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


SESSION 2008-09

[2009] UKHL 28

on appeal from: [2008]EWCA Civ 1148




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

Appellate Committee

Lord Phillips of Worth Matravers

Lord Hoffmann

Lord Hope of Craighead

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Baroness Hale of Richmond

Lord Carswell

Lord Brown of Eaton-under-Heywood


Appellant (AF):

Lord Pannick QC

Timothy Otty QC

Zubair Ahmad

Tom Hickman

(Instructed by Middleweeks)

Appellant (AE):

Tim Owen QC

Ali Bajwa

(Instructed by Chambers)

Appellant (AN):

Tim Owen QC

Raza Husain

(Instructed by Birnberg Peirce & Partners)


James Eadie QC

Tim Eicke, Cecilia Ivimy

Andrew O'Connor, Kate Grange

(Instructed by Treasury Solicitors)

Interveners (Justice):

Michael Fordham QC

Jemima Stratford, Shaheed Fatima

Tom Richards

(Instructed by Clifford Chance)

Special Advocates:

Hugo Keith QC, Jeremy Johnson (AF)

Michel Supperstone QC, Tom de la Mare


Angus McCullough, Paul Bowen (AN)

(Instructed by the Special Advocates Support Office)

Hearing dates:

19 FEBRUARY, 2, 3, 4, 5 AND 9 MARCH 2009






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

[2009] UKHL 28


My Lords,


1.  The three appellants, AF, AN and AE, are subject to non-derogating control orders (“control orders”) involving significant restriction of liberty. A control order was first made against AF on 24 May 2006, against AN on 4 July 2007 and against AE on 15 May 2006. Each control order was made pursuant to section 2 of the Prevention of Terrorism Act 2005 (“the PTA”) on the ground that the Secretary of State had reasonable grounds for suspecting that the appellant was, or had been, involved in terrorism-related activity. The issue raised by their appeals is whether, in each case, the procedure that resulted in the making of the control order satisfied the appellant’s right to a fair hearing guaranteed by article 6 of the European Convention on Human Rights (“article 6”) in conjunction with the Human Rights Act 1998 (“the HRA”). Each contends that this right was violated by reason of the reliance by the judge making the order upon material received in closed hearing the nature of which was not disclosed to the appellant.

The history of control orders

2.  After the tragic events of September 11 2001 the Secretary of State made a Derogation Order under section 14 of the HRA and then enacted the Anti-terrorism, Crime and Security Act 2001 (“the ATCSA”). Section 23 of the ATCSA gave the Secretary of State the power to detain a suspected international terrorist with a view to his intended deportation. A suspected international terrorist was an alien whose presence in the United Kingdom the Secretary of State reasonably believed to be a risk to national security and whom he reasonably suspected to be a terrorist. An appeal against certification as a suspected international terrorist lay to the Special Immigration Appeals Commission (“SIAC”). Provision was made for SIAC to receive material in closed hearings at which the suspects would be represented by special advocates, who would not be permitted to consult their clients in order to take instructions in relation to the closed material.

3.  In A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68 this House quashed the Derogation Order and declared section 23 of the ATCSA incompatible with articles 5 and 14 of the Convention. Parliament’s response was to enact the PTA, which made provision for the making of derogating and non-derogating control orders.


4.  The following are the relevant provisions of the PTA:

Section 2(1) gives the Secretary of State power to make a control order against an individual if he:

“(a)  has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and

(b)   considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual.”

Section 3 makes provision for the supervision by the court of the making of control orders. Section 3(10) makes provision for a hearing (“the section 3(10) hearing”) at which the function of the court is to determine whether the decision of the Secretary of State that the requirements of section 2(1)(a) and (b) were satisfied and that the obligations imposed by the order were necessary was flawed.

5.  The rules that govern a section 3(10) hearing were summarised by Lord Bingham of Cornhill in Secretary of State for the Home Department v MB and AF [2007] UKHL 46; [2008] AC 440, to which I shall shortly be referring, and I shall gratefully adopt that summary:

“26.  The Schedule to the 2005 Act provides a rule-making power applicable to both derogating and non-derogating control orders. It requires the rule-making authority (paragraph 2(b)) to have regard in particular to the need to ensure that disclosures of information are not made where they would be contrary to the public interest. Rules so made (paragraph 4(2)(b)) may make provision enabling the relevant court to conduct proceedings in the absence of any person, including a relevant party to the proceedings and his legal representative. Provision may be made for the appointment of a person to represent a relevant party: paragraphs 4(2)(c) and 7. The Secretary of State must be required to disclose all relevant material (paragraph 4(3)(a)), but may apply to the court for permission not to do so: paragraph 4(3)(b). Such application must be heard in the absence of every relevant person and his legal representative (paragraph 4(3)(c)) and the court must give permission for material not to be disclosed where it considers that the disclosure of the material would be contrary to the public interest: paragraph 4(3)(d). The court must consider requiring the Secretary of State to provide the relevant party and his legal representative with a summary of the material withheld (paragraph 4(3)(e)), but the court must ensure that such summary does not contain information or other material the disclosure of which would be contrary to the public interest: paragraph 4(3)(f). If the Secretary of State elects not to disclose or summarise material which he is required to disclose or summarise, the court may give directions withdrawing from its consideration the matter to which the material is relevant or otherwise ensure that the material is not relied on: paragraph 4(4).

27.  CPR Pt 76 gives effect to the procedural scheme authorised by the Schedule to the 2005 Act. Rule 76.2 modifies the overriding objective of the Rules so as to require a court to ensure that information is not disclosed contrary to the public interest. Rule 76.1(4) stipulates that disclosure is contrary to the public interest if it is made contrary to the interests of national security, the international relations of the United Kingdom, the detection or prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest. Part III of the Rule applies to non-derogating control orders. It is unnecessary to rehearse its detailed terms. Provision is made for the exclusion of a relevant person and his legal representative from a hearing to secure that information is not disclosed contrary to the public interest: rule 76.22. Provision is made for the appointment of a special advocate whose function is to represent the interests of a relevant party (rules 76.23, 76.24), but who may only communicate with the relevant party before closed material is served upon him, save with permission of the court: rules 76.25, 76.28(2). The ordinary rules governing evidence and inspection of documents are not to apply (rule 76.26): evidence may be given orally or in writing, and in documentary or any other form; it may receive evidence which would not be admissible in a court of law; it is provided by rule 76.26(5) that ‘Every party shall be entitled to adduce evidence and to cross-examine witnesses during any part of a hearing from which he and his legal representative are not excluded'.”

6.  38 individuals have been subjected to control orders under the PTA. Of these 7 have absconded. Those who did not abscond, or some of them, have generated an extraordinary volume of litigation. The section 3(10) hearings themselves are substantial undertakings, involving as they do open and closed hearings and two sets of advocates representing those who are subject to the orders, whom I shall describe by the inelegant invented noun as “controlees". The care and industry devoted by both judges and advocates to ensuring that the interests of the controlees are properly considered deserves recognition. It exemplifies the respect that is accorded by those involved in the administration of justice in this country both to human rights and to the rule of law.

7.  The section 3(10) hearing in many cases proved merely the start of a lengthy saga. The Court of Appeal at paragraphs 9 and 10 describes the series of substantial hearings that have involved AF. This is the second time that his case has been before this House and the eighth substantial hearing that it has received. Nor will this be the last. I propose to pick up the story on the occasion that the case of MB came before the Court of Appeal, a hearing over which I presided. MB and AF were subsequently co-appellants to this House.

Secretary of State for the Home Department v MB

8.  This appeal [2006] EWCA Civ 1140, [2007] QB 415 was brought by the Secretary of State against a decision of Sullivan J holding the PTA incompatible with the Convention. One of the reasons for so holding was that MB had not had a fair hearing in that the court had been constrained by the provisions of the PTA to reach a decision on the basis of closed evidence of which MB was unaware and which he was therefore not in a position to controvert. The Judge had found that the case against MB was wholly contained within the closed material and that, without access to this material, MB could not make an effective challenge to what was, in the open case, no more than a bare assertion.

9.  The Court of Appeal accepted that the justification for imposing the control order on MB lay in the closed material. It held, however, that the use of closed material had already been approved in earlier decisions of the Court of Appeal which were binding on the court. It reversed the judge both on this issue and on others raised by the appeal, which was accordingly allowed.

10.  MB appealed to this House, together with AF. Once again other issues were raised by that appeal that are not material to the present debate. As in MB the Secretary of State’s case against AF lay in the closed material. On the section 3(10) hearing [2007] EWHC 651 (Admin) Ouseley J had held at para 61 that it was clear that the essence of the case against AF was in the closed material and that he did not know what that case was. The judge concluded, however, at para 167:

“I should add that looking at the nature of the issue, namely necessary restrictions on movement in an important interest, and at the way in which the Special Advocates were able to and did deal with the issues on the closed material, I do not regard the process as one in which AF has been without a substantial and sufficient measure of procedural protection.”

11.  Lord Bingham did not share this view. He quoted a series of judicial dicta from sources of high standing to the effect that a fair hearing requires that a party must be informed of the case against him so that he can respond to it. Commenting on the decision of this House in R (Roberts) v Parole Board [2005] UKHL 45; [2005] 2 AC 738, he remarked at para 34:

“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.”

12.  Lord Bingham expressed the following conclusion at para 41 in respect of MB:

“This is not a case (like E) in which the order can be justified on the strength of the open material alone. Nor is it a case in which the thrust of the case against the controlled person has been effectively conveyed to him by way of summary, redacted documents or anonymised statements. It is a case in which, on the judge’s assessment which the Court of Appeal did not displace, MB was confronted by a bare, unsubstantiated assertion which he could do no more than deny. I have difficulty in accepting that MB has enjoyed a substantial measure of procedural justice, or that the very essence of the right to a fair hearing has not been impaired.”

In relation to AF, Lord Bingham said this, as para 43:

“This would seem to me an even stronger case than MB‘s. If, as I understand the House to have accepted in Roberts, the concept of fairness imports a core, irreducible minimum of procedural protection, I have difficulty, on the judge’s findings, in concluding that such protection has been afforded to AF. The right to a fair hearing is fundamental. In the absence of a derogation (where that is permissible) it must be protected. In this case, as in MB‘s, it seems to me that it was not.”

13.  Lord Hoffmann took a different view. He considered that the use of closed material, coupled with the protection afforded by special advocates, had been approved by the Strasbourg court:

“51.  Thus a decision that article 6 does not allow the Secretary of State to rely on closed material would create a dilemma: either he must disclose material which the court considers that the public interest requires to be withheld, or he must risk being unable to justify to the court an order which he considers necessary to protect the public against terrorism. It was this dilemma, and the way in which it should be resolved, which the Strasbourg court recognised in Chahal v United Kingdom 23 EHRR 413, para 131:

       'The court recognises that the use of confidential material may be unavoidable where national security is at stake. This does not mean, however, that the national authorities can be free from effective control by the domestic courts whenever they choose to assert that national security and terrorism are involved. The court attaches significance to the fact that, as the interveners pointed out in connection with article 13 (see para 144 below), in Canada a more effective form of judicial control has been developed in cases of this type. This example illustrates that there are techniques which can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice.’

52.  The court described the Canadian procedure which they recommended as a model in para 144:

‘[A] Federal Court judge holds an in camera hearing of all the evidence, at which the applicant is provided with a statement summarising, as far as possible, the case against him or her and has the right to be represented and to call evidence. The confidentiality of security material is maintained by requiring such evidence to be examined in the absence of both the applicant and his or her representative. However, in these circumstances, their place is taken by a security-cleared counsel instructed by the court, who cross-examines the witnesses and generally assists the court to test the strength of the state’s case. A summary of the evidence obtained by this procedure, with necessary deletions, is given to the applicant.’”

14.  Lord Hoffmann commented, at para 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.”

15.  The remaining three members of the committee reached conclusions which fell between those of Lord Bingham and Lord Hoffmann. They expressed the view that in some cases it would be possible for the controlee, with the assistance of the special advocate, to have a fair trial notwithstanding the admission of closed material and that in others it would not. The fair trial issue was fact specific and the trial judge was best placed to resolve it.

16.  Baroness Hale of Richmond at para 66 expressed the view that one could not be confident that Strasbourg would hold that every control order hearing in which the special advocate procedure had been used would be sufficient to comply with article 6 but that, with strenuous efforts from all, it should usually be possible to accord the controlled person “a substantial measure of procedural justice” - the phrase used by the Strasbourg court in Chahal. Significantly, she was also inclined to accept the view of Ouseley J that this test had been satisfied in the case of AF, notwithstanding that the judge had observed that the essence of the case against him lay in the closed material.

17.  In expressing her conclusions, Baroness Hale said this at para 74:

“It follows that I cannot share the view of Lord Hoffmann, that the use of special advocates will always comply with article 6; nor do I have the same difficulty as Lord Bingham, in accepting that the procedure could comply with article 6 in the two cases before us. It is quite possible for the court to provide the controlled person with a sufficient measure of procedural protection even though the whole evidential basis for the basic allegation, which has been explained to him, is not disclosed.”

The last sentence of this passage contains an ambiguity. “Even though the whole evidential basis…is not disclosed” could mean (i) “even though none of the evidential basis is disclosed” or (ii) “even though not all of the evidential basis is disclosed". It seems that some have read it in one way and some in another.

18.  If some found Baroness Hale’s observations to be to some extent enigmatic, the same was true to a greater degree in respect of a passage in para 90 of the opinion of Lord Brown of Eaton-under-Heywood:

“I agree further that the special advocate procedure, highly likely though it is that it will in fact safeguard the suspect against significant injustice, cannot invariably be guaranteed to do so. There may perhaps be cases, wholly exceptional though they are likely to be, where, despite the best efforts of all concerned by way of redaction, anonymisation, and gisting, it will simply be impossible to indicate sufficient of the Secretary of State’s case to enable the suspect to advance any effective challenge to it. Unless in these cases the judge can nevertheless feel quite sure that in any event no possible challenge could conceivably have succeeded (a difficult but not, I think, impossible conclusion to arrive at — consider, for example, the judge’s remarks in AF’s own case, set out by my noble and learned friend Baroness Hale of Richmond at para 67 of her opinion), he would have to conclude that the making or, as the case may be, confirmation of an order would indeed involve significant injustice to the suspect.”

19.  The portion that I have emphasised has given rise to debate as to whether the House recognised a “makes no difference” principle under which fair process does not require that the nature of the case against the controlee should be disclosed to him if the cogency of the closed material is such as to satisfy the judge that no effective challenge could be made to it.

20.   The conclusion of the majority of the House was that there would be cases, albeit rare ones, where the failure to disclose closed material to the controlee would be incompatible with the article 6 requirement of a fair trial. Baroness Hale proposed that in these circumstances it was both possible and desirable to read down the relevant statutory provisions rather than make a declaration of incompatibility. She said, at para 72:

“In my view, therefore, paragraph 4(3)(d) of the Schedule to the 2005 Act, should be read and given effect ‘except where to do so would be incompatible with the right of the controlled person to a fair trial'. Paragraph 4(2)(a) and rule 76.29(8) would have to be read in the same way. This would then bring into play rule 76.29(7), made under paragraph 4(4) of the Schedule. Where the court does not give the Secretary of State permission to withhold closed material, she has a choice. She may decide that, after all, it can safely be disclosed (experience elsewhere in the world has been that, if pushed, the authorities discover that more can be disclosed than they first thought possible). But she may decide that it must still be withheld. She cannot then be required to serve it. But if the court considers that the material might be of assistance to the controlled person in relation to a matter under consideration, it may direct that the matter be withdrawn from consideration by the court. In any other case, it may direct that the Secretary of State cannot rely upon the material. If the Secretary of State cannot rely upon it, and it is indeed crucial to the decision, then the decision will be flawed and the order will have to be quashed.”

Not only did this proposal find favour with Lord Carswell and Lord Brown; it was accepted, not without reservation, by Lord Bingham. Each case was remitted to the trial judge for further consideration in the light of the observations of the committee.

21.  The decision in MB was received with some reservations. The House will be aware of expressions of concern in two respects. First it was suggested that, perhaps because the House had deliberately chosen not to view the closed material, it had taken too sanguine a view of the extent to which Special Advocates could respond effectively to material on which they were not able to take instructions from those they represented. Secondly the question of whether the House had approved a “makes no difference” principle was giving rise to uncertainty. Had it done so or, conversely, did it follow from the decision of the House that there was a “core irreducible minimum” of the allegations against a controlee that had to be disclosed? These concerns led the Court of Appeal to take the unusual course of granting permission to appeal in the present case.

The relevant facts in these appeals