QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
Tim Otty QC¸ Zubair Ahmad and Tom Hickman (instructed by Middleweeks) for the Respondent
Hugo Keith and Jeremy Johnson as Special Advocates instructed by the Treasury Solicitor Special Advocates' Support Office
Hearing dates: 5, 25 February and 12 March 2008
Crown Copyright ©
Stanley Burnton J :
Should I rule on whether the exception to what are otherwise the requirements of Article 6 represents the law?
"…the Court of Appeal had an implicit jurisdiction to do what was necessary to achieve its two principal objectives of correcting wrong decisions and ensuring public confidence in the administration of justice; that, therefore, it could take the exceptional course of reopening proceedings which it had already heard and determined if it was clearly established that a significant injustice had probably occurred and that there was no alternative effective remedy; that, before exercising such a power, the court would consider the effect of reopening the appeal on others and the extent to which the complaining party was the author of his own misfortune; and that where the alternative remedy would be an appeal to the House of Lords the Court of Appeal would only give permission to reopen an appeal if it was satisfied that leave to appeal to the House of Lords would not be given."
49. I wish to add a few words to deprecate the practice which was adopted in this case of counsel writing to the judge, after a draft judgment has been provided, to ask him to reconsider his conclusions. It is a growing practice and in my view it should happen only in exceptional circumstances.
50. The purpose of the judge providing a draft of the judgment before hand down is to enable the parties to spot typographical, spelling and minor factual errors which have escaped the judge's eye. It is also to give the parties the opportunity to attempt to reach agreement on costs and to consider whether they wish to appeal. Consideration of such matters before hand down can save costs. Circulation of the draft is not intended to provide counsel with an opportunity to re-argue the issues in the case.
51. Only in the most exceptional circumstances is it appropriate to ask the judge to reconsider a point of substance. Those circumstances might be, for example, where counsel feels that the judge had not given adequate reasons for some aspect of his/her decision. Then it may be appropriate to send a courteous note to the judge asking him/her to explain the reasons more fully. By way of further example, if the judge has decided the case on a point which was not properly argued or has relied on an authority which was not considered, the appropriate course will be to ask him/her either to reconvene for further argument or to receive written submissions from both sides. Letters such as the one sent in this case, which sought to reopen the argument on a wide variety of points, should not be sent."
"Counsel accepted that control order proceedings may comply with Article 6 if the Court comes to this conclusion (i.e. that there is no conceivable answer to the Secretary of State's case) notwithstanding the absence of any meaningful disclosure to the respondent."
That statement was incorrect. Mr Otty QC's skeleton argument before me did in my view appear to accept that Article 6 may be complied with in such circumstances, although I do not think he intended to make the concession. Mr Keith, however, did make it clear that he did not accept that Lord Brown's statement represents the law. It follows that my earlier judgment should have addressed this issue; this is my opportunity to rectify that error and to deal with the point.
Is there an exception to the general requirements of Article 6 in cases in which the respondent has no conceivable challenge to the case of the Secretary of State?
"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 Baroness 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".
(a) Is the existence of such an exception demonstrated by previous domestic, Strasbourg or other authority?
(b) Was Lord Brown's statement approved by the other members of the majority of the Appellate Committee?
(c) If so, was it part of the ratio decidendi of the decision of the Appellate Committee?
(d) Has it been the subject of subsequent authority?
(e) Apart from the question of authority, should it form part of our law and should I adopt and apply it?
I shall address these subsidiary questions in the above order.
"29. Having considered all the matter placed before us in this way, we were and are entirely satisfied about five things. First, prosecuting counsel have had access to everything they want to see and have examined all relevant and potentially material matter in accordance with the test propounded by Jowitt J in R v Melvin (unreported) 20 December 1993 as approved by the Court of Appeal in R v Keane  1 WLR 746, 752 and the Court of Appeal and House of Lords in R v Brown (Winston)  1 WLR 1599, 1606-1607 and  AC 367, 376-377, and they have continued to keep the need for disclosure under review. Secondly, the trial judge was correct to rule as he did in relation to the disclosure and non-disclosure of the matter before him. Thirdly, no one has attempted to conceal from this court any relevant or potentially material matter. Fourthly, public interest immunity has been rightly claimed in relation to the matter which we have seen, because it affects national security at the highest level and would, if disclosed, present a clear and immediate threat to life. Fifthly, apart from the two matters to which we shall refer, there is nothing of significance before this court which was not before the trial judge. Having ordered disclosure of these matters to the defendants, in a suitable form, and having heard submissions in relation to them, we are satisfied that no injustice was done to the defendants by not having access to that matter at trial. We say this, first, because the matter added nothing of significance to what was disclosed at trial and, secondly, because, for whatever reason, no attempt was made by the defence at trial to exploit, by adducing it in any form before the jury, the similar material in relation to the embassy which had been disclosed at trial. …"
The italics are mine.
"43. The undisclosed material was first considered by the Court of Appeal in an ex parte hearing prior to the grant of leave to appeal. At the commencement of the hearing of the substantive appeal, the Court of Appeal, in a different composition, heard inter partes submissions on the procedure to be followed in ruling on the Crown's claim for public interest immunity, before deciding to examine the material in an ex parte hearing. The applicants were not represented during this hearing, either by their own counsel or by a specially appointed, security-cleared, counsel (see Edwards and Lewis v. the United Kingdom ([GC], nos. 39647/98 and 40461/98, §§ 43-45, ECHR 2004-X). However, following the disclosure hearing and well in advance of the resumed appeal hearing, the Court of Appeal disclosed to the applicants a summary of the information contained in the first document, as well as an account of the events which had resulted in the fact that the undisclosed material had not been placed before the trial judge. In its judgment of 1 November 2001, the Court of Appeal observed that, save for the material which was given to the applicants in summary form, there was nothing of significance before the court which had not been before the trial judge (see paragraph 18 above). The applicants were given a full opportunity to make submissions on the material which had been disclosed in summary form and on its significance to the issues raised by the case. On the basis of the submissions made, the Court of Appeal concluded that no injustice had been done to the applicants by not having access to the undisclosed matter at trial, since the matter added nothing of significance to what was disclosed at trial and since no attempt had been made by the defence at trial to exploit, by adducing it in any form before the jury, the similar material which had been disclosed at trial.
44. Given the extent of the disclosure to the applicants of the withheld material by the Court of Appeal, the fact that the court was able to consider the impact of the new material on the safety of the applicants' conviction in the light of detailed argument from their defence counsel and the fact that the undisclosed material was found by the court to add nothing of significance to what had already been disclosed at trial, the Court considers that the case bears a stronger similarity to the cases of Jasper and Fitt, Edwards and I.J.L., G.M.R. and A.K.P. (see paragraph 41 above) than to those of Rowe and Davis, Atlan or Dowsett (see paragraphs 38-40 above) and that the failure to place the undisclosed material before the trial judge was in the particular circumstances of the case remedied by the subsequent procedure before the Court of Appeal.
45. There has not, therefore, been a violation of Article 6 in the present case."
Was Lord Brown's statement approved by the other members of the majority of the Appellate Committee?
Was the exception part of the ratio decidendi of the House of Lords?
Has the exception been the subject of subsequent authority?
"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."
Apart from authority, does the exception form part of our law?
The application of the exception
(a) I have accepted that a high standard of proof of the relevant facts is required, consistent with the seriousness of the allegations and the consequences of the imposition of a control order. In doing so, I have followed the guidance given by Lord Bingham in MB and AF.
(b) As required by Lord Brown's formulation, I have not taken into account any evidence that I consider that AF might conceivably be able to challenge if he had the opportunity.
(c) Accordingly, I have also taken into account the fact that the Special Advocates have been unable to take instructions on the closed allegations and evidence of the Secretary of State and therefore have been unable to present a case based on such instructions.
(d) I have accepted that proof of acts on the part of AF is required if the Secretary of State's reasonable suspicion is to be justified and if the requirements of Article 27.2 of the Citizen Rights Directive 2004/38 (which I have assumed to be applicable) are to be satisfied.
(e) I have accepted that the acts in question must be terrorist-related and shown to have been known by him to be so.
(f) I have accepted that the acts of AF must have been sufficiently serious as to justify and to make necessary the imposition of a control order.