Neutral Citation Number: [2008] EWHC 689 (Admin)
Case Nos: PTA 33/2006 & PTA 4/2007
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 09/04/2008

Before :

MR JUSTICE STANLEY BURNTON
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Between :

	SECRETARY OF STATE FOR THE HOME DEPARTMENT 	Applicant	
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	AF	Respondent	

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Tim Eicke and Kate Grange (instructed by the Treasury Solicitor) for the Applicant
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
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Judgment
Stanley Burnton J : 
Introduction
1.	On 10 March 2008 I handed down a judgment on the issue remitted to this Court by the House of Lords in MB and AF [2007] UKHL 47, namely whether the proceedings before Ouseley J that were the subject of appeal to their Lordships’ House complied with Article 6 of the European Convention on Human Rights. It is clear that in this case insufficient of the closed allegations and evidence relied upon by the Secretary of State has been disclosed to enable AF to advance any effective challenge: the Secretary of State’s case depends entirely on those closed allegations and that closed evidence, which has scarcely been gisted. I therefore concluded that, subject to the question whether the present case is one in which the Court “can feel quite sure that in any event no possible challenge could conceivably have succeeded” (to use the words of Lord Brown at paragraph 90 of MB and AF), the right to a fair hearing would have been impaired. I reached no conclusion on that question, since I considered that Mr Otty QC, for AF, should have an opportunity to address it in open session.
2.	Perhaps influenced by the reservation expressed in my judgment as to whether Lord Brown’s statement of an exception to the right to be informed of sufficient of the case against one to advance an effective challenge to it (again adapting the words of Lord Brown) represents the law, Mr Otty QC sought to argue that it does not. Mr Eicke, for the Secretary of State, submitted that I should not address this issue: it had been accepted by me in my judgment that it did represent the law, and I am, or should regard myself, as functus officio in relation to it. Mr Otty QC was supported by Mr Keith in submitting that I should consider the point.
3.	Thus there are two issues before me to be determined in this open judgment: should I determine this point of law, and, secondly, if so, does Lord Brown’s exception represent the law? I also heard Mr Otty QC on the question whether, if the exception is good law, this case falls within it. I shall hand down a separate closed judgment on that issue, from which it will be seen that on a very narrow basis I have held that it does. That is, of course, relevant to the question whether I should consider the principal legal issue that Mr Otty QC and Mr Keith wish me to determine.
4.	In the last part of this judgment I shall summarise the approach I have adopted in my closed judgment to the application of the exception, on the basis that AF and his advisers are entitled to know it.
Should I rule on whether the exception to what are otherwise the requirements of Article 6 represents the law?
5.	Mr Eicke presented a powerful submission that it is not now open to me to consider whether Lord Brown’s exception represents the law. He submitted that the principle of finality, exemplified by Ladd v Marshall [1954] 1 WLR 1489, requires me to treat the issue as no longer open to AF. Mr Eicke referred me to the judgment of the five-member Court of Appeal in Taylor v Lawrence [2002] EWCA Civ 90 [2003] QB 528, the effect of which is I think accurately summarised in the headnote:
“…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.”
6.	Mr Eicke pointed out that the present is not a case in which there is no alternative remedy: the Secretary of State accepts that the point of law sought to be argued on behalf of AF will be open to him in the Court of Appeal.
7.	To a similar effect is the judgment of Smith LJ in Darren Egan v Motor Services (Bath) Ltd [2007] EWCA Civ 1002:
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.”
8.	My initial reaction to Mr Eicke’s submission and to these authorities was that his submission was well-founded. However, on reflection I have concluded that my initial reaction was inappropriate. 
9.	In my earlier judgment, I said, at [48]:
“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.
10.	Secondly, unlike the judgments considered in Taylor v Lawrence and Egan my judgment was not a final judgment but an interlocutory judgment. At least for the purposes of control order PTA 4/2007 so is my present judgment. My previous judgment concerned the hearing before Ouseley J: there will have to be a hearing to consider control order PTA 4/2007, in which at least in theory the same legal issue could arise. It is common ground that a decision adverse to the Secretary of State will result in her being put to her election as to whether to make any further disclosure to AF, and the question of compliance with Article 6 will have to be addressed again if she decides to do so.
11.	Thirdly, the issue is one of law, divorced from the facts. No question arises of further evidence being relevant to its determination. It is true that it can be argued before the Court of Appeal, but that is in part because, sensibly, the Secretary of State has decided not to object to the withdrawal by AF of the concession apparently made on his behalf before me. It is better that the Court of Appeal has a first instance judgment on the issue, which has now been comprehensively argued before me, which can be considered by the Court of Appeal and be the target (a word I use advisedly) of the submissions of the parties.
12.	Fourthly, the Secretary of State is unable to point to any prejudice she will suffer if I do address and seek to determine this point, since the point is to be argued in the Court of Appeal in any event. I reject the submission made on her behalf that delay and prejudice to AF would be caused if I address this issue, for the same reason, quite apart from the fact that it is for AF’s counsel to consider whether he will be prejudiced, not the Secretary of State’s.
13.	Fifthly, in the present case the availability of the exception is, on the basis of my finding on the factual issue considered in my closed judgment, crucial.
14.	Lastly, although Lord Brown thought that the exception would be applicable in exceptional cases only, I apprehend that if it is available it will not infrequently be sought to argue that it does apply. It will provide an escape valve from the general requirement of disclosure of the substance of the case against a respondent. 
15.	The authorities relied upon by Mr Eicke show that I have jurisdiction to determine the second issue; the question is whether I should exercise my discretion to do so. For the reasons given above, I propose to do so.
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?
16.	The exception was formulated by Lord Brown in MB and AF as follows:
“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".
17.	Any pronouncement of Lord Brown, particularly on a question of public law, is authoritative and deserving of respect. Nonetheless, now that it has been challenged, it falls for consideration whether the italicised (by me) exception to which he referred represents the law. It seems to me that a number of subsidiary questions fall to be considered:
(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.
Previous authority
18.	The only authorities relied upon by Mr Eicke are R v Botmeh [2001] EWCA Crim 2226 [2002] 1 WLR 531 and the consequential judgment of the European Court of Human Rights in Botmeh and Alami v UK (Application no. 15187/03). Botmeh and Alami had been convicted of conspiracy to cause explosions: as it happens, an act of terrorism. Certain exculpatory material had not been disclosed and had not been the subject of a public interest immunity application to the trial judge. On the defendants’ appeal, the prosecution sought to make a public interest immunity application to the Court of Appeal on which the Court would consider whether that material should be disclosed to the defence. It was submitted on their behalf that any such application, on which the material in question would not be disclosed to the defendants, would be incompatible with the requirements of Article 6. The Court of Appeal held that there could be no breach of Article 6 if it examined the material ex parte. Having examined the material, the Court directed that certain information should be disclosed to the defence. The Court upheld the convictions and rejected the argument that there had been any breach of Article 6. Giving the judgment of the Court, Rose LJ said:
“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  [1994] 1 WLR 746, 752 and the Court of Appeal and House of Lords in  R v Brown (Winston) [1994] 1 WLR 1599, 1606-1607 and [1998] 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.
19.	Following the refusal by the House of Lords of leave to appeal, the defendants applied to the European Court of Human Rights. The Court declared their application admissible but held that there had been no violation of Article 6. The Court stated:
“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.”
20.	The facts of Botmeh and Alami are a long way from the present case. The undisclosed material was exculpatory, and included nothing of significance. The prosecution case had been disclosed to the defendants. The defendants’ counsel had been able to make submissions on the gist that was disclosed. In the present case, everything of significance has been withheld from AF. In my judgment, neither the decision of the Court of Appeal nor that of the European Court of Human Rights is authority for the wide exception to the effect that nothing of significance need be disclosed to a respondent if the case against him is unanswerable.
Was Lord Brown’s statement approved by the other members of the majority of the Appellate Committee?
21.	None of the other members of the majority of the Appellate Committee of the House of Lords referred expressly to such an exception. None of the opinions of the members of the Appellate Committee suggests that it was the subject of submissions on the part of counsel. The exception is not referred to in paragraph 43 of the opinion of Lord Bingham, and is I think inconsistent with it. Lady Hale stated that her approach was shared by Lord Brown, but did not refer to his exception. If she intended to lend her authority to it, it seems to me that she would have done so expressly. I do not accept Mr Eicke’s submission that paragraphs 67 and 76 of her opinion endorse the exception. Lord Carswell said that his reasons accorded with those of Lord Brown, but again did not refer to the exception, either in general terms or with reference to AF’s case. To the contrary, he opined that unless the contribution of the special advocate had been such as to make a significant difference, it was difficult to see how the hearing before Ouseley J had been fair. This seems to me to be inconsistent with the exception; it certainly is not support for it. Lady Hale’s reference at paragraph 74 to the possibility of the court providing “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” (my italics) is a different formulation to Lord Brown’s. AF has not had that explanation. 
22.	I conclude that the exception did not receive the authority of the other members of the majority of the Appellate Committee.
Was the exception part of the ratio decidendi of the House of Lords?
23.	This follows from the answer to the previous question: it could not have been unless it was part of the reasoning of the majority.
Has the exception been the subject of subsequent authority?
24.	Lord Brown’s statement of the exception was referred to by Silber J in AE [2008] EWHC 132 (Admin) at paragraph 21 without qualification, but there is nothing to indicate that there was any argument on the present question. Mitting J referred to it in AN [2008] EWHC 372 (Admin) at paragraph 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.”
25.	In my earlier judgment, I stated that in this paragraph Mitting J expressed doubt as to the exception. Despite Mr Eicke’s submission to the contrary, I remain of that view.
26.	It follows that there is no subsequent authority for such an exception.
Apart from authority, does the exception form part of our law?
27.	Having considered this question with the benefit of comprehensive submissions, I have concluded that the exception does indeed confuse procedure with substance. Article 6 is concerned with procedure, not substance. In asking for the purposes of compliance with Article 6 whether a party has suffered injustice, the injustice refers to his procedural rights, not to the question whether the result of the litigation is the right result. A guilty man is entitled to a fair trial. If the Court is satisfied that the breach of Article 6 is without consequence, the question will arise whether the Court’s decision should nonetheless stand: not every breach of Article 6 invalidates the decision of the Court. But it does not follow from the fact that the result is the right one substantively that it was reached fairly.
28.	If insignificant material is not disclosed to a respondent, quite apart from MB and AF in the House of Lords, the Strasbourg decision in Botmeh and Alami shows that no breach of Article 6 arises. In a case such as the present, as mentioned above, what is not disclosed is not insignificant: it is the substance of the case. 
29.	Apart from this, a test such as that involved in Lord Brown’s exception is, so far as I am aware, not found elsewhere in our law. There is substance in Mr Otty QC’s submission that if the exception is part of our law, there need be no open evidence or open hearing at all, since everything of significance will be considered in closed session. It is a very different thing, for example, to assess whether, on a provisional basis, a claimant has a strong case, as on an interlocutory application without notice to the defendant for a search order (what was once conveniently called an Anton Piller injunction): in such a case, the defendant has a subsequent opportunity to show that the provisional view taken by the Court is wrong. In ordinary civil litigation, a party may claim that there is no defence to his claim, or that the claim against him is unsustainable and not deserving of trial: but the other party is entitled to know the case and to see the evidence against him and, with knowledge of the allegations and evidence, to be heard on that issue. An adversarial system such as ours requires that both parties know the substance of the case against them.
30.	Lastly, the test is very difficult to apply. The Court has to use its imagination to conceive what defence or arguments the respondent might put forward if he knew the case and the evidence against him, in circumstances in which it does not know and will not discover what issues the respondent would raise if the allegations against the respondent had been disclosed to him. In this respect, this case differs from a PII application in a criminal trial, in which the Court is able to keep a decision that material need not be disclosed to the defence under review in the light of any further issues subsequently raised by the defendant and developments during the trial. In a case such as the present, a decision by the Court that the Secretary of State’s case is unanswerable must lead to the confirmation of a control order. The Court may presumably have to make assumptions as to the genuineness of the evidence, or to ask itself whether it is to be accepted as genuine, (c.f. the Challenor case of 1964, to which I referred in the course of argument) even though if the evidence were disclosed it would not in fact be questioned by the respondent. In other words, does Lord Brown’s exception apply if there is any possibility, however unrealistic, of the evidence relied on by the Secretary of State having been concocted? There is always a theoretical possibility of evidence having been concocted, but happily it is rare for this to be a realistic possibility.  
31.	If the respondent’s case is that he has recanted his previous terrorist beliefs, and he gives apparently credible evidence to that effect, the Court will have to consider whether his credibility would be affected if he had had to address the undisclosed allegations against him. Lastly, the task of ensuring that the specific restrictions imposed on the respondent by the control order are necessary would have to be carried out in ignorance of what he would have said in answer to those allegations. His response to the allegations may, of course, make the case for stringent restrictions stronger rather than weaker.
32.	Notwithstanding my great respect for the authority of Lord Brown, I conclude that Article 6, as interpreted by the House of Lords in MB and AF, requires the substance of the Secretary of State’s case on which she relies to be disclosed to a respondent, with no exception, if there is to be compliance with Article 6. In other words, I respectfully agree with Mitting J’s formulation in AN cited above, but without the exception to which he referred.
The application of the exception
33.	Mr Otty QC made a number of submissions on the application of the exception, assuming it to be part of our law. I have sought to apply the exception in my closed judgment. In doing so:
(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.
Conclusion
34.	In the light of my above conclusion, subject to an appeal to the Court of Appeal, I shall put the Secretary of State to her election as to whether she wishes to disclose any further allegations or evidence. There will have to be a further hearing, after the decision of the Court of Appeal, to address the future of the present proceedings.