Secretary of State for the Home Department v. MB (FC) (Appellant)
42. Ouseley J observed (in para 11 of his judgment) that the open case for a control order against AF was very short. AF came to the attention of the Security Service before his arrest in May 2006. It was alleged that he had links with Islamist extremists in Manchester, some of whom were affiliated to the Libyan Islamic Fighting Group. The LIFG became a proscribed organisation on 14 October 2005. The judge found (para 61) it to be clear that the essence of the Secretary of State's case against AF was in the closed material, and AF did not know what the case against him was. The open material disclosed to AF did not give grounds for reasonable suspicion (para 131), and it was not contended that it did. There were no more than links to extremists, who also had innocent links to him. The judge thought it clear (para 131) that more than reasonable grounds for suspicion existed, but only on the closed material. The judge was similarly satisfied that a control order was necessary (para 133) but that conclusion depended on the closed evidence. The judge accepted (para 146), without qualification, submissions by counsel for AF that no, or at least no clear or significant, allegations of involvement in terrorist-related activity were disclosed by the open material, that no such allegations had been gisted, that the case made by the Secretary of State against AF was in its essence entirely undisclosed to him and that no allegations of wrongdoing had been put to him by the police in interview after his arrest, affording him an idea by that side wind of what the case against him might be. Having noted the decision of the Court of Appeal in MB and the decision of the House in Roberts, above, the judge concluded (para 166) that there was no clear basis for a finding of incompatibility.
43. This would seem to me an even stronger case than MB's. If, as I understand the House to have accepted in Roberts, above, 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.
44. Since a majority of my noble and learned friends are of my opinion on the principles relevant to this issue, it is necessary to consider the question of remedy. In receiving and acting on closed material not disclosed to MB and AF, the courts below acted in strict accordance with the Act and the Rules. It was suggested in argument that the relevant provisions should be read down under section 3 of the Human Rights Act 1998, so that they would take effect only when it was consistent with fairness for them to do so. This would be a possible course, and it is plain that the provisions do not operate unfairly in all cases, as where the open material is sufficient to support the making of an order. But I question whether section 3 should be relied on in these cases, first, because any weakening of the mandatory language used by Parliament would very clearly fly in the face of Parliament's intention, and, secondly, because it might be thought preferable to derogate from article 6, if judged permissible to do so (on which I express no opinion whatever), than to accept any modification of the terms of the Act and the Rules. I therefore see force in the argument that a declaration of incompatibility should be made and the orders quashed. Having, however, read the opinions of my noble and learned friends Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood, I see great force in the contrary argument, and would not wish to press my opinion to the point of dissent. I therefore agree that section 3 should be applied, and the cases referred back, as they propose, for consideration in each case by the judge in the light of the committee's conclusions.
45. MB is the subject of a control order made by the Secretary of State on 2 September 2005 (with the permission of Ouseley J) on the grounds that he was suspected of being an Islamist extremist who twice tried to go to Iraq to fight against coalition forces. On a review of the case, Sullivan J decided that the procedure by which closed material was withheld from MB was inconsistent with his right to a fair trial under article 6(1) of the European Convention. He made a declaration of incompatibility under section 4(2) of the Human Rights Act 1998. The Court of Appeal reversed this decision and discharged the declaration. MB appeals.
46. AF is the subject of a control order made by the Secretary of State (with the permission of a judge) on 11 September 2006 (and varied on 18 October 2006) on the grounds that he was suspected of links with Islamist extremists, some of whom were affiliated to the Libyan Islamic Fighting Group, a proscribed terrorist organisation. On a review of the case, Ouseley J decided that the restrictions imposed by the order amounted to a deprivation of liberty within the meaning of article 5(1) of the Convention. In the absence of a derogation, the order was therefore unlawful. But he rejected a submission that the control order proceedings amounted to the determination of a criminal charge or that the withholding of closed material was inconsistent with AF's right under article 6 to a fair trial. The judge gave a leapfrog certificate and both sides appeal; the Secretary of State against the ruling on deprivation of liberty and AF against the rulings on article 6.
47. My Lords, I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill and gratefully adopt his statement of the various restrictions imposed by the control order made against AF. For the reasons I gave in Secretary of State for the Home Department v JJ  UKHL 45, I do not think that these restrictions come anywhere near amounting to a deprivation of liberty in the sense contemplated by the Convention and I therefore agree that the appeal of the Secretary of State on this point should be allowed.
48. I also agree with my noble and learned friend that a review of a control order is not the determination of a criminal charge. As a matter of English law, this is beyond doubt. MB and AF are not charged with having committed any breach of the law, let alone a terrorist act. The order is made on the basis of suspicion about what they may do in the future and not upon a determination of what they have done in the past. And the restrictions imposed by the order are for the purpose of prevention and not punishment or deterrence.
49. It is of course true that domestic law is not conclusive for the purposes of article 6. The term criminal charge has an autonomous Convention meaning which cannot be circumvented by the labels affixed in domestic law. But the Strasbourg jurisprudence recognises the distinction between determination and punishment of past guilt and prevention of future suspected wrongdoing: see the cases mentioned in paragraphs 21 and 23 of Lord Bingham's opinion. We were not referred to any case in which a genuinely preventative measure based on suspicion of future conduct was held to be the determination of a criminal charge. On this point, domestic and Convention law agree.
50. The final question is whether the non-disclosure of the closed material is consistent with the right to a fair trial. On this question, the critical point appears to me to be that material can be withheld only if a judge has decided that disclosure would be contrary to the public interest. It is a judicial decision and not that of the Secretary of State: see paragraph 4(3) of the Schedule to the Prevention of Terrorism Act 2005 and Part 76 of the Civil Procedure Rules. On the other hand, the Secretary of State may make a control order only if he has reasonable grounds for suspecting that the individual concerned is or has been involved in terrorism-related activity and that an order is necessary for "protecting members of the public from a risk of terrorism". If, on the evidence put before the judge on review, he considers that the decision of the Secretary of State was flawed, the order cannot stand.
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 (1996) 23 EHRR 413 at paragraph 131:
52. The court described the Canadian procedure which they recommended as a model in paragraph 144:
53. These remarks were made in the context of detention pending deportation, a deprivation of liberty in respect of which the person detained is entitled under article 5(4) to have the lawfulness of his detention determined by a court. They seem to me a fortiori applicable to an examination of the lawfulness of a non-derogating control order, which by definition involves no deprivation of liberty. The significant feature is that the Strasbourg court recognised that the confidentiality of security material should be maintained and that the State should be entitled to protect the public interest.
54. 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.
55. I would therefore dismiss the appeals of MB and AF and allow the appeal of the Secretary of State against AF.
BARONESS HALE OF RICHMOND
56. On issues (1) to (3) identified by Ouseley J in the case of AF, I have nothing to add to the reasoning and conclusions of my noble and learned friend, Lord Bingham of Cornhill, with which I agree. On issue (4), however, my approach is somewhat different, an approach which I understand to be shared by my noble and learned friends, Lord Carswell and Lord Brown of Eaton-under-Heywood.
57. The object of all legal proceedings is to do justice according to law: but this is easily said and not so easily done. Doing justice means not only arriving at a just result but arriving at it in a just manner. The overriding objective of the Civil Procedure Rules is to enable the court to deal with cases justly: CPR r. 1.1(1). Of the fundamental importance of the right to a fair trial there can be no doubt. But there is equally no doubt that the essential ingredients of a fair trial can vary according to the subject matter and nature of the proceedings.
58. The basic requirement is to know the case against one and to have an opportunity of meeting it. But in In re K (Infants)  Ch 381, 405, Upjohn LJ identified more detailed principles of a judicial inquiry: "the right to see all the information put before the judge, to comment on it, to challenge it and if needs be to combat it, and to try to establish by contrary evidence that it is wrong." However, as Lord Devlin pointed out in the same case in the House of Lords, at  AC 201, 238:
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.
59. I mention these examples, not because they are factually similar to the present case, but to show that the problem is not a new one and that there are courts which have long been doing their best to try cases justly even though the ordinary principles of judicial inquiry identified by Upjohn LJ cannot be observed in every particular. If procedure is the servant rather than the master, then dealing with some cases "justly" may sometimes require a rather different approach (it follows that I take issue with CPR, r 76.2, which requires that in control order cases the overriding objective be read and given effect in a way which is compatible with the duty to ensure that information is not disclosed contrary to the public interest, thus apparently requiring that the court deal otherwise than justly with at least some cases).
60. The examples of cases concerning children and mental patients fall fairly and squarely within the problem which now confronts us in the control order cases. They too are hearings in which civil rights and obligations are determined for the purpose of article 6(1). I emphasise this, because the powerful submissions from Justice ask us to draw a distinction between such a case and, first, the withholding of information which the authorities do not intend to use to prove their case but which might be helpful to the other side (as in R v H  2 AC 134; and the Strasbourg cases cited in para 62 below), and second, deportation cases in which the State has a right to deport on grounds of national security (as in Chahal v United Kingdom (1996) 23 EHRR 413). While non-disclosure and the use of special advocates might be acceptable in the last two situations, it is argued that it is not acceptable in the first.
61. But I do not think that we can draw such a clear distinction. Chahal may have been a deportation case in which Mr Chahal had no right to be here, but he had been deprived of his liberty for a very long time with a view to deportation, so his rights under article 5 were clearly engaged. There cannot be such a stark distinction between the requirements of article 5(4) and the requirements of article 6(1): and see Al-Nashif v Bulgaria (2002) 36 EHRR 655. The same applies to the Mental Health Review Tribunal Rules, where the issue is whether the patient should continue to be deprived of his liberty. If adaptations to enable the case to be dealt with justly are permissible in such cases, they must in principle be permissible in these.
62. Strasbourg has not yet had to deal with a case exactly on all fours with the present. The principles applicable to disclosure in criminal proceedings were laid down by the Grand Chamber in three cases decided on the same day: Rowe and Davis v United Kingdom (2000) 30 EHRR 1, paras 60, 61; Jasper v United Kingdom (2000) 30 EHRR 441, paras 51, 52; Fitt v United Kingdom (2000) 30 EHRR 480, paras 44, 45; repeated in Edwards and Lewis v United Kingdom: (2004) 40 EHRR 593, para 46 of the Judgment of the Grand Chamber, quoting paras 52 and 53 of the Judgment of the Chamber in 2003; see also PG and JH v United Kingdom, App no 44787/98, Judgment of 25 December 2001; Atlan v United Kingdom (2001) 34 EHRR 833; Dowsett v United Kingdom, App no 39482/98, Judgment of 24 June 2003; and most recently in Botmeh and Alami v United Kingdom, App No 15187/03, Judgment of 7 June 2007, para 37. The most important passage is the following:
63. I take several messages from those cases which are helpful for present purposes. First, even in criminal proceedings, it is recognised that there may be competing interests, which include national security, the need to keep secret police methods of investigation, and to protect the fundamental rights of another person. Secondly, evidence may only be withheld if it is strictly necessary to do so. Thirdly, any difficulties caused to the defence must be "sufficiently counterbalanced" by the measures taken by the judicial authorities, that is, by the court itself. Fourthly, what is sufficient will be specific to the case in question. The European Court of Human Rights will not assess whether the non-disclosure was strictly necessary but will review "whether the decision-making procedure applied in each case complied, as far as possible, with the requirements of adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused" (Rowe and Davis, para 62). Fifthly, however, there is a difference between background information which is not essential to the outcome of the case and evidence which is crucial to its determination (cf, for example, the facts in Edwards and Lewis and Botmeh and Alami). Sixthly, in none of those cases did the court have the assistance of a special advocate as now provided for in that context as well as in control order cases.
64. In several of the above cases, however, the Strasbourg court contemplated that the use of a special advocate might have solved the problem: this is one of the counter-balancing measures which might be adopted by the judicial authorities. This House too has endorsed their use in non-disclosure claims in criminal proceedings: R v H  2 AC 134. The guidance given in that case relating to the treatment of material which may weaken the prosecution case or strengthen the defence case (para 36) could also be applied in control order cases.
65. However, it is necessary to go further than that, and ask whether the use of a special advocate can solve the problem where the Secretary of State wishes to withhold from the controlled person material upon which she wishes to rely in order to establish her case. We are all agreed that these are not criminal proceedings for the purpose of article 6; in ordinary civil proceedings it is appropriate to give weight to the interests of each side; nevertheless, the state is seeking to restrict the ordinary freedom of action which everyone ought to enjoy, in some cases seriously. It seems probable that Strasbourg would apply very similar principles to those applicable in criminal proceedings, but would be more inclined to hold that the measures taken by the judicial authorities had been sufficient to protect the interests of the controlled person. It would all depend upon the nature of the case; what steps had been taken to explain the detail of the allegations to the controlled person so that he could anticipate what the material in support might be; what steps had 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 had been able to challenge it on behalf of the controlled person; and what difference its disclosure might have made. All of these factors would be relevant to whether the controlled person had been "given a meaningful opportunity to contest the factual basis" for the order: see Hamdi v Rumsfeld 542 US 507 (2004), 509, col 2, O'Connor J.
66. I do not think that we can be confident that Strasbourg would hold that every control order hearing in which the special advocate procedure had been used, as contemplated by the 2005 Act and Part 76 of the Civil Procedure Rules, would be sufficient to comply with article 6. However, with strenuous efforts from all, difficult and time consuming though it will be, it should usually be possible to accord the controlled person "a substantial measure of procedural justice". Everyone involved will have to do their best to ensure that the "principles of judicial inquiry" are complied with to the fullest extent possible. The Secretary of State must give as full as possible an explanation of why she considers that the grounds in section 2(1) are made out. The fuller the explanation given, the fuller the instructions that the special advocates will be able to take from the client before they see the closed material. Both judge and special advocates will have to probe the claim that the closed material should remain closed with great care and considerable scepticism. There is ample evidence from elsewhere of a tendency to over-claim the need for secrecy in terrorism cases: see Serrin Turner and Stephen J Schulhofer, The Secrecy Problem in Terrorism Trials, 2005, Brennan Centre for Justice at NYU School of Law. Both judge and special advocates will have stringently to test the material which remains closed. All must be alive to the possibility that material could be redacted or gisted in such a way as to enable the special advocates to seek the client's instructions upon it. All must be alive to the possibility that the special advocates be given leave to ask specific and carefully tailored questions of the client. Although not expressly provided for in CPR r 76.24, the special advocate should be able to call or have called witnesses to rebut the closed material. The nature of the case may be such that the client does not need to know all the details of the evidence in order to make an effective challenge.
67. The best judge of whether the proceedings have afforded a sufficient and substantial measure of procedural protection is likely to be the judge who conducted the hearing. It is highly significant that, in AF Ouseley J concluded, at  EWHC 651 (Admin), para 167:
That is a judgment with which any appeal court should be slow to interfere.
68. But there may still be a few cases in which, under the scheme set out in the 2005 Act and rules, this is not possible. The material which is crucial to demonstrating the reasonable basis of the Secretary of State's suspicions or fears cannot be disclosed in any way which will enable the controlled person to give such answer as he may have. What is to happen then? The key provisions are in the Schedule to the 2005 Act. Paragraph 4(2)(a) provides that rules of court may: