(back to preceding text)

22.  There is no need to review in any detail the facts relating to each appellant. What is significant is the extent to which the case against each was disclosed to him, and this is in each case sufficiently spelt out by the judge concerned.

23.  AF has both United Kingdom and Libyan nationality. He was born in the United Kingdom in 1980 but brought up in Libya. His English mother is divorced from his Libyan father. He came to England

with his father in December 2004. The open case against him alleged links with Islamist extremists, some of whom are affiliated to an organisation proscribed under the Terrorism Act 2000. He established that he had innocent links with those who were named. Additional disclosure that was made in relation to a trip by AF to Egypt added nothing significant to the case against him. It is common ground that the open material did not afford the Secretary of State reasonable grounds for suspicion of involvement by AF in terrorism-related activity. The case against him was to be found in the closed material.

24.   AF’s case following remission came before Stanley Burnton J. In a judgment delivered on 10 March 2008 [2008] EWHC 453 (Admin) he held that although the special advocates had done all that was reasonably possible without instructions from AF, the absence of such instructions had meant that their efforts were ineffective. Subject to one point, the Secretary of State would have to elect between making further disclosure or allowing the control order to be quashed. That point was that there was one aspect of the case against AF on which the judge could be “quite sure that in any event no possible challenge could conceivably have succeeded". If the “makes no difference” principle fell to be applied, then the control order would stand. He held a separate hearing on the issue of whether the “makes no difference” principle had been laid down by the majority of the House in MB and concluded that it had not [2008] EWHC 689 (Admin).

25.  AN is a British citizen, born in Derby in 1981. In September 2005 he moved with his wife and son to Syria. There he was detained and deported to the United Kingdom in March 2007. The open case against him included alleged connection with extremists and made general allegations of involvement in attack planning and facilitation of the participation by extremists in terrorism-related activities overseas. In the open judgment after the section 3(10) hearing dated 29 February 2008 [2008] EWHC 372 (Admin) Mitting J held, for reasons set out in the closed judgment, that he was satisfied that AN had not had disclosed to him a substantial part of the grounds for suspecting that he had been involved in terrorism-related activity and that without disclosure he would not be in a position personally to meet those aspects of the case against him.

26.  Mitting J summarised his perception of the effect of the decision of this House in MB and its consequences as follows:

“9.  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. This means that, if he chooses to do so, he can give and call evidence about the issues himself.

10.  AN does not know the gist of significant grounds of suspicion raised against him. I have already determined, in a closed judgment, that the material which I have considered is capable of founding reasonable grounds to suspect that he has been involved in terrorism related activity. I have identified in a closed disclosure judgment what must be disclosed to him to fulfil his right to a fair hearing in accordance with my understanding of the speeches of the majority in MB. I do so with disquiet, because the factors which require further disclosure in this case are likely to arise in many others, with the result that the non-derogating control order procedure may be rendered nugatory in a significant number of cases in which the grounds for suspecting that a controlled person has been involved in terrorism related activities may otherwise be adjudged reasonable.”

He put the Secretary of State to her election to disclose the material that he had identified in his closed judgment or to cease to rely on it, but stayed the effect of his order pending her appeal to the Court of Appeal.

27.  AE is an Iraqi national. He entered the United Kingdom in January 2002 and claimed political asylum. Relatively lengthy allegations of grounds for suspicion of AE’s involvement in terrorism-related activities were made in the open proceedings, but these were almost all in very general terms - too general for any response other than a general denial to be expected. Typical is the first and perhaps the most serious allegation:

“The security service investigation of AE has revealed he has a considerable jihadi pedigree, and that prior to his arrival in the UK he took part in both terrorist training and activities".

28.  It fell to Silber J to apply MB to AE’s case, and that on two occasions. The first was on a section 3(10) hearing in relation to a second control order made by the Secretary of State in place of an initial order that she had withdrawn. Judgment was given on 1 February 2008 [2008] EWHC 132 (Admin). The second related to the renewal of that order and to issues arising in relation to its variation. Judgment was given on 20 March 2008 [2008] EWHC 585 (Admin).

29.  In the first judgment Silber J concluded in para 40 that the effect of MB was that he had to ascertain “looking at the process as a whole, whether a process has been used which involved a serious injustice to the controlled person". He held, having particular regard to the role played by the special advocate in the closed hearing, that it had not.

30.  Silber J analysed the judgment in MB in much greater depth in his second judgment. He accepted in para 43 that the open case for the Secretary of State went “nowhere near setting out the full case against AE", but concluded that it did not follow from this that the procedure was unfair. Earlier he summarised the effect of the decision of this House in MB as follows:

“So my conclusion is that there is no minimum level of information which has invariably in every case to be set out in the open material to ensure compliance with the article 6 rights of the controlled person. Indeed the task of the court in deciding if there has been an infringement of the controlled person’s article 6 rights is to look with the appropriate intense care described in MB at what occurs in the closed proceedings as well as considering the open evidence and the open proceedings.”

31.  In reaching this conclusion Silber J stated that he had borne in mind that

“the information disclosed in the open case was very scant and three members of the Appellate Committee concluded that it would be exceptional for there to be a finding of infringement with article 6 rights of a controlled person when the special advocate procedure is adopted. This so that even in cases where the controlled person has not been informed of the essentials of the case against him or her or the evidence relied on by the Secretary of State.”

Silber J ordered that the control order should continue in force.

32.  The Secretary of State appealed to the Court of Appeal against the decisions in relation to AF and AN. AE appealed against the decision in his case. These appeals were joined with a further appeal by the Secretary of State against a decision of Sullivan J in favour of a controlee known as AM [2008] EWCA Civ 1148; [2009] 2 WLR 423. In that case Sullivan J delivered a closed judgment only.

33.  Sir Anthony Clarke MR and Waller LJ gave a single judgment. Sedley LJ dissented. The majority subjected the decision of this House in MB to a detailed and meticulous analysis. They summarised their conclusions in para 64 as follows:

“i)  The question is whether the hearing under section 3(10) infringes the controlee’s rights under article 6. In this context the question is whether, taken as a whole, the hearing is fundamentally unfair in the sense that there is significant injustice to the controlee or, put another way, that he is not accorded a substantial measure of procedural justice or the very essence of his right to a fair hearing is impaired. More broadly, the question is whether the effect of the process is that the controlee is exposed to significant injustice. In what follows ‘fair’ and ‘unfair’ are used in this sense.

ii)  All proper steps should be made to provide the controlee with as much information as possible, both in terms of allegation and evidence, if necessary by appropriate gisting.

iii)  Where the full allegations and evidence are not provided for reasons of national security at the outset, the controlee must be provided with a special advocate or advocates. In such a case the following principles apply.

iv)  There is no principle that a hearing will be unfair in the absence of open disclosure to the controlee of an irreducible minimum of allegation or evidence. Alternatively, if there is, the irreducible minimum can, depending on the circumstances, be met by disclosure of as little information as was provided in AF, which is very little indeed.

v)  Whether a hearing will be unfair depends upon all the circumstances, including for example the nature of the case, what steps have been taken to explain the detail of the allegations to the controlled person so that he can anticipate what the material in support might be, what steps have 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 is able to challenge it on behalf of the controlled person and what difference its disclosure would or might make.

vi)  In considering whether open disclosure to the controlee would have made a difference to the answer to the question whether there are reasonable grounds for suspicion that the controlee is or has been involved in terrorist related activity, the court must have fully in mind the problems for the controlee and the special advocates and take account of all the circumstances of the case, including the question what if any information was openly disclosed and how effective the special advocates were able to be. The correct approach to and the weight to be given to any particular factor will depend upon the particular circumstances.

vii)  There are no rigid principles. What is fair is essentially a matter for the judge, with whose decision this court should very rarely interfere.”

34.  There are two points I would make in respect of this summary. The first is that the majority concluded that there was no absolute requirement to disclose the gist or essence of the Secretary of State’s case to the controlee. The second is that the summary shows a degree of overlap between the question of whether the procedure has been fair and the question of whether the outcome of the hearing has been fair. This is particularly apparent in paragraph vi) where the test of fairness depends upon whether the procedure adopted can have affected the result. The distinction between procedural fairness and procedure that produces a fair result is one to which I shall revert.

35.  The majority endorsed the reasoning of Silber J in AE and dismissed AE’s appeal. They held that Mitting J had misdirected himself in AN in concluding that there was an irreducible minimum of material that had to be disclosed to the controlee and remitted AN’s case for further consideration, directing that this should await the present decision of this House. The majority reached a similar decision in relation to Stanley Burnton J’s decision that there was no “makes no difference” principle and remitted AF’s case for further consideration. It found no error in Sullivan J’s closed judgment in AM and dismissed the Secretary of State’s appeal in that case. I have based this summary on the open judgment delivered by the majority. A closed judgment was also delivered.

36.  In his dissent Sedley LJ reached a contrary decision to that of the majority on the critical issue of whether it was fundamental to the fairness of the trial that the controlee should have the case against him disclosed to him and thereby given the opportunity to answer it. He held that this House had not, in fact, determined this in MB. His conclusions appear from the following passage of his judgment:

“112.  … The question for this court is whether, in a case such as AF’s, where the judge took the view that he could be sure that the evidence, albeit wholly undisclosed, was unanswerable, the law regards the requirements of a fair hearing as satisfied. In my judgment, for reasons both principled and pragmatic, Stanley Burnton and Mitting JJ were right to hold that the law did not do so.

113.  Far from being difficult, as Lord Brown tentatively suggested it was, it is in my respectful view seductively easy to conclude that there can be no answer to a case of which you have only heard one side. There can be few practising lawyers who have not had the experience of resuming their seat in a state of hubristic satisfaction, having called a respectable witness to give apparently cast-iron evidence, only to see it reduced to wreckage by ten minutes of well-informed cross-examination or convincingly explained away by the other side’s testimony. Some have appeared in cases in which everybody was sure of the defendant’s guilt, only for fresh evidence to emerge which makes it clear that they were wrong. As Mark Twain said, the difference between reality and fiction is that fiction has to be credible. In a system which recruits its judges from practitioners, judges need to carry this kind of sobering experience to the bench. It reminds them that you cannot be sure of anything until all the evidence has been heard, and that even then you may be wrong. It may be, for these reasons, that the answer to Baroness Hale’s question - what difference might disclosure have made? - is that you can never know.”

37.  In a postscript to their judgment the majority explained why the court proposed to take the unusual step of giving permission to AE, AF and AN to appeal to this House. This was that the approach to be adopted to the use of closed material in section 3(10) hearings was a matter of general public importance and there was scope for argument as to whether the majority had correctly interpreted the views of the majority of the House in MB.

38.  While, for reasons that will become apparent, this question has become of only academic interest, I would wish to record my opinion that the majority of the Court of Appeal, and Silber J, had correctly analysed the effect of the majority opinions in MB.

39.  Lengthy printed cases were submitted that indicated that there was to be a hard fought battle on the appeal to this House. The submissions made in the case on behalf of AF can be summarised as follows:

(i)  Contrary to the decision of the Court of Appeal, the majority of the House decided in MB that article 6 of the Convention and the common law principle of fairness conferred on a controlee a core, irreducible entitlement to be told sufficient of the case against him to enable him to challenge that case unless, which was not the case so far as AF was concerned, the special advocates were able to defeat those allegations without such disclosure.

(ii)  The House did not approve the “makes no difference” principle.

(iii)  Alternatively, if the House held that there was no core, irreducible minimum that had to be disclosed, it should depart from that result and affirm the right of a controlee to know and respond to the case against him.

40.  The joint case for AN and AE adopted the case for AF. It asserted that the common law right to a fair hearing, and the right to be aware of the case a person has to meet, was “a constitutional protection that is integral to the judicial function itself".

41.  The case for the Secretary of State invited the House to depart from the approach of the majority in MB and to adopt instead the minority opinion of Lord Hoffmann. Alternatively it was submitted that the majority in MB had concluded correctly that article 6(1) did not guarantee a core, irreducible, minimum of disclosure. The relevant principle was whether, having regard to the proceedings as a whole, there had been significant injustice to the controlee or whether the controlee had been afforded “a substantial and sufficient measure of procedural justice". In answering that question it was permissible for the court to consider what difference further open disclosure would have made.

42.  JUSTICE was granted permission to intervene and submitted a printed case that supported the appellants’ cases. JUSTICE submitted that there was a “solid bedrock of a core legal principle” that the substance of the case upon which a control order was based should be disclosed to the controlee.

43.  A decision was taken that the appeal should be heard by a committee of nine members. Application was made, both by the Secretary of State and by the appellants, with particular support from their special advocates, that the House should give directions for the consideration of the closed judgments below, and possibly other closed material, in closed session. Directions were given that the question of whether to go into closed session would be taken after the parties had presented their cases in the open hearing.

44.  On 19 February, a little over a week before the commencement of the appeal in the House, the Grand Chamber of the Strasbourg Court handed down its judgment in A and others v United Kingdom (Application No 3455/05). This addressed the extent to which the admission of closed material was compatible with the fair trial requirements of article 5(4). The Secretary of State recognised that the judgment cut the ground from under her feet in so far as she had hoped to persuade the House to adopt the approach of Lord Hoffmann in MB. An amended case was filed on her behalf. This contained a lengthy analysis of the decision in A v United Kingdom. It submitted that the decision was consistent with the decision of the majority of the House in MB, as correctly summarised by the Court of Appeal in the passage that I have set out above at paragraph 33. The Court of Appeal, applying the principles in that passage, had reached the appropriate conclusion in the case of each appellant.

45.  The appellants also submitted amended cases that addressed the decision in A v United Kingdom. AF’s amended case submitted that the Grand Chamber had made it clear that, regardless of the demands of national security, a person will not have a fair hearing for purposes of article 5(4) and article 6 unless they are told sufficient information about the case against them to enable them to give effective instructions to the special advocate who represents their interests. Accordingly, the decision of the majority of the Court of Appeal in relation to AF could not stand. The decision of Stanley Burnton J should be restored.

46.  The amended case on behalf of AN and AE was to like effect. The Grand Chamber had established that a minimum requirement of procedural fairness was that a person had to be given the opportunity effectively to challenge the allegations against him. Where there was a closed hearing the special advocate could not do this on behalf of his client in any useful way unless provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate. Mitting J had held that AN could not meet a substantial part of the case against him and did not know the gist of significant grounds of suspicion raised against him. Silber J had wrongly proceeded on the basis that the special advocate procedure could compensate for an absence of any evidence or of a relevant particularised allegation having been provided to AE. The Grand Chamber’s decision demonstrated that in neither case were the requirements of article 6 satisfied.

47.  In the light of the decision in A v United Kingdom counsel for the appellants no longer submitted that it was necessary or desirable for the House to consider closed material, albeit that the special advocates sought, as they candidly admitted, to have their cake and eat it by inviting the House to consider the closed material if otherwise minded to reject their submissions. In these circumstances the House decided that it would not have a closed hearing or look at closed material.

48.  There were referred to the Grand Chamber 11 applications. The applicants had been detained pursuant to the provisions of the ATCSA. They complained of violation of a number of their Convention rights, including their right to liberty under article 5(1), relying upon the findings in their favour by this House. The United Kingdom was permitted by the Court to challenge those findings, but did so without success. The relevant complaints were those brought in relation to article 5(4). The Court summarised the respective cases of the parties as follows:

“The applicants complained about the procedure before SIAC for appeals under section 25 of the 2001 Act (see paragraph 91 above) and in particular the lack of disclosure of material evidence except to special advocates with whom the detained person was not permitted to consult. In their submission, Article 5 § 4 imported the fair trial guarantees of Article 6 § 1 commensurate with the gravity of the issue at stake. While in certain circumstances it might be permissible for a court to sanction non-disclosure of relevant evidence to an individual on grounds of national security, it could never be permissible for a court assessing the lawfulness of detention to rely on such material where it bore decisively on the case the detained person had to meet and where it had not been disclosed, even in gist or summary form, sufficiently to enable the individual to know the case against him and to respond. In all the applicants’ appeals, except that of the tenth applicant, SIAC relied on closed material and recognised that the applicants were thereby put at a disadvantage.

On the applicants’ second point, the Government submitted that there were valid public interest grounds for withholding the closed material. The right to disclosure of evidence, under Article 6 and also under Article 5 § 4, was not absolute. The Court’s case-law from Chahal (cited above) onwards had indicated some support for a special advocate procedure in particularly sensitive fields. Moreover, in each applicant’s case, the open material gave sufficient notice of the allegations against him to enable him to mount an effective defence.”

49.  In paragraph 4.54 of its Memorial to the Court the Government submitted that it would be highly desirable for the Grand Chamber to deal with the question of closed evidence in its proper place in the context of article 5(4), so that the law applicable in relation to the applicants should be properly and fully analysed by the Court. The Grand Chamber accepted that invitation.

50.  The Government advanced in the Memorial a detailed defence of the use of closed material. At paragraph 4.77 it identified the critical issue in relation to this:

“The Government submit that the result contended for by the applicants is wrong in principle. Their submission wrongly elevates the right of an individual to disclosure of relevant evidence under Article 5(4) (or Article 6) to an absolute right which necessarily overrides the rights of others, including the right to life under Article 2, and overrides the interests of the State in protecting secret sources of information so as to preserve the effectiveness of its intelligence, police and counter-terrorism services. Such an absolute right to disclosure would, if it existed, create a serious lacuna in the protection the State may offer its citizens and disregards the principle, inherent in the Convention as a whole, including Article 5(4) (and Article 6), that the general interests of the community must be balanced against the rights of an individual (see eg Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, at para 69; Soering v United Kingdom (1989) 11 EHRR 439, at para 89).”

This is the critical issue that arises on the present appeals. For the reasons that follow I consider that the Grand Chamber has provided the definitive resolution of it.