Judgments - Secretary of State for the Home Department (Respondent) v AF (Appellant) (FC) and another (Appellant) and one other action

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73.  It is true that a case which appears, on the basis of one side’s evidence, to be incapable of rebuttal can sometimes be destroyed. The remarks of Megarry J in John v Rees [1970] Ch 345, 402 about “unanswerable charges which, in the event, were completely answered” is often cited. Most lawyers will have heard or read of or even experienced such cases but most will also know how rare they are. Usually, if evidence appears to an experienced tribunal to be irrefutable, it is not refuted.

74.  There are practical limits to the extent to which one can devise a procedure which carries no risk of a wrong decision. It is sometimes said that it is better for ten guilty men to be acquitted than for one innocent man to be convicted. Sometimes it is a hundred guilty men. The figures matter. A system of justice which allowed a thousand guilty men to go free for fear of convicting one innocent man might not adequately protect the public. Likewise, the fact in theory there is always some chance that the applicant might have been able to contradict closed evidence is not in my opinion a sufficient reason for saying, in effect, that control orders can never be made against dangerous people if the case against them is based “to a decisive degree” upon material which cannot in the public interest be disclosed. This, however, is what we are now obliged to declare to be the law.


My Lords,

75.  I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Phillips of Worth Matravers. I agree with it, and I gratefully accept his comprehensive explanation of the background to this case. For the reasons he gives I would allow the appeals and make the orders that he proposes. I wish to add only a few brief remarks of my own.

76.  This case brings into sharp focus once again the acute tension that exists between the urgent need to protect the public from attack by terrorists and the fundamental rights of the individual. The country must be entitled to defend itself against those who would destroy its freedoms. The first responsibility of government in a democratic society is owed to the public. It is to protect and safeguard the lives of its citizens. It is the duty of the court to do all that it can to respect and uphold that principle. But the court has another duty too. It is to protect and safeguard the rights of the individual. In A v Secretary of State for the Home Department [2005] 2 AC 68 the right that was in issue was the right to liberty. In this case it is a procedural requirement of the controlled person’s right to a fair trial. This is a right that belongs to everyone, as the opening words of article 6(1) of the European Convention on Human Rights remind us - even those who are alleged to be the most capable of doing us harm by means of terrorism.

77.  The tension is all the more acute in this case because the control order regime was introduced by the Prevention of Terrorism Act 2005 (“PTA 2005”) in response to the judgment of this House that the preventive detention regime for aliens suspected of being involved in international terrorism was incompatible with their right to liberty under article 5(1) of the European Convention. Its aim is to protect the public from the risk of terrorist attacks by persons who for reasons of national security cannot, as the law stands at present, either be deported or prosecuted. No-one could reasonably object to this. But when account is taken of their nature, duration, effects and manner of implementation (see Engel v The Netherlands (No 1) (1976) 1 EHRR 647, para 59), there is no doubt that control orders severely restrict the freedom of movement of those who are subjected to them. They are highly contentious, as Lord Brown of Eaton-under-Heywood observed in Secretary of State for the Home Department v JJ [2007] UKHL 45, [2008] AC 385, para 86. At one extreme they are not far short of house arrest, which plainly is a form of detention or imprisonment. But they can be designed in such a way that their cumulative effect does not deprive the controlled person of his right to liberty within the meaning of article 5(1): Secretary of State for the Home Department v MB [2007] UKHL 46, [2008] AC 440, para 11, per Lord Bingham of Cornhill. Having found an alternative which avoids that objection, is the government’s attempt to find a way of protecting the public which is not incompatible with Convention rights to be rendered ineffective because another obstacle derived from the Convention is put in its path?

78.  At the heart of the problem is the use of special advocates where the Secretary of State wishes to rely in support of her case on closed material. In Secretary of State for the Home Department v MB [2008] AC 440, para 66, Baroness Hale of Richmond said that, with strenuous efforts from all, difficult and time consuming though it would be, it should usually be possible to accord the controlled person a substantial measure of procedural justice. Among the factors that would have a part to play in the assessment would be how effectively the special advocate had been able to challenge the material withheld on behalf of the controlled person and what difference its disclosure would have made. Lord Brown said in para 92 that the question for the Administrative Court was whether it was possible to confirm the control orders consistently with there having been overall fairness in the appeal process. Lord Bingham too, in para 35, agreeing with Lord Woolf CJ in R (Roberts) v Parole Board [2005] 2 AC 738, para 83(vii), said that the task of the court in any given case was to decide, looking at the process as a whole, whether a procedure had been used which involved significant injustice to the controlled person.

79.  It has to be said, in retrospect and with all the benefits that this brings, that this was an optimistic assessment. It assumed that the disadvantages that the use of closed material gives rise to could be overcome by looking at the proceedings in the round. As a way of testing whether a substantial measure of procedural justice has been achieved in situations where national security is at risk, this has its attractions. It suggests that no one factor need dominate all the others. It allows for the case where not even the gist can be disclosed to the controlled person by balancing the undoubted protections that are built into the procedure against the disadvantages that non-disclosure gives rise to. For its part the Grand Chamber in A v United Kingdom, (Application No 3455/05) (unreported) 19 February 2009, recognised that account can be taken of the fact that the judge who hears the application under section 3(10) of PTA 2005 is a fully independent judge who is best placed to ensure that no material is unnecessarily withheld, and that the special advocate can provide an important additional safeguard by questioning the Secretary of State’s witnesses on the need for secrecy, by making submissions to the judge regarding the case for additional disclosure and by testing the evidence and presenting arguments on behalf of the controlled person during the closed hearings: paras 218, 219. It accepted too that the judge is in the best position to form a judgment about the extent to which the controlled person is disadvantaged by the lack of disclosure - or, to put it the other way, the proceedings over which he is presiding afford a sufficient measure of procedural protection.

80.  The problem with that approach however has now been exposed by the Grand Chamber in A v United Kingdom. It took as its starting point the urgent need at the relevant time to protect the public from terrorist attack: para 216. It recognised 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. It accepted too that important protections are built into the procedure, and it made allowance for this factor. It acknowledged that the requirement of fairness under article 5(4) does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances: para 203. But in two vitally important sentences it made it clear that the procedural protections can never outweigh the controlled person’s right to be provided with sufficient information about the allegations against him to give effective instructions to the special advocate.

81.  In para 218 the Grand Chamber said that where full disclosure was not possible, article 5(4) required that the difficulties that this causes must be counterbalanced in such a way that the applicant still has the possibility effectively to challenge the allegations against him. In para 220 it said that, where the open material consisted purely of general assertions and the court’s decision was based solely or to a decisive degree on closed material, the procedural requirements of article 5(4) would not be satisfied. The controlled person must be given sufficient information about the allegations against him to give effective instructions to the special advocate. This is the bottom line, or the core irreducible minimum as it was put in argument, that cannot be shifted.

82.  In that case the judicial control that was in issue was by SIAC over the lawfulness of detention under section 23 of the Anti-terrorism, Crime and Security Act 2001. The Court was presented with a detailed and fully reasoned Memorial by the Government of the United Kingdom in which it was pointed out that the practical effect of the result contended for by the applicants was likely to be that a State might not be able to detain a terrorist suspect at all. Nevertheless it held that the impact of the deprivation of liberty on the applicants’ fundamental rights was such as to import the same fair trial guarantees as article 6(1) in its criminal aspect: para 217. Mr Eadie QC for the Secretary of State very properly accepts that the effects of a control order on the controlled person are such that the same fair trial guarantees apply in his case too. He submits that account should be taken of the fact that they are less severe than those imposed by detention, but I do not think that there is room here for such a distinction. To adopt the language of the Strasbourg court in Garcia Alva v Germany (2001) 37 EHRR 335, para 39, the proceedings should in principle be conducted so as to meet to the largest extent possible the basic requirements of a fair trial. The difficulties that less than full disclosure gives rise to must be counterbalanced in such a way that the controlled person still has the possibility effectively to challenge the allegations against him. If that cannot be done, the judge must exercise the power that he is given by section 3(12) of PTA 2005 and quash the control order.

83.  The approach which the Grand Chamber has adopted is not, as it seems to me, at all surprising. The principle that the accused has a right to know what is being alleged against him has a long pedigree. As Lord Scott of Foscote observed in A v Secretary of State for the Home Department [2005] 2 AC 68, para 155, a denunciation on grounds that are not disclosed is the stuff of nightmares. The rule of law in a democratic society does not tolerate such behaviour. The fundamental principle is that everyone is entitled to the disclosure of sufficient material to enable him to answer effectively the case that is made against him. The domestic and European authorities on which this proposition rests were referred to by Lord Bingham in R (Roberts) v Parole Board [2005] 2 AC 738, paras 16 and 17. In Secretary of State for the Home Department v MB [2008] AC 440, para 30 he drew attention to McLachlin CJ’s observation for the Supreme Court of Canada in Charkaoui v Canada (Minister of Citizenship and Immigration) [2007] 1 SCR 350, para 53, that a person whose liberty is in jeopardy must know the case he has to meet and to Hamdi v Rumsfeld (2004) 542 US 507, 533 where it was declared by O'Connor J for the majority in the US Supreme Court that for more than a century it has been clear that parties whose rights are to be affected are entitled to be heard and that in order that they may enjoy that right they must first be notified.

84.  I believe that a principled approach to the problem could not do other than the Grand Chamber has done in setting out the basic rule that must be applied. This makes it impossible to support the solution that commended itself to the majority in this House in Secretary of State for the Home Department v MB [2008] AC 440. I cannot agree with the way Sedley LJ read that case in his dissenting opinion in the Court of Appeal: Secretary of State for the Home Department v AF [2009] 2 WLR 423. In my opinion the majority in the Court of Appeal correctly understood the effect of the opinions of the majority in MB. But I think that there is much force in his protest that the answer to the question what difference disclosure might have made is that you can never know, and that for a judge to hold that a hearing in which the party affected has had no opportunity to answer is a fair hearing negates the judicial function which is crucial to the controlled order system: see paras 113, 115. The consequences of a successful terrorist attack are likely to be so appalling that there is an understandable wish to support the system that keeps those who are considered to be most dangerous out of circulation for as long as possible. But the slow creep of complacency must be resisted. If the rule of law is to mean anything, it is in cases such as these that the court must stand by principle. It must insist that the person affected be told what is alleged against him.

85.  The principle is easy to state, but its application in practice is likely to be much more difficult. In Secretary of State for the Home Department v AN [2008] EWHC 372 (Admin), Mitting J referred to the guidance that he found in the speeches in Secretary of State for the Home Department v MB [2008] AC 440. In para 9 he said:

“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.

86.  What will be needed in the application of this principle will, of course, vary from case to case. The judge is entitled to take the view that a person who really does have a case to answer will make every effort to provide his special advocate with the information he needs to make the challenge. He will also note that the Strasbourg court was careful not to insist on disclosure of the evidence. It is a sufficient statement of the allegations against him, not the underlying material or the sources from which it comes, that the controlled person is entitled to ask for. The judge will be in the best position to strike the balance between what is needed to achieve this and what can properly be kept closed.

87.  That having been said, there are bound to be cases where, as Mitting J said in para 10 of his judgment in AN, the procedure will be rendered nugatory because the details cannot be separated out from the sources or because the judge is satisfied that more needs to be disclosed than the Secretary of State is prepared to agree to. Lord Bingham used the phrase “effectively to challenge” in Secretary of State for the Home Department v MB [2008] AC 440, para 34. It was adopted by the Grand Chamber in A v United Kingdom, para 218. It sets a relatively high standard. It suggests that where detail matters, as it often will, detail must be met with detail. In Secretary of State for the Home Department v AF [2008] EWHC 453 (Admin), para 42, Stanley Burton J said that the allegations in the additional disclosure were insufficiently specific to enable AF to give specific instructions beyond a general denial. There may indeed be, as Mitting J suggested in para 10, a significant number of cases of that kind. If that be so, the fact must simply be faced that the system is unsustainable.

88.  The House is in no position to say more, as it declined the Secretary of State’s invitation to look at the closed material. I believe that it was right to do so. The judge at first instance must have access to it where it is said that disclosure of relevant material will be contrary to the public interest, and the Court of Appeal may perhaps need to too if this is necessary for the exercise of its jurisdiction under section 11(3) of PTA 2005. But the process should stop there. The function of the House, as the final court of appeal, is to give guidance on matters of principle. Its judgments must be open to all, not least to the controlled person. The giving of reasons in a closed judgment, which would be inevitable if it were to be based to any extent on closed material, is inimical to that requirement. It is hard to imagine any circumstances in which scrutiny of such material by the House, or by the Supreme Court when it comes into existence, would be necessary or appropriate.


My Lords,

89.  I have had the great advantage of reading in draft the opinion on these appeals of my noble and learned friend Lord Phillips of Worth Matravers and agree that for the reasons he has given each of these appeals should be allowed. I am in general agreement also with the additional comments made by my noble and learned friends Lord Hope of Craighead, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood. I want to add just a few words of my own on some of the constitutional implications that seem to me to emerge from these appeals.

90.  The Prevention of Terrorism Act 2005 is expressed in its preamble to be

“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.

91.  As Lord Hope has observed (para 71 of his opinion) the government has a responsibility for the protection of the lives and well-being of those who live in this country and a duty to promote the enactment of such legislation as it considers necessary for that purpose. It is evident that the government regards the control order provisions contained in the 2005 Act as being necessary for that purpose. The duty of the courts, however, is rather different. It is not, directly at least, a duty to protect the lives of citizens. It is a duty to apply the law. Where the relevant law is, as here, statutory, the courts’ duty is to construe the statute and faithfully to apply it so construed. In the process of construction the courts can and should take into account the purposes for which the statute was enacted and, by doing so, endeavour to reach a construction that promotes those purposes. The courts should also take into account treaty obligations by which the United Kingdom is bound under international law and assume, unless the language of the statute compels the contrary conclusion, that the legislature intended the statute to be consistent with those treaty obligations. All this is trite law but needs, I think, to be borne in mind when approaching the construction of the relevant provisions of the 2005 Act.

92.  The 2005 Act was enacted in order to protect the citizens of this country from the risk of loss of life or physical injury caused by terrorist activities. But the Human Rights Act 1998 is also part of our law and that Act, too, must be construed and applied by the courts. The 1998 Act incorporated into our domestic law the rights, inter alia, set out in Article 6 of the European Convention on Human Rights. It is worth repeating the first sentence of Article 6(1) :

“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.

93.  It is, of course, open to Parliament to enact legislation that is incompatible with one or more of the Convention rights. The ability to do so is inherent in the constitutional role of a sovereign Parliament. One of the issues which these appeals appeared to me, when I first read the papers, to raise was whether that was what Parliament, in enacting the 2005 Act, had done. In that case, regardless of the question whether the section 3(10) judicial proceedings had afforded the appellants a fair hearing, these appeals would have had to be dismissed on the simple ground that the making of the control orders had complied with the statutory conditions prescribed by the 2005 Act, that the procedures prescribed by the Act for the judicial proceedings had been followed and that that was enough to ensure the validity of the control orders.

94.  However, in Secretary of State for the Home Department v MB and AF [2008] AC 440, a case which raised the same issues regarding control orders as are raised by these appeals, my noble and learned friend Baroness Hale of Richmond expressed the opinion at p 491, that - “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'.” This addition to the statutory language by the reading-in of an express “fair trial” exception bars the withholding from an individual on whom a control order has been, or is proposed to be, imposed of any material on which reliance is placed by the Secretary of State as justifying the imposition of the control order. In effect, the statutory power to impose a control order on an individual cannot be exercised unless the Secretary of State is prepared to disclose to the individual the material proposed to be relied on in the requisite judicial proceedings.

95.  My Lords, I am not sure that, if the point had been taken on these appeals, I would have agreed with my noble and learned friend’s reading-down of the statutory power to make control orders. It seems to me very well arguable that the detail in which and the precision with which the statutory procedure for the judicial hearings is laid down in the 2005 Act makes it impermissible to argue that compliance with the express statutory requirements is not enough to ensure the validity of control orders and that, in addition, other requirements of a “fair hearing” for Article 6(1) purposes must also be met. This point, however, when put to Mr James Eadie QC, counsel for the Secretary of State, was received with no enthusiasm. The Secretary of State accepts, as I understand it, that unless the judicial procedure prescribed by the 2005 Act, with its involvement of special advocates, closed hearings and the like, results in a “fair hearing” for Article 6(1) purposes, the control orders in question cannot be held to have been validly made, or, as the case may be, validly confirmed. Without the reading-down of the statutory power to make these orders proposed by Baroness Hale in MB and AF that addition to the express statutory requirements could not, in my opinion, be accepted. Without that reading-down, the sovereignty of Parliament would, in my opinion, require the conclusion that where the express statutory requirements have been complied with the control orders would have been validly made, or confirmed, whether or not the judicial procedure involved a breach of the controlees’ Article 6(1) Convention rights. But the Secretary of State has accepted that the relevant statutory provisions should be construed with the words proposed by my noble and learned friend read into paragraph 4(3)(d) of the Schedule and with the consequence that valid control orders can be made only where they are accompanied by judicial proceedings that constitute a fair hearing for Article 6(1) purposes. So be it.

96.  It follows that the only issue on this appeal is the fair hearing issue. Does a judicial process the purpose of which is to impose, or to confirm the imposition of, onerous obligations on individuals on grounds and evidence of which they are not and cannot be informed constitute a fair hearing? The judgment of the Grand Chamber in A v United Kingdom has made clear that, for the purpose of Strasbourg jurisprudence and Article 6(1) of the Convention, it does not. I am in respectful agreement with the reasons given by the Grand Chamber for that conclusion but, in my opinion, and in agreement with the observations made by Sedley LJ in paragraphs 113 to 116 of his dissenting judgment in the Court of Appeal, the common law, without the aid of Strasbourg jurisprudence, would have led to the same conclusion. An essential requirement of a fair hearing is that a party against whom relevant allegations are made is given the opportunity to rebut the allegations. That opportunity is absent if the party does not know what the allegations are. The degree of detail necessary to be given must, in my opinion, be sufficient to enable the opportunity to be a real one. The disclosure made to each of these appellants was insufficient to afford him a real opportunity for rebuttal. He did not, therefore, have a fair hearing for Article 6(1) purposes and these appeals must be allowed.

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