QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE OWEN
|The Queen on the application of Rex Cart||First Claimant|
|- and -|
|- and -|
- And -
|The Upper Tribunal
Special Immigration Appeals Commission
|The Secretary of State for Justice
||First Interested Party
|The Secretary of State for the Home Department
||Second Interested Party
|Child Maintenance & Enforcement Commission||Third Interested Party|
|Mrs Wendy Cart
||Fourth Interested Party
|The Public Law Project||Intervener
Ms Dinah Rose QC and Ms Charlotte Kilroy (instructed by Birnberg Peirce & Partners) for the 2nd Claimant
Mr Michael Fordham QC and Ms Stephanie Harrison (instructed by Birnberg Peirce & Partners) for the 3rd Claimant
Mr James Eadie QC and Mr Sam Grodzinski (instructed by The Treasury Solicitor and The Office of the Solicitor) for the 1st Defendant and 1st & 2nd Interested Parties
Mr Robin Tam QC and Mr Jonathan Glasson (instructed by Treasury Solicitors) for the
1st and 2nd Interested Parties)
Mr Michael Fordham QC and Mr Tim Buley (instructed by The Public Law Project ) for the 1st Intervener
Hearing dates: 21, 22 September & 13 October 2009
Crown Copyright ©
Lord Justice Laws :
"[SIAC] shall be a superior court of record."
S.3(5) of the Tribunals, Courts and Enforcement Act 2007 (TCEA) provides:
"[UT] is to be a superior court of record."
II: THE STATUTES
The Special Immigration Appeals Commission Act 1997
"(1) There shall be a commission, known as the Special Immigration Appeals Commission, for the purpose of exercising the jurisdiction conferred by this Act.
(2) Schedule 1 to this Act shall have effect in relation to the Commission."
Schedule 1 contains these provisions:
"5 The Commission shall be deemed to be duly constituted if it consists of three members of whom—
(a) at least one holds or has held high judicial office (within the meaning of the Appellate Jurisdiction Act 1876), and
(b) at least one is or has been—
(i) appointed as chief adjudicator under paragraph 1 of Schedule 5 to the Immigration Act 1971, or
(ii) a member of the Immigration Appeal Tribunal qualified as mentioned in paragraph 7 of that Schedule.
6 The chairman or, in his absence, such other member of the Commission as he may nominate, shall preside at sittings of the Commission and report its decisions."
"(1) The Special Immigration Appeals Commission on an appeal to it under this Act—
(a) shall allow the appeal if it considers—
(i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case, or
(ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently, and
(b) in any other case, shall dismiss the appeal."
The process of a SIAC appeal, however, was and is very distinct. Rules of procedure facilitate the scrutiny of confidential material on an appellant's behalf by a special advocate, even though for security reasons the material cannot be disclosed to the appellant himself. This signal feature is the substantial justification for the establishment of SIAC and for its jurisdiction in security cases to hear appeals whose analogues in non-security cases are routinely heard by the AIT.
"(a) if of the opinion that that person has broken or is likely to break any condition on which he was released, may either -
(i) direct that he be detained under the authority of the person by whom he was arrested ; or
(ii) release him, on his original recognizance or on a new recognizance, with or without sureties…; and
(b) if not of that opinion, shall release him on his original recognizance or bail."
SIAC's Procedure Rules (paragraph 5) allow for applications relating to bail to be heard by a single member, who must be legally qualified but need not be a serving or retired High Court Judge.
"(3) The Commission shall be a superior court of record.
(4) A decision of the Commission shall be questioned in legal proceedings only in accordance with—
(a) section 7, or
(b) section 30(5)(a) of the Anti-terrorism, Crime and Security Act 2001 (derogation)."
S.30(5)(a) concerned derogations by the United Kingdom from ECHR Article 5(1). SIACA s.7 provides in part:
"(1) Where the Special Immigration Appeals Commission has made a final determination of an appeal, any party to the appeal may bring a further appeal to the appropriate appeal court on any question of law material to that determination.
(2) An appeal under this section may be brought only with the leave of the Commission or, if such leave is refused, with the leave of the appropriate appeal court.
(3) In this section 'the appropriate appeal court' means—
(a) in relation to a determination made by the Commission in England and Wales, the Court of Appeal..."
It is common ground that a decision of SIAC to refuse or revoke bail is not an appealable decision within the meaning of s.7. It follows that if judicial review is not available, there is no further recourse to any court of the United Kingdom against such a decision.
The Tribunals, Courts and Enforcement Act 2007
"(1) There is to be a tribunal, known as the First-tier Tribunal, for the purpose of exercising the functions conferred on it under or by virtue of this Act or any other Act.
(2) There is to be a tribunal, known as the Upper Tribunal, for the purpose of exercising the functions conferred on it under or by virtue of this Act or any other Act.
(3) Each of the First-tier Tribunal, and the Upper Tribunal, is to consist of its judges and other members.
(4) The Senior President of Tribunals is to preside over both of the First-tier Tribunal and the Upper Tribunal.
(5) The Upper Tribunal is to be a superior court of record."
"The Lord Chancellor may, with the concurrence of the Senior President of Tribunals, by order make provision for the organisation of each of the First-tier Tribunal and the Upper Tribunal into a number of chambers."
This is the mechanism by which the previously disparate tribunal jurisdictions have been (or are being) organised into a single juridical structure. FTT has six chambers: the War Pensions and Armed Forces Compensation Chamber, the Health, Education and Social Care Chamber, the General Regulatory Chamber, the Tax Chamber, the Social Entitlement Chamber and the Immigration and Asylum Chamber (this is still forthcoming: it is expected to be established in February 2010). But this short list conceals the great range of tribunals existing pre-TCEA whose jurisdiction has been transferred to FTT by orders made by the Lord Chancellor under TCEA s.30. Though the War Pensions and Armed Forces Compensation Chamber succeeds only to the jurisdiction of the Pension Appeals Tribunal (England and Wales), the Health, Education and Social Care Chamber succeeds to the jurisdiction of thirteen previous tribunals (six of them effective from January 2010). They include tribunals which dealt with mental health, estate agents, charities and transport. The Tax Chamber takes over from the General and Special Commissioners of Income Tax and the VAT & Duties Tribunal. The Social Entitlement Chamber succeeds to the Social Security and Child Support Appeal Tribunals, the Criminal Injuries Compensation Panel, and the Asylum Support Tribunal. The Immigration and Asylum Chamber will take over from the AIT.
Now there is a unified appeal structure. It is not yet complete. As I have indicated, some transfers to FTT are scheduled for 2010. In due course further chambers may be established. We are for instance told that a FTT Lands Chamber is in contemplation. But in any event it is clear that the appeal provisions of TCEA give effect to a strategic reorganisation of the law administered by statutory tribunals.
Members of the Upper Tribunal
III: THE FACTS
"If the House of Lords grants permission on the two identified grounds then we would consider it wholly reasonable for any Algerian appellant in detention to make a fresh application for bail which the Commission would attempt to determine at the earliest possible opportunity."
The House of Lords granted leave to appeal to U on 11 March 2008. Together with other Algerians detained pending deportation on national security grounds he applied for bail. The Secretary of State did not oppose the application but sought U's admission to bail at an address in Liverpool on a 22 hour curfew. U proposed an address in Brighton. For reasons not disclosed at the time the Secretary of State objected to the Brighton address. On 30 April 2008 SIAC ordered that U be released on bail to the Brighton address subject to stringent conditions including a 24 hour curfew. On 15 January 2009 a minor relaxation was allowed, permitting U to take twice-weekly accompanied walks of one hour.
"For the reasons which are wholly set out in the closed judgment, we are satisfied that the risk that U will breach his bail conditions has significantly increased."
"We have taken into account significant closed material which has not been gisted [sic] to the appellant in reaching our decision."
It was made abundantly plain that the basis of the Secretary of State's national security case was entirely to be found in closed evidence.
IV: THE JURISDICTION ISSUE
(1) Exclusion of Judicial Review by Statute
"All the authorities to which we have been referred indicate that this remains true today. The weight of authority makes it impossible to accept that the jurisdiction to subject a decision to judicial review can be removed by statutory implication."
"Judicial review is the exercise of the court's inherent power at common law to determine whether action is lawful or not; in a word to uphold the rule of law" (Ex p. Vijayatunga  QB 322 per Simon Brown J as he then was at 343E – F).
(2) Superior Court of Record
(a) Primacy of the King's Bench
"The jurisdiction of this court is very high and transcendent. It keeps inferior jurisdictions within the bounds of their authority."
Holdsworth (History of English Law vol 1, p.212), referring to Coke's Fourth Institute, described the supremacy of the King's Bench over other courts as follows:
"It has jurisdiction 'to examine and correct all and all manner of errors in fact and in law of all the judges and justices of the realm in their judgments, process, and proceedings in courts of record, and not only in pleas of the crown, but in all pleas, real, personal and mixt, the court of Exchequer excepted as hereafter shall appear.'"
"[T]here is no Court whatsoever but is to be corrected by this Court [sc. the King's Bench]."
Later, in Groenwelt v Burwell (1695) 1 Salk 144, a case concerning the application of the writ of certiorari to a judgment of the censors of the College of Physicians relating to an allegation of malpractice, Holt CJ stated:
"[N]o Court can be intended exempt from the superintendency of the King in this Court of [Banco Regis]. It is a consequence of every inferior jurisdiction of record, that their proceedings be removeable into this Court, to inspect the record, and see whether they keep themselves within the limits of their jurisdiction."
"We here in this Court may prohibit any Court whatsoever, if they transgress and exceed their jurisdiction. And there is not any Court in Westminster-Hall but may be by us here prohibited, if they do exceed their jurisdictions, and all this is clear and without any question."
Compare James' Case (1631) Hob 17 and Case of the Company of Horners in London (1642) 2 Roll. R 471.
"I think I am entitled to say this, that my view of the power of prohibition at the present day is that the Court should not be chary of exercising it, and that wherever the legislature entrusts to any body of persons other than to the superior Courts the power of imposing an obligation upon individuals, the Courts ought to exercise as widely as they can the power of controlling those bodies of persons if those persons admittedly attempt to exercise powers beyond the powers given to them by Act of Parliament."
Then in R v Justices of the Central Criminal Court, ex parte London County Council  2 KB 43, where the question was whether the High Court had jurisdiction to issue a writ of certiorari for the purpose of removing into that Court an order of the Central Criminal Court with a view to it being quashed, Lord Hewart CJ sitting in this court said after reviewing the authorities:
"To put these judgments together and to consider them in the light of s16 of the Judicature Act 1873 (36 & 37 Vict c66), one may express the conclusion which they support in this way: judges of assize exercise powers upon the same plane with the powers exercised by judges of the High Court in that Court; the Central Criminal Court is a Court of not less authority than a Court of assize; the Central Criminal Court is, therefore, a superior Court, and a writ of certiorari from the King's Bench Division does not lie to it for the purpose of quashing its order." (see also Avory J at 61-62)
(b) Three Distinctions
(b)(1) The First Distinction
"The chief distinctions between superior and inferior courts are found in connection with jurisdiction. Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular manner is within the cognisance of the particular court. An objection to the jurisdiction of one of the superior courts of general jurisdiction must show what other court has jurisdiction, so as to make it clear that the exercise by the superior court of its general jurisdiction is unnecessary. The High Court, for example, is a court of universal jurisdiction and superintendency in certain classes of claims, and cannot be deprived of its ascendancy by showing that some other court could have entertained the particular claim. In an inferior court, other than a county court, unless the proceedings show on their face that the cause of action arose within its jurisdiction, the claim cannot be maintained, and even in inferior courts with a local limit of jurisdiction it must appear that such limit is not being exceeded."
"One of the matters most in controversy, both in the Divisional Court and here, was the question whether the ecclesiastical courts were and are inferior courts. And the more this matter was investigated the clearer it became that the word 'inferior' as applied to courts of law in England had been used with at least two very different meanings. If, as some assert, the question of inferiority is determined by ascertaining whether the court in question can be stopped from exceeding its jurisdiction by a writ of prohibition issuing from the King's Bench, then not only the ecclesiastical courts, but also Palatine courts and Admiralty courts are inferior courts. But there is another test, well recognized by lawyers, by which to distinguish a superior from an inferior court, namely, whether in its proceedings, and in particular in its judgments, it must appear that the court was acting within its jurisdiction. This is the characteristic of an inferior court, whereas in the proceedings of a superior court it will be presumed that it acted within its jurisdiction unless the contrary should appear either on the face of the proceedings or aliunde...
Wrottesley LJ referred to some of the old courts of limited jurisdiction, and continued:
"These are only some of the many courts of limited jurisdiction which existed and sometimes flourished side by side with King's Bench, Common Pleas, Exchequer and later the Chancery Courts: see Holdsworth's History of English law, vol. 1, passim. But all these limited jurisdictions were subject to the jurisdiction of the King's Bench in this respect, that if they transgressed their limits, the writ of prohibition would go to put an end to the proceedings and to prohibit both judges and parties from taking any steps to enforce anything that had been done."
(b)(2) The Second Distinction
"The Administrative Court will have no role at all in relation to decisions of the Upper Tribunal, which as [a] superior court of record falls entirely outside the supervisory jurisdiction."
(b)(3) The Third Distinction
"… Judicial review is available as a remedy for mistakes of law made by inferior courts and tribunals only. Mistakes of law made by judges of the High Court acting in their capacity as such can be corrected only by means of appeal to an appellate court; and if, as in the instant case, the statute provides that the judge's decision shall not be appealable, they cannot be corrected at all." (384, per Lord Diplock)
"… the High Court is not an inferior tribunal. It is one of Her Majesty's courts of law. It is a superior court of record. It was not, in the past, subject to control by prerogative writ or order, nor today is it subject to the judicial review which has taken their place." (392, per Lord Scarman)
"There is in my view, however, also an obvious distinction between jurisdiction conferred by a statute on a court of law of limited jurisdiction to decide a defined question finally and conclusively or unappealably, and a similar jurisdiction conferred on the High Court or a judge of the High Court acting in his judicial capacity. The High Court is not a court of limited jurisdiction and its constitutional role includes the interpretation of written laws. There is thus no room for the inference that Parliament did not intend the High Court or the judge of the High Court acting in his judicial capacity to be entitled and, indeed, required to construe the words of the statute by which the question submitted to his decision was defined. There is simply no room for error going to his jurisdiction, nor, as is conceded by counsel for the respondent, is there any room for judicial review. Judicial review is available as a remedy for mistakes of law made by inferior courts and tribunals only. Mistakes of law made by judges of the High Court acting in their capacity as such can be corrected only by means of appeal to an appellate court; and if, as in the instant case, the statute provides that the judge's decision shall not be appealable, they cannot be corrected at all."
Then at p.386A-B Lord Salmon stated:
"The Court of Appeal… relied strongly on the decision of your Lordships' House in Anisminic Ltd. v Foreign Compensation Commission  2 AC 147. That decision, however, was not, in my respectful view, in any way relevant to the present appeal. It has no application to any decision or order made at first instance in the High Court of Justice. It is confined to decisions made by commissioners, tribunals or inferior courts which can now be reviewed by the High Court of Justice - just as the decisions of inferior courts used to be reviewed by the old court of King's Bench under the prerogative writs. If and when any such review is made by the High Court, it can be appealed to the Court of Appeal and thence, by leave, to your Lordships' House.
The jurisdiction of the Court of Appeal is defined by statute. It has no jurisdiction to make a judicial review of a decision of the High Court."
"From these cases, it is difficult to extract any precise principle. The most that can be said is that it is necessary to look at all the relevant features of the tribunal in question including its constitution, jurisdiction and powers and its relationship with the High Court in order to decide whether the tribunal should properly be regarded as inferior to the High Court, so that its activities may appropriately be the subject of judicial review by the High Court. As we have already indicated, in considering that question the fact (if it be the case) that the tribunal is presided over by a High Court judge is a relevant factor, though not conclusive against the tribunal being classified as an inferior court; just as relevant are the powers of the tribunal and its relationship with the High Court which can ordinarily be ascertained from the statute under which the tribunal is set up. But, as is demonstrated in particular by the approach adopted by the Court of Appeal in R v Chancellor of St Edmundsbury and Ipswich Diocese, ex parte White  1 KB 195, and by the Privy Council in Colonial Bank of Australasia v Willan, LR 5 PC 417 (following and adopting the view of Lord Holt in R v Inhabitants of Glamorganshire, 1 Ld Raym 580), there is an underlying policy in the case of tribunals of limited jurisdiction, whether limited by area, subject matter or otherwise, that unless the tribunal in question should properly be regarded in all the circumstances as having a status so closely equivalent to the High Court that the exercise of the power of judicial review by the High Court is for that reason inappropriate, it is in the public interest that remedies by way of judicial review by the High Court should be available to persons aggrieved; though in some cases there may be special reasons why such remedy should be available only to curb an excess of jurisdiction but not to review and correct an error of law committed within the jurisdiction."
(3) The Common Law
"But there is no similar presumption [sc. to that which applies to administrative decision-makers] that where a decision-making power is conferred by statute upon a court of law, Parliament did not intend to confer upon it power to decide questions of law as well as questions of fact. Whether it did or not and, in the case of inferior courts, what limits are imposed on the kinds of questions of law they are empowered to decide, depends upon the construction of the statute unencumbered by any such presumption. In the case of inferior courts where the decision of the court is made final and conclusive by the statute, this may involve the survival of those subtle distinctions formerly drawn between errors of law which go to jurisdiction and errors of law which do not that did so much to confuse English administrative law before Anisminic  2 AC 147; but upon any application for judicial review of a decision of an inferior court in a matter which involves, as so many do, interrelated questions of law, fact and degree the superior court conducting the review should not be astute to hold that Parliament did not intend the inferior court to have jurisdiction to decide for itself the meaning of ordinary words used in the statute to define the question which it has to decide."
I should say that I do not, with respect, regard this passage as contradicting my conclusion (paragraphs 36 and 38) that the rule of law requires that statute should be mediated by an authoritative and independent judicial source; and Parliament's sovereignty requires that it respect this rule. Lord Diplock was not in Racal considering the force or effect of any ouster clause, and as I have shown (paragraph 67) the issue in the case was, in effect, whether the Court of Appeal had the power to entertain a form of judicial review over the High Court.
"SIAC is a court of very limited jurisdiction. It is not easy to accept that, if SIAC purports to exercise a jurisdiction that does not exist, Parliament has excluded all possibility of putting the matter right. What if section 24 had provided that 'a suspected international terrorist who is detained may not be released on bail'? Would there be no remedy if SIAC purported to grant bail?"
However the matter had not been fully argued and was not then finally determined. The case was adjourned for further submissions, but in the event, for reasons which do not concern us, it was not restored in court. It is clear (at least) that there is nothing in G to suggest that SIAC might be immune from judicial review.
(2) The Claimant's Submissions
(3) Principal Conclusion
"53... There is a right to seek permission to appeal against such decisions [sc. of district judges in county courts], and to renew the application at an oral hearing if it is refused on paper. The decision challenged will, in this way, be open to review by a Judge. That review can consider any challenge that is made to the jurisdiction of the Judge below. It can also consider the merits of any attack that may be made on the conclusions of the Judge below in relation to any matter, be it fact, law or the basis upon which a discretion has been exercised. If grounds for appeal are held to exist, a full appeal will follow.
54. This scheme we consider provides the litigant with fair, adequate and proportionate protection against the risk that the Judge of the lower court may have acted without jurisdiction or fallen into error. The substantive issue will have been considered by a Judge of a court at two levels. On what basis can it be argued that the decision of the Judge of the appeal court should be open to further judicial review? The answer, as a matter of jurisprudential theory is that the Judge in question has limited statutory jurisdiction and that it must be open to the High Court to review whether that jurisdiction has been exceeded. But the possibility that a Circuit Judge may exceed his jurisdiction, in the narrow pre Anisminic sense, where that jurisdiction is the statutory power to determine an application for permission to appeal from the decision of a District Judge, is patently unlikely. In such circumstances an application for judicial review is likely to be founded on the assertion by the litigant that the Circuit Judge was wrong to conclude that the attack on the decision of the District Judge was without merit. The attack is likely to be misconceived, as exemplified by the cases before us. We do not consider that Judges of the Administrative Court should be required to devote time to considering applications for permission to claim judicial review on grounds such as these. They should dismiss them summarily in the exercise of their discretion. The ground for so doing is that Parliament has put in place an adequate system for the reviewing the merits of decisions made by District Judges and it is not appropriate that there should be further review of these by the High Court...
55. Everything that we have said should be applied equally to an application for permission to claim judicial review of the decision of a Judge of the County Court granting permission to appeal. We are not aware that such an application has yet been made.
56. The possibility remains that there may be very rare cases where a litigant challenges the jurisdiction of a Circuit Judge giving or refusing permission to appeal on the ground of jurisdictional error in the narrow, pre-Anisminic sense, or procedural irregularity of such a kind as to constitute a denial of the applicant's right to a fair hearing. If such grounds are made out we consider that a proper case for judicial review will have been established."
"How should such a defect be described in principle? I think a distinction may be drawn between a case where the judge simply gets it wrong, even extremely wrong (and wrong on the law, or the facts, or both), and a case where, as I would venture to put it, the judicial process itself has been frustrated or corrupted. This, I think, marks the truly exceptional case. It will or may include the case of pre-Anisminic jurisdictional error... It would include substantial denial of the right to a fair hearing..."
I hope it is clear from the context that the reference there to a "substantial denial of the right to a fair hearing" was intended only to denote the case where there has been a wholly exceptional collapse of fair procedure: something as gross as actual bias on the part of the tribunal.
V: THE ARTICLE 5(4) ISSUE
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
I should also set out the first sentence of Article 6(1):
"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."
As I have indicated (paragraphs 23 and 25) SIAC's decisions to revoke U's bail and to refuse bail to XC, taken on 20 March 2009 and 21 May 2009 respectively, were wholly based on closed evidence. The decisions are prima facie lawful (SIACA s.3 and ECHR Article 5(1)(f), which I need not cite). In neither case, however, had the evidence been "gisted" (to use the barbarism apparently in vogue) to the claimant. Do those facts disclose violations of Article 5(4)?
"Article 5 § 4 imported the fair trial guarantees of Article 6 § 1 commensurate with the gravity of the issue at stake. While in certain circumstances it might be permissible for a court to sanction non-disclosure of relevant evidence to an individual on grounds of national security, it could never be permissible for a court assessing the lawfulness of detention to rely on such material where it bore decisively on the case the detained person had to meet and where it had not been disclosed, even in gist or summary form, sufficiently to enable the individual to know the case against him and to respond." (judgment, paragraph 195)
The government submitted (paragraph 197) that "there were valid public interest grounds for withholding the closed material. The right to disclosure of evidence, under Article 6 and also under Article 5 § 4, was not absolute". After considering its earlier case-law, including Chahal (1997) 23 EHRR 413, the Strasbourg court stated:
"217… [I]n the circumstances of the present case, and in view of the dramatic impact of the lengthy - and what appeared at that time to be indefinite - deprivation of liberty on the applicants' fundamental rights, Article 5 § 4 must import substantially the same fair trial guarantees as Article 6 § 1 in its criminal aspect (Garcia Alva v. Germany, no. 23541/94, § 39, 13 February 2001 and see also see Chahal, cited above, §§ 130-131).
218. Against this background, it was essential that as much information about the allegations and evidence against each applicant was disclosed as was possible without compromising national security or the safety of others. Where full disclosure was not possible, Article 5 § 4 required that the difficulties this caused were counterbalanced in such a way that each applicant still had the possibility effectively to challenge the allegations against him.
219. The Court considers that SIAC, which was a fully independent court… and which could examine all the relevant evidence, both closed and open, was best placed to ensure that no material was unnecessarily withheld from the detainee. In this connection, the special advocate could provide an important, additional safeguard through questioning the State's witnesses on the need for secrecy and through making submissions to the judge regarding the case for additional disclosure. On the material before it, the Court has no basis to find that excessive and unjustified secrecy was employed in respect of any of the applicants' appeals or that there were not compelling reasons for the lack of disclosure in each case.
220. 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, adversarial 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 played 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 detail or sources of the evidence which formed the basis of the allegations. An example would be the allegation made against several of the applicants that they had attended a terrorist training camp at a stated location between stated dates; given the precise nature of the allegation, it would have been possible for the applicant to provide the special advocate with exonerating evidence, for example of an alibi or of an alternative explanation for his presence there, sufficient to permit the advocate effectively to challenge the allegation. 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."
Applying this approach the court found violations of Article 5(4) in some (but not all) of the applicants' cases.
"[T]he live issue to which the closed material served by the Secretary of State relates will often be the risk of absconding. It is likely to be of such a nature that it cannot be disclosed to the appellant without grave damage to the public interest. However, it is not being deployed to support detention for an indefinite period, nor for a purpose unconnected with Article 5.1(f). The period is defined by the time which it will take to determine an appeal and/or application initiated by the appellant. It is truly a measure ancillary to the purpose identified in Article 5.1(f) and not, as in the case of A & Others v UK, an end in itself. Accordingly, there is no true analogy between these proceedings and detention on remand in criminal proceedings of the kind which persuaded the Strasbourg Court that substantially the same fair trial guarantees were imported as those which applied to criminal proceedings by Article 6.1: paragraph 217. Finally even if we had been persuaded that the analogy was so close that we had to have regard to it under section 2(1)(a) of the Human Rights Act 1998, we would be bound, or at least prefer, to follow the guidance of Lord Bingham in R (Ullah) v Special Adjudicator  UKHL 26 at [paragraph] 20, as qualified by Lord Brown in R (Al-Skeini) v Secretary of State  UKHL 26 at paragraph 106, that it is our duty to keep pace with the Strasbourg jurisprudence, but no more. We are not convinced that, faced with the problem which this judgment addresses, the Strasbourg Court would give the same answer as it did in A & Others v UK."
I have already (paragraph 22) cited the conclusion of Mitting J's judgment:
"44. For the reasons which are wholly set out in the closed judgment, we are satisfied that the risk that U will breach his bail conditions has significantly increased."
There is no separate reasoning I need cite from Mitting J's judgment in XC given on 21 May 2009.
"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 of control orders, where the relevant proceedings were subject to article 6 in its civil aspect. As a general submission there may be 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. Were this not the case, it is hard to see why the Grand Chamber quoted so extensively from control order cases. I turn to the effect of the Grand Chamber's decision."
"81. In para 218 the Grand Chamber said that where full disclosure was not possible, article 5(4) required that the difficulties that this causes must be counterbalanced in such a way that the applicant still has the possibility effectively to challenge the allegations against him. In para 220 it said that, where the open material consisted purely of general assertions and the court's decision was based solely or to a decisive degree on closed material, the procedural requirements of article 5(4) would not be satisfied. The controlled person must be given sufficient information about the allegations against him to give effective instructions to the special advocate. This is the bottom line, or the core irreducible minimum as it was put in argument, that cannot be shifted."
"The requirement of procedural fairness under Article 5 § 4 does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. Although it is not always necessary that an Article 5 § 4 procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question..."
Mr Justice Owen:
Note 1 Professor Sir David Williams QC died on 6 September 2009, just over a fortnight before the first day of argument in this case. He is mourned by lawyers and by many others, not only for his conspicuous intellectual gifts, but also for his warmth and his humour, which lightened many assemblies. [Back]
Note 1 Professor Sir David Williams QC died on 6 September 2009, just over a fortnight before the first day of argument in this case. He is mourned by lawyers and by many others, not only for his conspicuous intellectual gifts, but also for his warmth and his humour, which lightened many assemblies. [Back]