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
		21 October 2009

Mr Justice COLLINS :

1. The hearing before me was concerned with whether disclosure of further information to the respondent was necessary if the hearing was to comply with the obligation of fairness under Article 6 of the ECHR. It was necessary to consider how the judgment of the House of Lords in Secretary of State for the Home Department v AF [2009] UKHL 28, which was handed down on 10 June 2009, affected the case. Since how judges who deal with control orders should apply the decision in AF is of general importance and will affect all cases involving control orders, the parties deployed before me arguments dealing with what was the correct approach in general terms. In addition, Mr Otty, Q.C. put forward specific arguments based upon what was known of the allegations in open against AS submitting that he would not be able to give meaningful instructions to enable him to be able to defend himself against them without further detail being given. The Special Advocates produced a helpful written note which they did not elaborate in open court. In closed they made representations in relation to material relied on and I made rulings in relation to them. Those rulings are, of course, closed and will not be referred to in this open judgment.
2. Section 2(1) of the Prevention of Terrorism Act 2005 (the 2005 Act) enables the Secretary of State to make a non-derogatory control order against an individual if he:-

"(a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and

(b) considers that 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 that individual."

Each obligation imposed must also be necessary – see s.10 of the 2005 Act. There are thus two separate aspects to be established. First, that reasonable suspicion of past or present involvement in terrorism-related activity must exist. Secondly, it must be shown that it is necessary to impose a control order and that each of the obligations contained in it are necessary. It follows that the extent of an individual's involvement is important and so particular allegations may, if established, justify a particular obligation.

3. Mr Otty submitted that an individual must be given sufficient detail of all allegations made against him to enable him to understand them and to be able to give instructions to those representing him so that they can deal with them on his behalf. Mr Cory-Wright, Q.C. qualified this slightly by adding the adjective significant. This meant that all allegations which could affect the outcome had to be sufficiently disclosed. Mr Eicke submitted that this went too far. AF required only that those allegations which went to the core or the essence of the Secretary of State's case should be disclosed in such a way as to enable the representatives to be given effective instructions.
4. I must therefore consider what AF does require. The leading speech was given by Lord Phillips. Lords Hope, Scott and Brown and Lady Hale expressly agreed with Lord Phillip's speech but added some observations of their own. Lords Rodger and Walker agreed with Lord Phillips and add nothing of their own. Lords Hoffman and Carswell agreed in the result, in effect because the decision of the Grand Chamber of the ECtHR in A v U.K. (19.2.09) compelled them to do so. Thus of the 7 who sat on the Committee, 5 expressly agreed with Lord Phillips. It seems to me in those circumstances that I should apply his speech and his reasoning and recognise that any apparent qualifications or differing nuances which can be derived from the observations of other members of the Committee should not prevail.
5. The key paragraphs of Lord Phillips' speech are 59 and 65. They read as follows:-

"59. Contrary to Mr Eadie's submission, I am satisfied that the essence of the Grand Chamber's decision lies in paragraph 220 and, in particular, in the last sentence of that paragraph. This establishes that the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations. Where, however, the open material consists purely of general assertions and the case against the controlee is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied, however cogent the case based on closed materials may be.

65. Before A v United Kingdom, Strasbourg had made it plain that the exigencies of national security could justify non-disclosure of relevant material to a party to legal proceedings, provided that counterbalancing procedures ensured that the party was accorded a substantial measure of procedural justice. Chahal v United Kingdom (1996) 23 EHRR 413, at paragraphs 205-208, covering the withholding of material evidence and the concealing of the identity of witnesses. 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."

It is to be noted that in the first sentence of Paragraph 59 he emphasises the last sentence of Paragraph 220 of the ECtHR decision in A v U.K. This reads:-

"Where, however, the open material consisted purely of general assertions and SIAC's decision to uphold the certification and maintain the detention was based solely or to a decisive degree on closed material, the procedural requirements of Article 5(4) would not be satisfied."

A v U.K. was concerned with detention; control orders do not constitute detention and would not be lawful if they did. Article 5(4) requires the ability to determine the lawfulness of detention. However, control orders will almost inevitably engage Article 8 and probably Articles 10 and 11, each of which permits interference which is necessary, inter alia, in the interests of national security. But Article 6 applies to require a fair hearing when, as in many control orders which contain serious restrictions on those subjected to them, civil rights are in issue. And AF is concerned to determine what are the minimum requirements of disclosure to enable the controlee to have a fair hearing.

6. Paragraph 220 of A v U.K. commences as follows:-

"The Court further considers that the special advocate could perform an important role in counterbalancing the lack of full disclosure and the lack of a full, open, adversial hearing by testing the evidence and putting arguments on behalf of the detainee during the closed hearings. However, the special advocate could not perform this function in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate. While this question must be decided on a case-by-case basis, the Court observes generally that, where the evidence was to a large extent disclosed and the open material prayed the predominant role in the determination, it could not be said that the applicant was denied an opportunity effectively to challenge the reasonableness of the Secretary of State's belief and suspicions about him. In other cases, even where all or most of the underlying evidence remained undisclosed, if the allegations contained in the open material were sufficiently specific, it should have been possible for the applicant to provide his representatives and the special advocate with information with which to refute them, if such information existed, without his having to know the basis of the allegation."

The court then gave an example of an allegation of attendance at a training camp 'at a stated location between stated dates' which would suffice since he could then produce an alibi or give an innocent explanation if one existed.

7. It is, I think, important to appreciate that A was concerned only with the establishment of the necessary reasonable suspicion to justify the conclusion that A's presence here was contrary to the public good and so he should be detained pending removal. Thus the additional consideration of what obligations were needed did not arise. The reference in the last sentence of Paragraph 220 to general assertions is in distinction to the reference to a specific allegation. There is thus no conflict between the second and the last sentences of Paragraph 220. When Lord Phillips refers in Paragraph 65 to the need to know the essence of the case against him, he must be taken to mean the essence of the material allegations which are relied on to establish the reasonable suspicion and the necessity for the various obligations imposed by the order.
8. In AF a distinction is drawn between the allegations and the evidence relied on to support those allegations. In reality, that distinction may in given cases not be easy to apply since, as must be obvious, what amounts to an allegation and what amounts to evidence to support an allegation may depend on the width of the allegation. Nor would it in my view be particularly helpful to undertake that somewhat technical exercise when what is at issue is whether a hearing is fair. Much will depend on the importance of the material relied on in indicating how dangerous the individual in question is and what he has done in furtherance of his terrorist-related activities so that of the necessary obligations of the control order can be determined.
9. I do not accept Mr Otty's absolutist approach that sufficient information must be given of all allegations. But I think that Mr Cory-Wright's sub mission that all significant allegations – I would say all significant material – should be sufficiently disclosed is closer to the mark. The judge will have to decide what is material having regard both to the establishment of reasonable suspicion which justifies a control order and to the need to impose obligations under the control order. By significant, I mean material which could be regarded as essential in establishing either element of what is required for a particular control order. Thus, for example(and I should emphasise that any examples I give in this judgment are illustrations only and must not be taken necessarily to apply to this case unless I indicate that they do) if it is alleged that an individual is in contact with other suspected terrorists so that it is necessary that he be removed from the area in which he lives, the necessity for such removal is only likely to be established if at least he is able to know with whom he has been in contact so that he can explain, if he can, that it was innocent. It is possible that in particular circumstances he may need to know more if, for example, the allegation is that he was engaged with others in planning a particular sort of terrorist activity: his movements and particular observed activities may then be important.
10. Mr Eicke submitted that the starting point must be to determine in a given case what are the essential or core allegations and what details of them need to be disclosed. I do not think that this differs from what I have said in the preceding paragraphs. He has relied on observations of Lady Hale in Paragraph 103 of AF, where she said:-

"The test is whether the controlled person has had the possibility effectively to challenge the allegations against him. For this he does not have to be told all the allegations and evidence against him, but he has to have sufficient information about those allegations to be able to give effective instructions to the special advocate."

I regret to say that those two sentences do not seem to me to fit together clearly. If all she means is that sufficient disclosure is needed to enable him to deal with the essential material against him, then I have no problem and I do not think that she is qualifying in any way what Lord Phillips said. I shall assume that that is what she did mean and I do not think it detracts from the approach I have indicated to be correct.

11. Mr Eicke also referred to Lord Brown's observations in Paragraph 119 where he said:-

"Finally there is now a rigid principle. Strasbourg has chosen in Paragraph 220 of A to stipulate the need in all cases to disclose to the suspect enough about the allegations forming the sole or decisive grounds of suspicion against him to enable him to give effective instructions to the special advocate."

This observation is, of course, entirely correct in relation to A. But it cannot apply in those terms to control orders since, as I have already made clear, the need for the order and for each of the obligations within it which are determinative of civil rights has also to be established. And when in paragraph 120 Lord Brown refers to the lack of a requirement to disclose the identity of a witness against the controlled person or even of that witness's evidence, he is making the point that the evidence upon which an allegation is based need not necessarily be disclosed provided that the individual has sufficient information to enable him to give effective instructions to those representing him. In Paragraph 121 he says this:-

"Sometimes, of course, it will be impossible to separate out allegations from evidence and, in turn, evidence from its sources (whether these be informants or techniques, neither of which can be disclosed). And in those cases national security may need to give way to the interests of a fair hearing."

This, I think, reflects what I have already said.

12. It is clear that, if particular disclosure is required to enable effective instructions to be given by the controlled person, the cogency of the undisclosed material is irrelevant. Even if the judge reasonably considers that there can be no answer to the material, if it needs to be disclosed to enable a defence (however improbable) to be put forward, it must be.
13. There is in this case an allegation that the respondent attended a training camp in Afghanistan. He has made a lengthy statement in his defence in which he states that he has never attended a training camp. Mr Eicke submitted that, that being his case, no further details of when he attended the camp need be disclosed. The ECtHR suggested that 'when' was important since the individual might have an alibi defence. He may perhaps be able to show that he was in custody somewhere over the relevant period or produce cogent evidence that he was employed or was living somewhere else – a sort of alibi. Thus it may be possible for a positive defence to be advanced. Accordingly, I do not accept Mr Eicke's submission since it ignores the possibility of a positive defence if the time, which may in given cases be no more precise than a season of a particular year, is disclosed.
14. Another matter dealt with in A v U.K. concerned allegations that two of the appellants had been involved in fund-raising for terrorist groups linked to Al-Qaeda. In open there was evidence that money had been raised by fraud, but evidence of the link to terrorism was only produced in closed. This, the ECtHR decided meant that the appellants had not been able to challenge the allegation properly: see Paragraph 223 of A v U.K. I confess that I am not impressed with this reasoning. The appellants knew what they had used the money raised by fraud for and were able to disclose all documentation and to give and call evidence about it. No doubt, if this was the only allegation relied on, the link would have been central to the case against the appellants and so some disclosure would have been needed if a fair hearing was to be held. But if the fraudulent financial transactions were simply additional matters, the link could have been inferred unless an explanation of the purpose of the money raising was given. However, this perhaps only underlines the point that what needs to be disclosed depends on the facts of an individual case.
15. While the distinction between allegation and evidence may not be determinative, the submissions from the security service relied on by the Secretary of State will identify the allegations. There may be arguments about whether a particular allegation is too broad and in reality involves more than the one. But, as I have said, the exercise of identifying allegations as opposed to evidence may not be particularly useful. What matters is whether material relied on against a controlled person is such as to require that he is given sufficient information to enable him to give effective instructions to those representing him.
16. It is important to bear in mind that the information to be given is such as will enable the controlled person's representatives and the special advocates to deal with the closed material. This means that there is an obligation on the controlled person to give the necessary instructions. There is in my view great force in Lord Hope's observations in Paragraph 86 of AF where he said:-

"What will be needed is the application of this principle [sc: that the controlled person is given sufficient information to enable the special advocate effectively to challenge the case that is brought against him] will, of course, vary from case to case. The judge is entitled to take the view that a person who really does have a case to answer will make every effort to provide his special advocate with the information he needs to make the challenge."

17. In Paragraph 85 Lord Hope states:-

"The judge must insist in every case that the controlled person is given sufficient information …"

That with respect is not an entirely correct description of the judge's functions. He cannot order disclosure of material disclosure of which would compromise national security or would be contrary to the public interest. Disclosure of evidence obtained by a telephone intercept and even gisting of such evidence might be prohibited by RIPA. I say 'might be' because Mr Cory-Wright has submitted in urging the general point and not the facts of this case that such disclosure would not be unlawful, but I have heard no argument on the point. What the judge must do is to say that unless particular disclosure or gisting is given an allegation or evidence cannot be relied on by the Secretary of State. It will then (subject to the intercept argument) be for the Secretary of State to decide whether disclosure can be given or whether he has to discard the material in question.

18. At the initial 76.29 hearing, the judge will have to decide what is the minimum needed. But he should have the controlled person's answer to such allegations as are in open. That will assist him to see what more is needed. In general some indication of when there was attendance at a training camp, identification of alleged terrorist associates and at least the broad circumstances of any alleged encouragement of others to engage in terrorism related activities or preaching of extremism will be needed. These examples are not intended to be exhaustive – all will depend on what is alleged in an individual case. It will then be for the controlled person to deal with what he knows that is alleged against him. If it is apparent that he does need more, there can then, if necessary, be a further hearing. All that is required is that he receives sufficient to enable him to give effective instructions. If he chooses not to do so, he cannot insist on further disclosure and the hearing will not be unfair.
19. Mr Otty submitted, in reliance on some observations of Lady Hale that the approach hitherto adopted to 76.29 hearings was erroneous. Certainly, the balance between the need for a fair hearing and national security has since AF to come down in favour of fair hearing. But in Paragraph 105 she suggests that the objections to disclosure are often in the nature of class claims rather than focussing on what is specific to the individual case. I, and as far as I am aware, my fellow judges have always considered whether disclosure should be made on a case specific basis. Naturally, considerable weight has to be given to the view of the Secretary of State that particular disclosure would compromise national security or would not be in the public interest. Thus I do not recognise the description given by Lady Hale nor do I believe, subject only to the post-AF need to give greater weight to a fair hearing than to national security, that there has been a flawed approach adopted. Mr Otty also suggested that the Secretary of State has inappropriately delegated his responsibilities to the Security Service. This I do not accept. He is bound to listen to the advice of the Security Service: he would be failing in his duty to protect the citizens of this country from terrorism if he did not. But there is no evidence that he simply adopts their view. Indeed, it is clear from Lord Carlile of Berriew's fourth report that he does not and his predecessors have not.
20. I would finally mention one matter specific to this case. The respondent arrived in the U.K. in March 2002. For the previous 9 months or so he had been in Italy. His activities there led to his prosecution and a request from Italy for his extradition. That request was withdrawn in October 2005. The Secretary of State says this was because there was an omission by the authorities here to supply the Italians with a particular document to enable the time limits applicable in Italy to be extended. There is an issue about that which I do not need to address. In January 2007 he was convicted in absentia of some offences. The extradition request gave particulars of some of the evidence against him, including conversations resulting from intercepts. In February 2008 the Milan Court of Appeal found him guilty of offences which included terrorist association. It gave a lengthy judgment. Unfortunately, the Secretary of State did not obtain a copy of that judgment but relied on the conclusions only. That I confess I found somewhat surprising and about 12 months ago I ordered that he requested that copies of all documentary material relevant to the case against this respondent be sent. I am told that some 2000 pages have been sent and more is to come. No translation into English has been provided and in June Keith J refused an application to direct the Secretary of State to provide such translation. The Legal services Commission has refused to authorise translation on the ground, as I understand it, of excessive cost.
21. In the course of the closed hearing those advising the Secretary of State recognised that it was important at least to obtain a full translation of the Appeal court judgment which runs, I gather, to over 120 pages. That is now being done by the Secretary of State and it will be disclosed to those representing the respondent. It may give him more information and may mean that he does not need translation of some of the 2000 pages.