on the closed material. Ouseley J said, at [146]:

Mr Otty points out that no, or at least no clear or significant, allegations of involvement in terrorist-related activity are disclosed by the open material, nor have any such allegations been gisted. The case made by the SSHD against AF is in its essence entirely undisclosed to him. Answers to a Request for Further Information did not advance AF's understanding. Nor were any allegations of wrongdoing put to him by the police in interview after his arrest, affording him an idea by that side wind of what the case might be. I accept those factual points.

42. Parenthetically, the only additional disclosure that has been made by the Secretary of State is the following:

AF travelled to Egypt between December 2005 and January 2006. The Security Service assesses that AF engaged in terrorism-related activity in Egypt.

The Security Service assesses that AF may attempt to travel abroad again in order to re-engage in terrorism-related activity.

The Security Service considers that the conditions of the control order are necessary in order to reduce the risk of AF travelling abroad to engage in terrorism-related activity or to abscond.

In my judgment, AF is unable give instructions which would enable the Special Advocates effectively to challenge the statements in the first two sentences if they cannot already do so on the closed material available to them. All he could do would be to deny these allegations, which are in all probability insufficiently specific to enable him to give specific instructions beyond a general denial.

43. Secondly, as submitted by Mr Otty, and was I think accepted by all counsel, the provisions of CPR Part 76 must be read down so as to be consistent with the interpretation of the PTA adopted by the majority in MB and AF pursuant to section 3 of the Human Rights Act 1998. Despite the wording of the implication adopted by the Appellate Committee, I do not understand this to mean that the Court may in any circumstances direct the disclosure of information if that disclosure would be contrary to the public interest. Its consequence is that the Court may preclude the Secretary of State from relying on information if, in the absence of its disclosure to the respondent, such reliance would result in an unfair hearing
44. Thirdly, it was the position before Ouseley J that none of the closed material could be disclosed consistently with the obligation to prevent disclosure contrary to the public interest. I have no doubt that the closed material was scrutinised by Mr Keith and Mr Johnson, and any disputes between them and Mr Eicke and Miss Grange as to disclosure were resolved so far as possible by Ouseley J by requiring disclosure unless he was convinced that it would be contrary to the public interest. I have no reason to believe that that situation has changed. Whether, if put to her election, the Secretary of State's opinion as to the importance of maintaining the control order presently in place will lead her to alter her opinion as to the public interest is presently a matter of speculation.
45. Fourthly, before Ouseley J the Special Advocates did all that was reasonably practicable in the absence of instructions from AF to challenge the Secretary of State's evidence. I would be prepared to make this assumption without referring to Ouseley J's closed judgment. I have referred to it, and it confirms that this assumption is well founded. It was for this reason, I think, that Ouseley J was able to and did find that there had been a "substantial and sufficient measure of procedural protection".
46. Fifthly, it is apparent from the closed judgment of Ouseley J that the Special Advocates' attempts to undermine the case and the evidence of the Secretary of State were in the result ineffective. Parenthetically, in all or most cases in which the issue of compliance with Article 6 arises, the Special Advocates will have failed to undermine the Secretary of State's case, since if they had succeeded in undermining it the control order could not stand and the question of compliance with Article 6 would be academic.
47. In these circumstances, apart from the question whether AF could effectively challenge the Secretary of State's case, I would hold that the proceedings before Ouseley J did not comply with Article 6.
48. It is not surprising that in these circumstances, which I do not understand to be controversial, the thrust of Mr Eicke's submissions was that AF has no conceivable answer to the Secretary of State's case, and despite the lack of meaningful disclosure, the Court "can nevertheless feel quite sure that in any event no possible challenge could conceivably have succeeded". Counsel accepted that control order proceedings may comply with Article 6 if the Court comes to this conclusion, notwithstanding the absence of any meaningful disclosure to the respondent. It is derived from the opinion of Lord Brown; Lady Hale stated at [56] that her approach was shared by him, and none of the majority expressed any reservation as to this part of Lord Brown's opinion. As I have already indicated, I have reservations as to this approach.
49. The Special Advocates and counsel for the Home Secretary were agreed that I should determine this last issue on the basis of a very helpful schedule prepared, at Mr Otty's suggestion, by the Special Advocates setting out the matters on which they would have wished to obtain AF's instructions, if they could do so without prejudice to the national interest, and by counsel for the Secretary of State setting out their responses, together with my reading of the underlying closed material.
50. The approach to this exercise should in my judgment be on the following bases.
51. First, the degree of assurance required is very high. It is that the Court must be quite sure that in any event no possible challenge could conceivably have succeeded. In this connection, I was reminded of the wise words of Megarry J in John v Rees [1970] 1 Ch 345, 402:

It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. "When something is obvious," they may say, "why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start." Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.

52. Secondly, however, the challenge in question is to the reasonable suspicion of the Secretary of State. It is not for the Secretary of State to prove that the respondent has committed or intends to commit a terrorist offence. It is that she has – in other words there are objectively – reasonable grounds for suspecting that the respondent is or has been involved in terrorism-related activity: see e.g. Lord Bingham in MB and AF at [24]. Happily, this case is not complicated by any difference in circumstances as between the date of Ouseley J's judgment and the present date.
53. It follows that the fact that AF may choose to give oral evidence disputing the Secretary of State's evidence may be of relatively little assistance to him. It might be different if there were a real possibility of his adducing independent evidence to dispute the Secretary of State's case, for example, as he might be able to do in relation to an allegation of an incitement to terrorism in public.
54. Ouseley J was convinced by the closed material. However, he did not address the question whether AF might conceivably have an answer to it.
55. Mr Otty has not had the opportunity to make submissions on this remaining issue on Article 6. Since distribution of my judgment in draft, he has made it clear that he wishes to challenge the proposition that there is such an exception to the general principle. I have considered Mr Eicke's response. Given the potential importance of this issue in the present case, my provisional view is that Mr Otty should be permitted to make his submissions on it. When judgment is handed down, I shall give directions as to the whether and when the issues referred to in Mr Otty's email of 6 March 2008 will be determined.
56. Counsel will doubtless wish to consider the future conduct of these proceedings in the light of this judgment.