QUEEN'S BENCH DIVISION
IN THE MATTER OF SECTION 10(1) OF
THE PREVENTION OF TERRORISM ACT 2005
Strand, London, WC2A 2LL
B e f o r e :
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
(instructed by BIRNBERG PEIRCE & PARTNERS SOLICITORS) for the Appellant
MR JONATHAN HALL & MISS KATHERINE GRANGE
(instructed by THE TREASURY SOLICITOR) for the Respondent
MR MOHAMMED KHAMISA QC
(instructed by THE TREASURY SOLICITOR SPECIAL ADVOCATE SUPPORT OFFICE) as Special Advocates
Hearing dates: 12th & 22nd June 2009
Crown Copyright ©
MR JUSTICE MITTING :
The first issue: does Article 6(1) ECHR apply to this appeal?
The second issue: what, by way of disclosure, does Article 6 require?
"The Grand Chamber has now made clear that non-disclosure cannot go so far as to deny a party knowledge of the essence of the case against him, at least where he is at risk of consequences as severe as those normally imposed under a control order."
Taken in isolation, this observation, just, leaves room for the argument advanced by Mr Hall. But it must be read in the light of what Lord Phillips said in paragraph 57:
"The requirements of a fair trial depend, to some extent, on what is at stake in the trial. The Grand Chamber was dealing with applicants complaining of detention contrary to Article 5(1). The relevant standard of fairness required of their trials was that appropriate to Article 5(4) proceedings. The Grand Chamber considered, having regard to the length of the detention involved, that Article 5(4) imported the same fair trial rights as Article 6(1) in its criminal aspect see paragraph 217. Mr Eadie submitted that a less stringent standard of fairness was applicable in respect control orders, where the relevant proceedings were subject to Article 6 in its civil aspect. As a general submission there may some force in this, at least where the restrictions imposed by a control order fall far short of detention. But I do not consider that the Strasbourg Court would draw any such distinction when dealing with the minimum of disclosure necessary for a fair trial."
The less stringent standard to which Lord Phillips referred was illustrated by him in paragraph 66: it may be acceptable not to disclose the source of evidence founding the grounds of suspicion of involvement in terrorism-related activities. Not so in a criminal trial, when the evidence is determinative. But, in paragraph 57, Lord Phillips expressly rejected the proposition that the Strasbourg Court would draw any distinction between Article 6 in its criminal aspect and in its civil aspect "when dealing with the minimum of disclosure necessary for a fair trial". Each required that the controlled person must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations: paragraph 59.
" to determine whether the following decision of the Secretary of State was flawed
(a) in the case of an appeal against a modification, his decision that the modification is necessary ".
What I have decided is that the open material is not capable of supporting the decision. That is not the test which Parliament intended. Nor is it a satisfactory basis upon which to determine the rationality and proportionality of a decision properly made in the public interest by the Secretary of State. It is, however, the inevitable result of applying the principles clearly identified by the Appellate Committee in AF.