Secretary of State for the Home Department v. MB (FC) (Appellant)
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 :
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.
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
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  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:
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."
30. Similar statements may be found elsewhere. In Charkaoui v Minister of Citizenship and Immigration  1 SCR 350, McLachlin CJ, for the Supreme Court of Canada, observed (para 53) :
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):
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 :
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:
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),
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  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  UKHL 45,  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  EWCA Civ 324,  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  UKHL 69,  1 AC 603, para 10).
36. It is now necessary to apply these principles to the facts of these two appeals.MB
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:
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) :
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) :
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.