|Judgments - Secretary of State for the Home Department (Respondent) v AF (Appellant) (FC) and another (Appellant) and one other action
HOUSE OF LORDS
 UKHL 28
on appeal from:  EWCA Civ 1148
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Secretary of State for the Home Department (Respondent) v AF (Appellant) (FC) and another (Appellant) and one other action
Lord Phillips of Worth Matravers
Lord Hope of Craighead
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Lord Pannick QC
Timothy Otty QC
(Instructed by Middleweeks)
Tim Owen QC
(Instructed by Chambers)
Tim Owen QC
(Instructed by Birnberg Peirce & Partners)
James Eadie QC
Tim Eicke, Cecilia Ivimy
Andrew O'Connor, Kate Grange
(Instructed by Treasury Solicitors)
Michael Fordham QC
Jemima Stratford, Shaheed Fatima
(Instructed by Clifford Chance)
Hugo Keith QC, Jeremy Johnson (AF)
Michel Supperstone QC, Tom de la Mare
Angus McCullough, Paul Bowen (AN)
(Instructed by the Special Advocates Support Office)
19 FEBRUARY, 2, 3, 4, 5 AND 9 MARCH 2009
WEDNESDAY 10 JUNE 2009
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Secretary of State for the Home Department (Respondent) v AF (Appellant) (FC) and another (Appellant) and one other action
 UKHL 28
LORD PHILLIPS OF WORTH MATRAVERS
The history of control orders
Section 2(1) gives the Secretary of State power to make a 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."
Section 3 makes provision for the supervision by the court of the making of control orders. Section 3(10) makes provision for a hearing ("the section 3(10) hearing") at which the function of the court is to determine whether the decision of the Secretary of State that the requirements of section 2(1)(a) and (b) were satisfied and that the obligations imposed by the order were necessary was flawed.
"26. The Schedule to the 2005 Act provides a rule-making power applicable to both derogating and non-derogating control orders. It requires the rule-making authority (paragraph 2(b)) to have regard in particular to the need to ensure that disclosures of information are not made where they would be contrary to the public interest. Rules so made (paragraph 4(2)(b)) may make provision enabling the relevant court to conduct proceedings in the absence of any person, including a relevant party to the proceedings and his legal representative. Provision may be made for the appointment of a person to represent a relevant party: paragraphs 4(2)(c) and 7. The Secretary of State must be required to disclose all relevant material (paragraph 4(3)(a)), but may apply to the court for permission not to do so: paragraph 4(3)(b). Such application must be heard in the absence of every relevant person and his legal representative (paragraph 4(3)(c)) and the court must give permission for material not to be disclosed where it considers that the disclosure of the material would be contrary to the public interest: paragraph 4(3)(d). The court must consider requiring the Secretary of State to provide the relevant party and his legal representative with a summary of the material withheld (paragraph 4(3)(e)), but the court must ensure that such summary does not contain information or other material the disclosure of which would be contrary to the public interest: paragraph 4(3)(f). If the Secretary of State elects not to disclose or summarise material which he is required to disclose or summarise, the court may give directions withdrawing from its consideration the matter to which the material is relevant or otherwise ensure that the material is not relied on: paragraph 4(4).
27. CPR Pt 76 gives effect to the procedural scheme authorised by the Schedule to the 2005 Act. Rule 76.2 modifies the overriding objective of the Rules so as to require a court to ensure that information is not disclosed contrary to the public interest. Rule 76.1(4) stipulates that disclosure is contrary to the public interest if it is made contrary to the interests of national security, the international relations of the United Kingdom, the detection or prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest. Part III of the Rule applies to non-derogating control orders. It is unnecessary to rehearse its detailed terms. Provision is made for the exclusion of a relevant person and his legal representative from a hearing to secure that information is not disclosed contrary to the public interest: rule 76.22. Provision is made for the appointment of a special advocate whose function is to represent the interests of a relevant party (rules 76.23, 76.24), but who may only communicate with the relevant party before closed material is served upon him, save with permission of the court: rules 76.25, 76.28(2). The ordinary rules governing evidence and inspection of documents are not to apply (rule 76.26): evidence may be given orally or in writing, and in documentary or any other form; it may receive evidence which would not be admissible in a court of law; it is provided by rule 76.26(5) that 'Every party shall be entitled to adduce evidence and to cross-examine witnesses during any part of a hearing from which he and his legal representative are not excluded'."
Secretary of State for the Home Department v MB
"I should add that looking at the nature of the issue, namely necessary restrictions on movement in an important interest, and at the way in which the Special Advocates were able to and did deal with the issues on the closed material, I do not regard the process as one in which AF has been without a substantial and sufficient measure of procedural protection."
"I do not understand any of my noble and learned friends to have concluded that the requirements of procedural fairness under domestic law or under the Convention would be met if a person entitled to a fair hearing, in a situation where an adverse decision could have severe consequences, were denied such knowledge, in whatever form, of what was said against him as was necessary to enable him, with or without a special advocate, effectively to challenge or rebut the case against him."
"This is not a case (like E) in which the order can be justified on the strength of the open material alone. Nor is it a case in which the thrust of the case against the controlled person has been effectively conveyed to him by way of summary, redacted documents or anonymised statements. It is a case in which, on the judge's assessment which the Court of Appeal did not displace, MB was confronted by a bare, unsubstantiated assertion which he could do no more than deny. I have difficulty in accepting that MB has enjoyed a substantial measure of procedural justice, or that the very essence of the right to a fair hearing has not been impaired."
In relation to AF, Lord Bingham said this, as para 43:
"This would seem to me an even stronger case than MB's. If, as I understand the House to have accepted in Roberts, the concept of fairness imports a core, irreducible minimum of procedural protection, I have difficulty, on the judge's findings, in concluding that such protection has been afforded to AF. The right to a fair hearing is fundamental. In the absence of a derogation (where that is permissible) it must be protected. In this case, as in MB's, it seems to me that it was not."
"51. Thus a decision that article 6 does not allow the Secretary of State to rely on closed material would create a dilemma: either he must disclose material which the court considers that the public interest requires to be withheld, or he must risk being unable to justify to the court an order which he considers necessary to protect the public against terrorism. It was this dilemma, and the way in which it should be resolved, which the Strasbourg court recognised in Chahal v United Kingdom 23 EHRR 413, para 131:
'The court recognises that the use of confidential material may be unavoidable where national security is at stake. This does not mean, however, that the national authorities can be free from effective control by the domestic courts whenever they choose to assert that national security and terrorism are involved. The court attaches significance to the fact that, as the interveners pointed out in connection with article 13 (see para 144 below), in Canada a more effective form of judicial control has been developed in cases of this type. This example illustrates that there are techniques which can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice.'
52. The court described the Canadian procedure which they recommended as a model in para 144:
'[A] Federal Court judge holds an in camera hearing of all the evidence, at which the applicant is provided with a statement summarising, as far as possible, the case against him or her and has the right to be represented and to call evidence. The confidentiality of security material is maintained by requiring such evidence to be examined in the absence of both the applicant and his or her representative. However, in these circumstances, their place is taken by a security-cleared counsel instructed by the court, who cross-examines the witnesses and generally assists the court to test the strength of the state's case. A summary of the evidence obtained by this procedure, with necessary deletions, is given to the applicant.'"
"The Canadian model is precisely what has been adopted in the United Kingdom, first for cases of detention for the purposes of deportation on national security grounds (as in Chahal) and then for the judicial supervision of control orders. From the point of view of the individual seeking to challenge the order, it is of course imperfect. But the Strasbourg court has recognised that the right to be informed of the case against one, though important, may have to be qualified in the interests of others and the public interest. The weight to be given to these competing interests will depend upon the facts of the case, but there can in time of peace be no public interest which is more weighty than protecting the state against terrorism and, on the other hand, the Convention rights of the individual which may be affected by the orders are all themselves qualified by the requirements of national security. There is no Strasbourg or domestic authority which has gone to the lengths of saying that the Secretary of State cannot make a non-derogating control order (or anything of the same kind) without disclosing material which a judge considers it would be contrary to the public interest to disclose. I do not think that we should put the Secretary of State in such an impossible position and I therefore agree with the Court of Appeal that in principle the special advocate procedure provides sufficient safeguards to satisfy article 6."
"It follows that I cannot share the view of Lord Hoffmann, that the use of special advocates will always comply with article 6; nor do I have the same difficulty as Lord Bingham, in accepting that the procedure could comply with article 6 in the two cases before us. It is quite possible for the court to provide 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."
The last sentence of this passage contains an ambiguity. "Even though the whole evidential basis is not disclosed" could mean (i) "even though none of the evidential basis is disclosed" or (ii) "even though not all of the evidential basis is disclosed". It seems that some have read it in one way and some in another.
"I agree further that the special advocate procedure, highly likely though it is that it will in fact safeguard the suspect against significant injustice, cannot invariably be guaranteed to do so. There may perhaps be cases, wholly exceptional though they are likely to be, where, despite the best efforts of all concerned by way of redaction, anonymisation, and gisting, it will simply be impossible to indicate sufficient of the Secretary of State's case to enable the suspect to advance any effective challenge to it. 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 my noble and learned friend 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 my view, therefore, paragraph 4(3)(d) of the Schedule to the 2005 Act, should be read and given effect 'except where to do so would be incompatible with the right of the controlled person to a fair trial'. Paragraph 4(2)(a) and rule 76.29(8) would have to be read in the same way. This would then bring into play rule 76.29(7), made under paragraph 4(4) of the Schedule. Where the court does not give the Secretary of State permission to withhold closed material, she has a choice. She may decide that, after all, it can safely be disclosed (experience elsewhere in the world has been that, if pushed, the authorities discover that more can be disclosed than they first thought possible). But she may decide that it must still be withheld. She cannot then be required to serve it. But if the court considers that the material might be of assistance to the controlled person in relation to a matter under consideration, it may direct that the matter be withdrawn from consideration by the court. In any other case, it may direct that the Secretary of State cannot rely upon the material. If the Secretary of State cannot rely upon it, and it is indeed crucial to the decision, then the decision will be flawed and the order will have to be quashed."
Not only did this proposal find favour with Lord Carswell and Lord Brown; it was accepted, not without reservation, by Lord Bingham. Each case was remitted to the trial judge for further consideration in the light of the observations of the committee.
The relevant facts in these appeals
with his father in December 2004. The open case against him alleged links with Islamist extremists, some of whom are affiliated to an organisation proscribed under the Terrorism Act 2000. He established that he had innocent links with those who were named. Additional disclosure that was made in relation to a trip by AF to Egypt added nothing significant to the case against him. It is common ground that the open material did not afford the Secretary of State reasonable grounds for suspicion of involvement by AF in terrorism-related activity. The case against him was to be found in the closed material.
"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.
10. AN does not know the gist of significant grounds of suspicion raised against him. I have already determined, in a closed judgment, that the material which I have considered is capable of founding reasonable grounds to suspect that he has been involved in terrorism related activity. I have identified in a closed disclosure judgment what must be disclosed to him to fulfil his right to a fair hearing in accordance with my understanding of the speeches of the majority in MB. I do so with disquiet, because the factors which require further disclosure in this case are likely to arise in many others, with the result that the non-derogating control order procedure may be rendered nugatory in a significant number of cases in which the grounds for suspecting that a controlled person has been involved in terrorism related activities may otherwise be adjudged reasonable."
He put the Secretary of State to her election to disclose the material that he had identified in his closed judgment or to cease to rely on it, but stayed the effect of his order pending her appeal to the Court of Appeal.AE
"The security service investigation of AE has revealed he has a considerable jihadi pedigree, and that prior to his arrival in the UK he took part in both terrorist training and activities".
"So my conclusion is that there is no minimum level of information which has invariably in every case to be set out in the open material to ensure compliance with the article 6 rights of the controlled person. Indeed the task of the court in deciding if there has been an infringement of the controlled person's article 6 rights is to look with the appropriate intense care described in MB at what occurs in the closed proceedings as well as considering the open evidence and the open proceedings."
"the information disclosed in the open case was very scant and three members of the Appellate Committee concluded that it would be exceptional for there to be a finding of infringement with article 6 rights of a controlled person when the special advocate procedure is adopted. This so that even in cases where the controlled person has not been informed of the essentials of the case against him or her or the evidence relied on by the Secretary of State."
Silber J ordered that the control order should continue in force.
The decision of the Court of Appeal
"i) The question is whether the hearing under section 3(10) infringes the controlee's rights under article 6. In this context the question is whether, taken as a whole, the hearing is fundamentally unfair in the sense that there is significant injustice to the controlee or, put another way, that he is not accorded a substantial measure of procedural justice or the very essence of his right to a fair hearing is impaired. More broadly, the question is whether the effect of the process is that the controlee is exposed to significant injustice. In what follows 'fair' and 'unfair' are used in this sense.
ii) All proper steps should be made to provide the controlee with as much information as possible, both in terms of allegation and evidence, if necessary by appropriate gisting.
iii) Where the full allegations and evidence are not provided for reasons of national security at the outset, the controlee must be provided with a special advocate or advocates. In such a case the following principles apply.
iv) There is no principle that a hearing will be unfair in the absence of open disclosure to the controlee of an irreducible minimum of allegation or evidence. Alternatively, if there is, the irreducible minimum can, depending on the circumstances, be met by disclosure of as little information as was provided in AF, which is very little indeed.
v) Whether a hearing will be unfair depends upon all the circumstances, including for example the nature of the case, what steps have been taken to explain the detail of the allegations to the controlled person so that he can anticipate what the material in support might be, what steps have been taken to summarise the closed material in support without revealing names, dates or places, the nature and content of the material withheld, how effectively the special advocate is able to challenge it on behalf of the controlled person and what difference its disclosure would or might make.
vi) In considering whether open disclosure to the controlee would have made a difference to the answer to the question whether there are reasonable grounds for suspicion that the controlee is or has been involved in terrorist related activity, the court must have fully in mind the problems for the controlee and the special advocates and take account of all the circumstances of the case, including the question what if any information was openly disclosed and how effective the special advocates were able to be. The correct approach to and the weight to be given to any particular factor will depend upon the particular circumstances.
vii) There are no rigid principles. What is fair is essentially a matter for the judge, with whose decision this court should very rarely interfere."
"112. The question for this court is whether, in a case such as AF's, where the judge took the view that he could be sure that the evidence, albeit wholly undisclosed, was unanswerable, the law regards the requirements of a fair hearing as satisfied. In my judgment, for reasons both principled and pragmatic, Stanley Burnton and Mitting JJ were right to hold that the law did not do so.
113. Far from being difficult, as Lord Brown tentatively suggested it was, it is in my respectful view seductively easy to conclude that there can be no answer to a case of which you have only heard one side. There can be few practising lawyers who have not had the experience of resuming their seat in a state of hubristic satisfaction, having called a respectable witness to give apparently cast-iron evidence, only to see it reduced to wreckage by ten minutes of well-informed cross-examination or convincingly explained away by the other side's testimony. Some have appeared in cases in which everybody was sure of the defendant's guilt, only for fresh evidence to emerge which makes it clear that they were wrong. As Mark Twain said, the difference between reality and fiction is that fiction has to be credible. In a system which recruits its judges from practitioners, judges need to carry this kind of sobering experience to the bench. It reminds them that you cannot be sure of anything until all the evidence has been heard, and that even then you may be wrong. It may be, for these reasons, that the answer to Baroness Hale's question - what difference might disclosure have made? - is that you can never know."
(i) Contrary to the decision of the Court of Appeal, the majority of the House decided in MB that article 6 of the Convention and the common law principle of fairness conferred on a controlee a core, irreducible entitlement to be told sufficient of the case against him to enable him to challenge that case unless, which was not the case so far as AF was concerned, the special advocates were able to defeat those allegations without such disclosure.
(ii) The House did not approve the "makes no difference" principle.
(iii) Alternatively, if the House held that there was no core, irreducible minimum that had to be disclosed, it should depart from that result and affirm the right of a controlee to know and respond to the case against him.
A v United Kingdom
"The applicants complained about the procedure before SIAC for appeals under section 25 of the 2001 Act (see paragraph 91 above) and in particular the lack of disclosure of material evidence except to special advocates with whom the detained person was not permitted to consult. In their submission, 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. In all the applicants' appeals, except that of the tenth applicant, SIAC relied on closed material and recognised that the applicants were thereby put at a disadvantage.
On the applicants' second point, the Government submitted 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. The Court's case-law from Chahal (cited above) onwards had indicated some support for a special advocate procedure in particularly sensitive fields. Moreover, in each applicant's case, the open material gave sufficient notice of the allegations against him to enable him to mount an effective defence."
"The Government submit that the result contended for by the applicants is wrong in principle. Their submission wrongly elevates the right of an individual to disclosure of relevant evidence under Article 5(4) (or Article 6) to an absolute right which necessarily overrides the rights of others, including the right to life under Article 2, and overrides the interests of the State in protecting secret sources of information so as to preserve the effectiveness of its intelligence, police and counter-terrorism services. Such an absolute right to disclosure would, if it existed, create a serious lacuna in the protection the State may offer its citizens and disregards the principle, inherent in the Convention as a whole, including Article 5(4) (and Article 6), that the general interests of the community must be balanced against the rights of an individual (see eg Sporrong and Lönnroth v Sweden (1983) 5 EHRR 35, at para 69; Soering v United Kingdom (1989) 11 EHRR 439, at para 89)."
This is the critical issue that arises on the present appeals. For the reasons that follow I consider that the Grand Chamber has provided the definitive resolution of it.
"215. The Court recalls that although the judges sitting as SIAC were able to consider both the "open" and "closed" material, neither the applicants nor their legal advisers could see the closed material. Instead, the closed material was disclosed to one or more special advocates, appointed by the Solicitor General to act on behalf of each applicant. During the closed sessions before SIAC, the special advocate could make submissions on behalf of the applicant, both as regards procedural matters, such as the need for further disclosure, and as to the substance of the case. However, from the point at which the special advocate first had sight of the closed material, he was not permitted to have any further contact with the applicant and his representatives, save with the permission of SIAC. In respect of each appeal against certification, SIAC issued both an open and a closed judgment.
216. The Court takes as its starting point that, as the national courts found and it has accepted, during the period of the applicants' detention the activities and aims of the al'Qaeda network had given rise to a 'public emergency threatening the life of the nation'. It must therefore be borne in mind that at the relevant time there was considered to be an urgent need to protect the population of the United Kingdom from terrorist attack and, although the United Kingdom did not derogate from Article 5 § 4, a strong public interest in obtaining information about al'Qaeda and its associates and in maintaining the secrecy of the sources of such information (see also, in this connection, Fox, Campbell and Hartley, cited above, (1991) 13 EHRR 157, para 39).
217. Balanced against these important public interests, however, was the applicants' right under Article 5 § 4 to procedural fairness. Although the Court has found that, with the exception of the second and fourth applicants, the applicants' detention did not fall within any of the categories listed in subparagraphs (a) to (f) of Article 5 § 1, it considers that the case-law relating to judicial control over detention on remand is relevant, since in such cases also the reasonableness of the suspicion against the detained person is a sine qua non (see paragraph 204 above). Moreover, in 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 (2001) 37 EHRR 335, para 39, and see also Chahal (1996) 23 EHRR 413, paras 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 (see paragraph 91 above) 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."
"21 In my view, cross-examination by special advocates can usually deal with evidential reliability, possible alternative and innocent inferences, internal consistency or contradictions, the significance of pieces of evidence and the strength of the case overall. What they cannot do without instructions or evidence is to provide evidence or explanation which contradicts or explains the closed essential features of the case against him or offer alternative inferences which they are not aware of or lack any support for.
40 The real value lies in the potential for a controlled person to provide evidence which shows a different picture or an innocent interpretation or explanation which counters the basis for the adverse inferences and does so beyond that which the special advocates may suggest. This would either be because there would now be an evidential basis for those suggestions or because the special advocate may not be able to anticipate or put together what the controlled person's position is. He may also be able to provide the special advocate with information or statements to be deployed as the special advocate sees fit, which the court and SSHD may never know of."
The effect of the Grand Chamber's decision
Procedural fairness and the fair result
"It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. 'When something is obvious,' they may say, 'why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.' Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events."
Can the PTA still be read down?
LORD HOPE OF CRAIGHEAD
"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."
That analysis, which seeks to combine the approach of Lord Bingham with that of the other three who constituted the majority, must now be read subject to this crucial modification: there is no room for an exception where it is thought that the controlled person has no conceivable case to answer. The judge must insist in every case that the controlled person is given sufficient information to enable his special advocate effectively to challenge the case that is brought against him. That is the core principle.
LORD SCOTT OF FOSCOTE
"An Act to provide for the making against individuals involved in terrorism-related activity of orders imposing obligations on them for purposes connected with preventing or restricting their further involvement in such activity "
The "obligations" that may be imposed, spelled out in section 1(4), are, if all or many of them are imposed, highly onerous. They do not, or do not necessarily, amount to a deprivation of the liberty of the individual against whom they are made but undeniably are capable of constituting a serious impediment to the ability of that individual to enjoy many of the freedoms and pleasures of an ordinary life in this country.
"In the determination of his civil rights and obligations . everyone is entitled to a fair hearing "
It is not in dispute that the obligations imposed on each of the appellants by the control order made against him under the 2005 Act constitute civil obligations for the purposes of Article 6(1) and that unless the judicial proceedings conducted pursuant to section 3(10) of the 2005 Act (see paras 4 and 5 of Lord Phillips' opinion) afforded the appellant a "fair hearing" for Article 6(1) purposes, the appellant's Article 6 rights have been breached.
LORD RODGER OF EARLSFERRY
LORD WALKER OF GESTINGTHORPE
BARONESS HALE OF RICHMOND
"(a) Issues of relevance and materiality are irrelevant. There is no balance to be struck between the harm to the public interest if disclosure were to be made and the harm to the interests of justice flowing from non-disclosure: the interests of justice play no part in disclosure decisions on the routine application of CPR Part 76.
(b) The fact that closed material may contain documents that are exculpatory is not relevant in seeking to contend for disclosure to the controlled person.
(c) Any disclosure is assumed to be not just to the controlled person, but to the world at large;
(d) The test is met by mere contemplation by any party of the nature of the primary source of the information, rather than that person's actual identification of that source of information. Therefore disclosure of information is harmful where it may lead to a suspicion in the mind of the controlled person, or a hardening of an existing suspicion, even falling short of actual knowledge or information. Accordingly, for example, the fact the respondent may already suspect that his landline or principal mobile phone has been intercepted would not of itself justify disclosure of that fact.
(e) National security concerns advanced by the Security Service are within its particular expertise and accordingly very convincing material is required before such powerful considerations can be overcome."
"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."
As your Lordships have pointed out, section 2(1) of the Human Rights Act 1998 requires the House to take any such judgment into account. Whatever latitude this formulation may permit, the authority of a considered statement of the Grand Chamber is such that our courts have no option but to accept and apply it. Views may differ as to which approach is preferable, and not all may be persuaded that the Grand Chamber's ruling is the preferable approach. But I am in agreement with your Lordships that we are obliged to accept and apply the Grand Chamber's principles in preference to those espoused by the majority in MB.
LORD BROWN OF EATON-UNDER-HEYWOOD
(i) Although in the pastin cases like Chahal v United Kingdom (1996) 23 EHRR 413, Tinnelly & Sons Ltd v United Kingdom (1998) 27 EHRR 24 and Al-Nashif v Bulgaria (2002) 36 EHRR 655 the Court has contemplated the use of special advocates as a means of counterbalancing procedural unfairness and thereby satisfying the requirements of articles 5(4) and 6, it has never previously actually decided the pointparas 209 and 211.
(ii) Special advocates can provide an important safeguard in ensuring that the fullest possible disclosure is made to the suspect as is consistent with the public interest (para 219). However, the special advocate cannot usefully perform his important role of "testing the evidence and putting arguments on behalf of the [suspect]" unless the suspect is "provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate" (para 220, second sentence).
(iii) "Where . . . the open material consist[s] purely of general assertions and [the judge's] decision [to confirm the control order is] based solely or to a decisive degree on closed material, the procedural requirements of [article 6 will] not be satisfied." (para 220, last sentence)
(iv) This is so despite the Court's express recognition (a) that there is "a strong public interest in obtaining information about al'Qaeda and its associates and in maintaining the secrecy of the sources of such information" (para 216) and (b) that no excessive or unjustified secrecy is employed; rather there are "compelling reasons for the lack of disclosure" (para 219).