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Judgments - Secretary of State for the Home Department v. MB (FC) (Appellant)

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    25.  On 11 July 2002 the Committee of Ministers of the Council of Europe promulgated Guidelines on human rights and the fight against terrorism. The first two principles are :

    "I  States' obligation to protect everyone against terrorism

    States are under the obligation to take the measures needed to protect the fundamental rights of everyone within their jurisdiction against terrorist acts, especially the right to life. This positive obligation fully justifies States' fight against terrorism in accordance with the present guidelines.

    II Prohibition of arbitrariness

    All measures taken by States to fight terrorism must respect human rights and the principle of the rule of law, while excluding any form of arbitrariness, as well as any discriminatory or racist treatment, and must be subject to appropriate supervision."

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 [2004] UKHL 3, [2004] 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.

    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 (para 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 (para 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 (paras 4(2)(c) and 7). The Secretary of State must be required to disclose all relevant material (para 4(3)(a)), but may apply to the court for permission not to do so (para 4(3)(b)). Such application must be heard in the absence of every relevant person and his legal representative (para 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 (para 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 (para 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 (para 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 (para 4(4)).

    27.  Part 76 of the Civil Procedure Rules 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 UK, 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 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".

    28.  In paragraph 178 of his written case the Secretary of State states that

    "It is not in dispute that as a general principle and in ordinary circumstances, the right to a fair trial in criminal and in civil proceedings under Article 6 includes the right to disclosure of relevant evidence: see eg R (Roberts) v Parole Board [2005] 2 AC 738 at [17] per Lord Bingham, and the cases there referred to."

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.

    29.  In Kanda v Government of the Federation of Malaya [1962] AC 322, 337, the Privy Council (per Lord Denning) described the right to be heard as one of the essential characteristics of natural justice. But he pointed out:

    "If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him : and then he must be given a fair opportunity to correct or contradict them … It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other."

Lord Morris of Borth-y-Gest repeated this ruling in Ridge v Baldwin [1964] AC 40, 113-114:

    "It is well established that the essential requirements of natural justice at least include that before someone is condemned he is to have an opportunity of defending himself, and in order that he may do so that he is to be made aware of the charges or allegations or suggestions which he has to meet: Kanda v Government of Malaya. My Lords, here is something which is basic to our system: the importance of upholding it far transcends the significance of any particular case."

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) [2003] 1 AC 681, 719) and in DS v Her Majesty's Advocate [2007] 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."

    30.  Similar statements may be found elsewhere. In Charkaoui v Minister of Citizenship and Immigration [2007] 1 SCR 350, McLachlin CJ, for the Supreme Court of Canada, observed (para 53) :

    "Last but not least, a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to it."

That right was not absolute and might be limited in the interests of national security (paras 57-58) but (para 64):

    "… The judge is therefore not in a position to compensate for the lack of informed scrutiny, challenge and counter-evidence that a person familiar with the case could bring. Such scrutiny is the whole point of the principle that a person whose liberty is in jeopardy must know the case to meet. Here that principle has not merely been limited; it has been effectively gutted. How can one meet a case one does not know?"

In the recent case of Hamdi v Rumsfeld 542 US 507 (2004), O'Connor J, writing for the majority, said (p 533):

    "We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker. [Authority, cited]. 'For more than a century the central meaning of procedural due process has been clear : 'Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified' …' These essential constitutional promises may not be eroded."

    31.  Statements to similar effect, less emphatically expressed, are to be found in the Strasbourg case law. In Kostovski v Netherlands (1989) 12 EHRR 434, paras 42, 44, a criminal case concerned with anonymous witnesses, the court observed :

    "… If the defence is unaware of the identity of the person it seeks to question, it may be deprived of the very particulars enabling it to demonstrate that he or she is prejudiced, hostile or unreliable. Testimony or other declarations inculpating an accused may well be designedly untruthful or simply erroneous and the defence will scarcely be able to bring this to light if it lacks the information permitting it to test the author's reliability or cast doubt on his credibility. The dangers inherent in such a situation are obvious … The right to a fair administration of justice holds so prominent a place in a democratic society that it cannot be sacrificed to expediency …"

In McMichael v United Kingdom (1995) 20 EHRR 205, para 80, a family case concerning a child, the court said

    "Nevertheless, notwithstanding the special characteristics of the adjudication to be made, as a matter of general principle the right to a fair - adversarial - trial 'means the opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party'".

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),

    "means in principle the opportunity for the parties to a criminal or civil trial to have knowledge of and comment on all evidence adduced or observations filed, even by an independent member of the national legal service, with a view to influencing the Court's decision."

In Van Mechelen v Netherlands (1997) 25 EHRR 647, para 51, a criminal case, the court ruled:

    "In addition, all the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence; as a general rule, paragraphs (1) and (3)(d) of Article 6 require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage."

In Garcia Alva v Germany (2001) 37 EHRR 335, para 42, another criminal case, the court said:

    "The Court acknowledges the need for criminal investigations to be conducted efficiently, which may imply that part of the information collected during them is to be kept secret in order to prevent suspects from tampering with evidence and undermining the course of justice. However, this legitimate goal cannot be pursued at the expense of substantial restrictions on the rights of the defence. Therefore, information which is essential for the assessment of the lawfulness of a detention should be made available in an appropriate manner to the suspect's lawyer."

    32.  As the Secretary of State correctly submits, the Strasbourg court has repeatedly stated that the constituent rights embodied in article 6(1) are not in themselves absolute. As it was put in Jasper v United Kingdom (2000) 30 EHRR 441, para 52, and Fitt v United Kingdom (2000) 30 EHRR 480, para 45 (footnotes omitted),

    "However, as the applicant recognised, the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings, there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6(1). Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities."

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.

    33.  Little assistance is gained from R v H, above, since the problem in that case related to the withholding by a prosecutor, on national security grounds, of material helpful to a defendant. There was no question of withholding from the defendant material adverse to him and relied on by the prosecutor, and it was held that if the fairness of the trial required disclosure to the defendant the prosecutor must either disclose or discontinue (para 36(6)). There is also little assistance to be gained from cases where, although evidence is withheld, the person receives an adequate summary, as the Strasbourg court understood to be the Canadian practice (see Chahal, above, para 144) and as was found to have been done in the Canadian cases of Minister of Employment and Immigration v Chiarelli [1992] 1 SCR 711, pp 745-746 and Re Harkat (2004) 125 CRR (2d) 319, para 32. There is, again, little help to be gained from reported cases in which the material not disclosed was not relied on, as was found to be so in Bendenoun v France (1994) 18 EHRR 54, para 52; Jasper, above, para 55; Fitt, above, para 48. The real problem arises where material is relied on in coming to a decision which the person at risk of an adverse ruling has had no adequate opportunity to challenge or rebut, as in Feldbrugge v The Netherlands (1986) 8 EHRR 425, paras 42, 44; Van Mechelen v The Netherlands, above, paras 62-65; Luca v Italy (2001) 36 EHRR 807, paras 43-45. In each of these cases the trial was found to be unfair.

    34.  In R (Roberts) v Parole Board [2005] UKHL 45, [2005] 2 AC 738, there was a division of opinion among members of the House on the question (not relevant to these appeals) whether the Parole Board had power to adopt a special advocate regime. The hearing in question had yet to take place, and it could not at that stage be known whether, and to what extent, the Board would make a finding adverse to the applicant in reliance on evidence not disclosed to or challengeable by him. I myself doubted (para 19) whether a decision of the board adverse to the applicant, based on evidence not disclosed even in outline to him or his legal representatives, which neither he nor they had heard and which neither he nor they had had any opportunity to challenge or rebut, could be held to meet the fundamental duty of procedural fairness required (in that case) by article 5(4). Lord Woolf, in the course of a detailed opinion, accepted (para 62) "the overriding obligation for a hearing to meet the requirements of article 5(4) and of appropriate standards of fairness required by domestic law" and accepted (para 68) the applicant's contention that there was "a core, irreducible, minimum entitlement" for him as a life sentence prisoner to be able effectively to test and challenge any evidence which decisively bore on the legality of his detention. In paragraph 78 he held that if a case were to arise where it was impossible for the board to make use of information that had not been disclosed to the prisoner and, at the same time, protect the prisoner from a denial of his fundamental right to a fair hearing, then the rights of the prisoner would have to take precedence. The applicant had a fundamental right to be treated fairly (para 80) and what would be determinative in a particular case (para 83(vii)) would be whether, looking at the process as a whole, a decision had been taken by the board which involved significant injustice to a prisoner. In the opinion of Lord Steyn the proposed procedure (para 93) would override a fundamental right of due process and would (para 97) be contrary to the rule of law. Lord Rodger associated himself with certain statements of Lord Woolf, including his reference to a fundamental right to be treated fairly, but held (para 112) that the House could not decide in advance whether the full hearing, with a specially appointed advocate, would meet the requirements of article 5(4). My noble and learned friend Lord Carswell concluded (para 144) that the interests of the informant and the public should prevail over the interests of the applicant, strong though the latter might be. But he emphasised that he was making a decision in principle on the power of the board to appoint special advocates and their compatibility with article 5(4), and he accepted that there might well be cases in which it would not be fair and justifiable to rely on special advocates. Each case would require consideration on its own facts. 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.

    35.  I do not for my part doubt that the engagement of special advocates in cases such as these can help to enhance the measure of procedural justice available to a controlled person. The assistance which special advocates can give has been acknowledged (for instance, in M v Secretary of State for the Home Department [2004] EWCA Civ 324, [2004] 2 All ER 863, para 34), and it is no doubt possible for such advocates on occasion to demonstrate that evidence relied on against a controlled person is tainted, unreliable or self-contradictory. I share the view to which the Strasbourg court inclined in Chahal, above, para 131, repeated in Al-Nashif, above, para 97, that the engagement of special advocates may be a valuable procedure. But, as Lord Woolf observed in Roberts (para 60), "The use of an SAA is, however, never a panacea for the grave disadvantages of a person affected not being aware of the case against him." The reason is obvious. In any ordinary case, a client instructs his advocate what his defence is to the charges made against him, briefs the advocate on the weaknesses and vulnerability of the adverse witnesses, and indicates what evidence is available by way of rebuttal. This is a process which it may be impossible to adopt if the controlled person does not know the allegations made against him and cannot therefore give meaningful instructions, and the special advocate, once he knows what the allegations are, cannot tell the controlled person or seek instructions without permission, which in practice (as I understand) is not given. "Grave disadvantage" is not, I think, an exaggerated description of the controlled person's position where such circumstances obtain. I would respectfully agree with the opinion of Lord Woolf in Roberts, para 83(vii), that the task of the court in any given case is to decide, looking at the process as a whole, whether a procedure has been used which involved significant injustice to the controlled person (see also R (Hammond) v Secretary of State for the Home Department [2005] UKHL 69, [2006] 1 AC 603, para 10).

    36.  It is now necessary to apply these principles to the facts of these two appeals.


    37.  MB is a 24 year-old student, born in Kuwait. He is a British citizen, naturalised as such in January 1998 after his mother was granted indefinite leave to remain. On 1 March 2005 he was seeking to fly to Syria from Manchester Airport when he was stopped and questioned by police officers and officers of the Security Service. On the following day he was at Heathrow, this time seeking to fly to Yemen, when he was again stopped and questioned by the police. His passport was seized and he was released. The content of these interviews is disputed. The Secretary of State asserts that on each occasion MB intended to travel on to Iraq to fight against coalition forces, which MB denies.

    38.  On 1 September 2005 the Secretary of State applied to the court under section 3(1)(a) of the 2005 Act for permission to make a non-derogating control order. The application was supported by a witness statement and an open statement with supporting documents. The open statement said, so far as material:

    "3.  MB is an Islamist extremist who, as recently as March 2005, attempted to travel to Syria and then Yemen. The Security Service assessment is that MB was intending to travel onwards to Iraq …

    8. The Security Service is confident that prior to the authorities preventing his travel, MB intended to go to Iraq to fight against coalition forces. Despite having been stopped from travelling once, MB showed no inclination to cancel his plans. The police prevented his travel on a second occasion, and seized his passport…"

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.

    39.  In his judgment (para 66) the judge recorded the description by counsel for the Secretary of State of his open case as "relatively thin" and referred to part of the passage quoted in the last paragraph above. He observed (para 67) :

    "The basis for the Security Service's confidence is wholly contained within the closed material. Without access to that material it is difficult to see how, in reality [MB] could make any effective challenge to what is, on the open case before him, no more than a bare assertion."

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).

    40.  The Court of Appeal thought it plain (para 27 of its judgment) that the justification for the obligations imposed on MB lay in the closed material, and it was the impact, on the facts of the case, of the provisions in the 2005 Act for the use of closed material that caused the court most concern (para 70). But having reviewed some of the authorities, it concluded (para 86) :

    "If one accepts, as we do, that reliance on closed material is permissible, this can only be on terms that appropriate safeguards against the prejudice that this may cause to the controlled person are in place. We consider that the provisions of the [2005 Act] for the use of a special advocate, and of the rules of court made pursuant to paragraph 4 of the Schedule to the [Act], constitute appropriate safeguards, and no suggestion has been made to the contrary."

    41.  The Council of Europe Commissioner for Human Rights, in paragraph 21 of his report referred to above (para 16), and the Joint Committee on Human Rights, in paragraph 76 of its report referred to above (para 16), had difficulty in accepting that a hearing could be fair if an adverse decision could be based on material that the controlled person has no effective opportunity to challenge or rebut. 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.


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