Secretary of State for the Home Department v. MB (FC) (Appellant)
HOUSE OF LORDS
 UKHL 46
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Secretary of State for the Home Department (Respondent) v.
MB (FC) (Appellant)
Secretary of State for the Home Department (Respondent) v.
AF (FC) (Appellant) (Civil Appeal from Her Majesty's High Court of Justice)
Secretary of State for the Home Department (Appellant) v.
AF (FC) (Respondent) (Civil Appeal from Her Majesty's High Court of Justice)
Lord Bingham of Cornhill
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
MB: Tim Owen QC
(Instructed by Arani & Co)
AF: Timothy Otty QC
(Instructed by Middleweeks)
Ian Burnett QC
Philip Sales QC
(Instructed by Treasury Solicitor)
Michael Fordham QC and Tom Hickman
(Instructed by Clifford Chance)
Michael Supperstone QC and Judith Farbey
(Instructed by Special Advocates' Support Office)
5, 9, 10, 11, 12 and 13 July 2007ON
WEDNESDAY 31 OCTOBER 2007
LORD BINGHAM OF CORNHILL
|Issue (1):||Whether the cumulative impact of the obligations imposed on AF by the control order dated 11 September 2006 and pursuant to the 2005 Act amounted to a deprivation of liberty within the meaning of article 5(1) of the European Convention.|
|Issue (2):||If the answer to issue (1) is in the affirmative, in circumstances where the court is satisfied that the Secretary of State was entitled to conclude that there is a reasonable suspicion that AF is or has been involved in terrorist-related activity and that it was necessary to make a control order imposing obligations on AF for purposes connected with protecting members of the public from a risk of terrorism, whether it is a proper exercise of the discretion under section 3(12) of the 2005 Act or generally to order that a control order should be quashed as a whole and ab initio rather than to quash individual obligations and/or direct the Secretary of State to modify individual obligations|
|Issue (3):||Whether a non-derogating control order imposed under the 2005 Act constitutes a criminal charge for the purposes of Article 6 of the European Convention.|
|Issue (4):||Whether the procedures provided for by section 3 of the 2005 Act and the Rules of Court are compatible with article 6 of the Convention in circumstances where they have resulted in the case made against AF being in its essence entirely undisclosed to him and in no specific allegation of terrorism-related activity being contained in open material.|
The judge decided issues (1) and (2) in favour of AF and adversely to the Secretary of State, who appeals against those rulings. He decided issues (3) and (4) in favour of the Secretary of State and adversely to AF, who cross-appeals against those. In his separate appeal, MB complains that in relying heavily on material not disclosed to him to support the control order against him the Court of Appeal acted incompatibly with article 6 and so unlawfully. Thus, despite factual differences between their cases, MB supports the argument of AF on issue (4), as do JUSTICE and Liberty (although Liberty intervene only in the case of Secretary of State for the Home Department v E and S  UKHL 47).
Before confirming a derogating control order under section 4(7) the court must first be
The article continues in paragraphs (2) and (3) to identify certain rights specific to those who have been charged with a criminal offence. These include the presumption of innocence (para (2)) and certain minimum rights, among them rights (para (3))
But, as the Council of Europe Commissioner for Human Rights pointed out in his Report of 8 June 2005, para 20, and the Joint Committee (para 52 of its report) agreed, the obligations imposed by a derogating control order differ from those in a non-derogating control order only in their degree of severity, and "It would be curious if at least immediately below this most extreme sanction, there were not other limitations or restrictions of sufficient severity to warrant the classification of the obligations as tantamount to a criminal penalty."
Thus if or when the relevant authority decides not to prosecute and there is no possibility of conviction or penalty, there are then no criminal proceedings: S v Miller 2001 SC 977, paras 20, 23; R (R) v Durham Constabulary  UKHL 21,  1 WLR 1184, para 14. For present purposes, however, guidance on the distinction between determination of a civil right and obligation and determination of a criminal charge is to be found in the Strasbourg jurisprudence, and in particular in the leading case of Engel, above, para 82.
For understandable reasons the Secretary of State lays particular stress on the first of these guideline principles, the controlled persons (MB and AF) on the second. As observed in R v H  UKHL 3,  2 AC 134, para 23, "The problem of reconciling an individual defendant's right to a fair trial with such secrecy as is necessary in a democratic society in the interests of national security or the prevention or investigation of crime is inevitably difficult to resolve in a liberal society governed by the rule of law." It is the problem with which Parliament grappled in the 2005 Act, and with which the House is confronted in these appeals.
In that paragraph reference is made to a number of Convention cases, some of them mentioned below. But the controlled persons submit with some force that the Secretary of State's qualified acceptance does less than justice to the fundamental principle here in issue.
Lord Morris of Borth-y-Gest repeated this ruling in Ridge v Baldwin  AC 40, 113-114:
Much more recently, and in a Convention context, Lord Hope described the right to a fair trial as "fundamental and absolute" (Brown v Stott (Procurator Fiscal, Dunfermline)  1 AC 681, 719) and in DS v Her Majesty's Advocate  UKPC D1 (22 May 2007, unreported), para 17, Lord Hope referred to and reaffirmed earlier observations to the effect that "the overriding right guaranteed by article 6(1) was a fundamental right which did not admit of any balancing exercise, and that the public interest could never be invoked to deny that right to anybody in any circumstances."
That right was not absolute and might be limited in the interests of national security (paras 57-58) but (para 64):
In the recent case of Hamdi v Rumsfeld 542 US 507 (2004), O'Connor J, writing for the majority, said (p 533):
In McMichael v United Kingdom (1995) 20 EHRR 205, para 80, a family case concerning a child, the court said
Lobo Machado v Portugal (1996) 23 EHRR 79 was a civil case concerning the applicant's right, in an adversarial hearing, to see and reply to material before the court. "That right", the court ruled (para 31),
In Van Mechelen v Netherlands (1997) 25 EHRR 647, para 51, a criminal case, the court ruled:
In Garcia Alva v Germany (2001) 37 EHRR 335, para 42, another criminal case, the court said:
The court has not been insensitive to the special problems posed to national security by terrorism: see, for instance, Murray v United Kingdom (1994) 19 EHRR 193, paras 47, 58. It has (as it was said in Brown v Stott, above, p 704) eschewed the formulation of hard-edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or the circumstances, and has recognised the need for a fair balance between the general interest of the community and the rights of the individual. But even in cases where article 6(1) has not been in issue, the court has required that the subject of a potentially adverse decision enjoy a substantial measure or degree of procedural justice: see Chahal v United Kingdom (1996) 23 EHRR 413, para 131; Al-Nashif v Bulgaria (2002) 36 EHRR 655, para 97. In Tinnelly & Sons Ltd and McElduff & Others v United Kingdom (1998) 27 EHRR 249, para 72, the court held that any limitation of the individual's implied right of access to the court must not impair the very essence of the right.
The Secretary of State's application was also supported by a closed statement and further documents and an application to withhold the closed material. Permission was granted, subject to minor amendments, under section 3(2)(b) of the Act, and the order was made on 5 September 2005. The obligations imposed on MB by this order, plainly directed to preventing him leaving the country, were very much less stringent than in the cases of JJ and others, E and AF. Thus he was obliged to live at a specified address, to report to his local police station daily and to surrender his passport, and was forbidden to leave the UK or enter any airport or sea port, but he was otherwise subject to no geographical restriction, was subject to no curfew and was subject to no restriction on his social contacts. MB served a witness statement and the Secretary of State served a second open statement, which added little, and a second closed statement. The special advocate appointed to represent MB's interests did not challenge the Secretary of State's application to withhold the closed material, and accepted that it would not be possible to serve a summary which would not contain information or material the disclosure of which would be contrary to the public interest. The hearing under section 3(10) of the Act took place between 4-7 April 2006 before Sullivan J, who gave judgment on 12 April.
Taking account also of other aspects of the hearing, on some of which he misdirected himself, the judge concluded that MB had not had a fair hearing (para 103).
BARONESS HALE OF RICHMOND
If, as in that case, the whole object of the proceedings is to protect and promote the best interests of a child, there may be exceptional circumstances in which disclosure of some of the evidence would be so detrimental to the child's welfare as to defeat the object of the exercise: the modern principles are explained in In re D (Minors)(Adoption Reports: Confidentiality)  AC 593. A similar approach is taken in the Mental Health Review Tribunal Rules 1983, which allow evidence to be withheld from the patient if "disclosure would adversely affect the health or welfare of the patient or others": see rr. 6(4) and 12(2). But nothing may be withheld from a suitably qualified representative of the patient: see r. 12(3). That representative is then in the difficult position of not being able to share all the information which he has with his client; but overall there may still be a fair trial of the issues.
That is a judgment with which any appeal court should be slow to interfere.
More importantly, paragraph 4(3)(d) provides that rules of court must secure
This is carried through into CPR rule 76.2(2):
Further, in rule 76.29(8):
Disclosure contrary to the public interest is widely defined in rule 76.1(4):
The need to protect a state's citizens from the risk of terrorist attack is one of the most important and pressing competing interests, as the ECtHR has recognised in a series of decisions: see, eg, Klass v Germany (1978) 2 EHRR 214, Murray v United Kingdom (1994) 19 EHRR 193 and Chahal v United Kingdom (1996) 23 EHRR 413.
The reference to these techniques is to the use of special advocates to represent the interests of the individual concerned, which the Court described in more detail in paragraph 144. Similarly, in Al-Nashif v Bulgaria (2002) 36 EHRR 655 the Court noted United Kingdom legislation providing for the appointment of special counsel and went on to say (para 97):
The Court did, however, define a limit to this in Tinnelly & Sons Ltd and McElduff & Others v United Kingdom (1998) 27 EHRR 249 at paragraph 72, where it stated that limitations must not restrict or reduce the individual's access to the court "in such a way or to such an extent that the very essence of the right is impaired." The House was referred to a litany of cases in which the ECtHR held that where material had been withheld from an individual there was a breach of article 6, but in none of them was a special advocate employed to represent his interests, and accordingly the assistance to be derived from these decisions is limited.
LORD BROWN OF EATON-UNDER-HEYWOOD