|Judgments - Secretary of State for the Home Department (Respondent) v AF (Appellant) (FC) and another (Appellant) and one other action
51. The Court cited at length from the decision of this House in MB and also quoted the passage in the decision of the majority of the Court of Appeal in AF that I have set out at paragraph 33. The conclusions of the Grand Chamber appear in the following section of its unanimous judgment:
215. The Court recalls that although the judges sitting as SIAC were able to consider both the open and closed material, neither the applicants nor their legal advisers could see the closed material. Instead, the closed material was disclosed to one or more special advocates, appointed by the Solicitor General to act on behalf of each applicant. During the closed sessions before SIAC, the special advocate could make submissions on behalf of the applicant, both as regards procedural matters, such as the need for further disclosure, and as to the substance of the case. However, from the point at which the special advocate first had sight of the closed material, he was not permitted to have any further contact with the applicant and his representatives, save with the permission of SIAC. In respect of each appeal against certification, SIAC issued both an open and a closed judgment.
216. The Court takes as its starting point that, as the national courts found and it has accepted, during the period of the applicants detention the activities and aims of the al'Qaeda network had given rise to a public emergency threatening the life of the nation'. It must therefore be borne in mind that at the relevant time there was considered to be an urgent need to protect the population of the United Kingdom from terrorist attack and, although the United Kingdom did not derogate from Article 5 § 4, a strong public interest in obtaining information about al'Qaeda and its associates and in maintaining the secrecy of the sources of such information (see also, in this connection, Fox, Campbell and Hartley, cited above, (1990) 13 EHRR 157, para 39).
217. Balanced against these important public interests, however, was the applicants right under Article 5 § 4 to procedural fairness. Although the Court has found that, with the exception of the second and fourth applicants, the applicants detention did not fall within any of the categories listed in subparagraphs (a) to (f) of Article 5 § 1, it considers that the case-law relating to judicial control over detention on remand is relevant, since in such cases also the reasonableness of the suspicion against the detained person is a sine qua non (see paragraph 204 above). Moreover, in the circumstances of the present case, and in view of the dramatic impact of the lengthy - and what appeared at that time to be indefinite - deprivation of liberty on the applicants fundamental rights, Article 5 § 4 must import substantially the same fair trial guarantees as Article 6 § 1 in its criminal aspect (Garcia Alva v Germany (2001) 37 EHRR 335, para 39, and see also Chahal (1996) 23 EHRR 413, paras 130 -131).
218. Against this background, it was essential that as much information about the allegations and evidence against each applicant was disclosed as was possible without compromising national security or the safety of others. Where full disclosure was not possible, Article 5 § 4 required that the difficulties this caused were counterbalanced in such a way that each applicant still had the possibility effectively to challenge the allegations against him.
219. The Court considers that SIAC, which was a fully independent court (see paragraph 91 above) and which could examine all the relevant evidence, both closed and open, was best placed to ensure that no material was unnecessarily withheld from the detainee. In this connection, the special advocate could provide an important, additional safeguard through questioning the States witnesses on the need for secrecy and through making submissions to the judge regarding the case for additional disclosure. On the material before it, the Court has no basis to find that excessive and unjustified secrecy was employed in respect of any of the applicants appeals or that there were not compelling reasons for the lack of disclosure in each case.
220. The Court further considers that the special advocate could perform an important role in counterbalancing the lack of full disclosure and the lack of a full, open, adversarial hearing by testing the evidence and putting arguments on behalf of the detainee during the closed hearings. However, the special advocate could not perform this function in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate. While this question must be decided on a case-by-case basis, the Court observes generally that, where the evidence was to a large extent disclosed and the open material played the predominant role in the determination, it could not be said that the applicant was denied an opportunity effectively to challenge the reasonableness of the Secretary of States belief and suspicions about him. In other cases, even where all or most of the underlying evidence remained undisclosed, if the allegations contained in the open material were sufficiently specific, it should have been possible for the applicant to provide his representatives and the special advocate with information with which to refute them, if such information existed, without his having to know the detail or sources of the evidence which formed the basis of the allegations. An example would be the allegation made against several of the applicants that they had attended a terrorist training camp at a stated location between stated dates; given the precise nature of the allegation, it would have been possible for the applicant to provide the special advocate with exonerating evidence, for example of an alibi or of an alternative explanation for his presence there, sufficient to permit the advocate effectively to challenge the allegation. Where, however, the open material consisted purely of general assertions and SIACs decision to uphold the certification and maintain the detention was based solely or to a decisive degree on closed material, the procedural requirements of Article 5 § 4 would not be satisfied.
52. Mr Eadie QC for the Secretary of State sought valiantly and eloquently to persuade the Committee that this section of the Courts judgment was consistent with the Houses decision in MB, as interpreted by the Court of Appeal in AF. He submitted that the principle to be derived from the judgment was that the controlee must have a reasonable opportunity to make an effective challenge of the case made against him. It was wrong, however, to treat the Court, in the latter part of paragraph 220 as laying down an inflexible principle that there can never be a fair trial if the basis of the Secretary of States suspicion is to be found solely or to a decisive degree in the closed material. While in some cases this would be true, in others it would not. Each case would depend upon its particular facts.
53. Mr Eadie submitted that the Grand Chamber had not had placed before it a full picture of a section 3(10) hearing. It was not in a position to appreciate the extent to which the court could and did make allowances for the fact that the detainee was unaware of relevant material. Nor did it appreciate the extent to which the special advocate could and did compensate for that fact. The statement that the special advocate could not perform his function in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate was simply wrong.
54. The committee had the benefit of submissions from the special advocates who had represented the appellants in the closed hearings. Their role was somewhat delicate as each had an obligation to represent to best effect the interests of his client and yet the response to this obligation had to be tempered by the duty to present fairly to the House the extent to which a special advocate could or could not compensate for the non-disclosure of closed material to the controlee. Mr Keith, whose submissions were adopted by the other special advocates, sought to meet this challenge by supporting the observations of Ouseley J in another control order case, Secretary of State for the Home Department v Abu Rideh  EWHC 1993 (Admin). Of particular relevance are the following:
21 In my view, cross-examination by special advocates can usually deal with evidential reliability, possible alternative and innocent inferences, internal consistency or contradictions, the significance of pieces of evidence and the strength of the case overall. What they cannot do without instructions or evidence is to provide evidence or explanation which contradicts or explains the closed essential features of the case against him or offer alternative inferences which they are not aware of or lack any support for.
40 The real value lies in the potential for a controlled person to provide evidence which shows a different picture or an innocent interpretation or explanation which counters the basis for the adverse inferences and does so beyond that which the special advocates may suggest. This would either be because there would now be an evidential basis for those suggestions or because the special advocate may not be able to anticipate or put together what the controlled persons position is. He may also be able to provide the special advocate with information or statements to be deployed as the special advocate sees fit, which the court and SSHD may never know of.
55. Mr Keiths submissions emphasised the practical importance in the interests of fair process of disclosing to the controlee the essential features of the case against him and challenged Mr Eadies submission that the Grand Chamber had not ruled that such disclosure was essential.
56. Lord Pannick QC for AF pointed out that the Grand Chamber had reached its decision without reference to the closed material. It was thus clear that the test of fair process did not depend upon the strength of the closed case against the controlee. He submitted that whether or not the controlee would be able to provide input that would make any difference to the result was not to the point. What was in issue was not the fairness of the result, but procedural fairness. Procedural fairness required that the controlee should be given sufficient information about the case against him to be able to give effective instructions to the special advocate should he have an answer to that case. The submissions of counsel for the other appellants were to like effect. Counsel for each appellant submitted that the disclosure required by the decision of the Grand Chamber had not been provided in the case of his client.
The effect of the Grand Chambers decision
57. The requirements of a fair trial depend, to some extent, on what is at stake in the trial. The Grand Chamber was dealing with applicants complaining of detention contrary to article 5(1). The relevant standard of fairness required of their trials was that appropriate to article 5(4) proceedings. The Grand Chamber considered, having regard to the length of the detention involved, that article 5(4) imported the same fair trial rights as article 6(1) in its criminal aspect - see paragraph 217. Mr Eadie submitted that a less stringent standard of fairness was applicable in respect of control orders, where the relevant proceedings were subject to article 6 in its civil aspect. As a general submission there may be some force in this, at least where the restrictions imposed by a control order fall far short of detention. But I do not consider that the Strasbourg Court would draw any such distinction when dealing with the minimum of disclosure necessary for a fair trial. Were this not the case, it is hard to see why the Grand Chamber quoted so extensively from control order cases. I turn to the effect of the Grand Chambers decision.
58. Had there been any doubt as to the effect of the passage of the judgment of the Grand Chamber that I have set out in paragraph 51 above it would, as Lord Pannick pointed out, have been dispelled by the approach of the Grand Chamber to some of the individual applications. Thus in the case of the third applicant SIAC had, in reaching its conclusion that the applicant was a terrorist, relied only on closed material which cannot in our judgment have an innocent explanation", but the Grand Chamber held that his hearing had been unfair for want of adequate disclosure. In the case of the fifth applicant SIAC had stated that they had no doubt that he had been engaged in certain terrorism- related activities but the Grand Chamber held that his hearing had been unfair because the case against him had largely been contained in the closed material and the open case was insubstantial".
59. Contrary to Mr Eadies submission, I am satisfied that the essence of the Grand Chambers decision lies in paragraph 220 and, in particular, in the last sentence of that paragraph. This establishes that the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations. Where, however, the open material consists purely of general assertions and the case against the controlee is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be.
Procedural fairness and the fair result
60. Counsel for the appellants drew a distinction between a procedure that was fair and a procedure that was likely to produce the right outcome. This case, they submitted, was about the requirements of fair process, not about whether the outcomes of the individual cases were just. I do not believe that it is possible to draw a clear distinction between a fair procedure and a procedure that produces a fair result. The object of the procedure is to ensure, in so far as this is possible, that the outcome of the process is a result that accords with the law. Why then should disclosure to the controlee of the case against him be essential if, on the particular facts, this cannot affect the result?
61. One answer to this question is that one cannot be sure that disclosure will not affect the result. This was the reason advanced by Sedley LJ in the passage that I have cited from his judgment. Its classic exposition is this extract from the judgment of Megarry J in John v Rees  Ch 345, at p 402:
It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. When something is obvious, they may say, why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start. Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.
62. I am not convinced that all of these observations are valid in the present context. What is in issue in control order cases is whether there are reasonable grounds for suspecting involvement on the part of the controlee in terrorism-related activity. This is a low threshold to cross and there are, so it seems to me, bound to be cases where the closed evidence is so cogent that the judge can rightly form the conclusion that there is no possibility that the controlee would be able, if this evidence were disclosed to him, to dispel the reasonable suspicion. Nothing in life is certain, but I believe that with the assistance of the dedicated special advocates that are available and the input of judges with the ability and experience of those who hear these cases, the approach approved by this House in MB, including the makes no difference principle, could have been applied without significant risk of producing unjust results.
63. There are, however, strong policy considerations that support a rule that a trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him. The first is that there will be many cases where it is impossible for the court to be confident that disclosure will make no difference. Reasonable suspicion may be established on grounds that establish an overwhelming case of involvement in terrorism-related activity but, because the threshold is so low, reasonable suspicion may also be founded on misinterpretation of facts in respect of which the controlee is in a position to put forward an innocent explanation. A system that relies upon the judge to distinguish between the two is not satisfactory, however able and experienced the judge. Next there is the point made by Megarry J in respect of the feelings of resentment that will be aroused if a party to legal proceedings is placed in a position where it is impossible for him to influence the result. The point goes further. Resentment will understandably be felt, not merely by the controlee but by his family and friends, if sanctions are imposed on him on grounds that lead to his being suspected of involvement in terrorism without any proper explanation of what those grounds are. Indeed, if the wider public are to have confidence in the justice system, they need to be able to see that justice is done rather than being asked to take it on trust.
64. The best way of producing a fair trial is to ensure that a party to it has the fullest information of both the allegations that are made against him and the evidence relied upon in support of those allegations. Where the evidence is documentary, he should have access to the documents. Where the evidence consists of oral testimony, then he should be entitled to cross-examine the witnesses who give that testimony, whose identities should be disclosed. Both our criminal and our civil procedures set out to achieve these aims. In some circumstances, however, they run into conflict with other aspects of the public interest, and this is particularly the case where national security is involved. How that conflict is to be resolved is a matter for Parliament and for government, subject to the law laid down by Parliament. That law now includes the Convention, as applied by the HRA. That Act requires the courts to act compatibly with Convention rights, in so far as Parliament permits, and to take into account the Strasbourg jurisprudence. That is why the clear terms of the judgment in A v United Kingdom resolve the issue raised in these appeals.
65. Before A v United Kingdom, Strasbourg had made it plain that the exigencies of national security could justify non-disclosure of relevant material to a party to legal proceedings, provided that counterbalancing procedures ensured that the party was accorded a substantial measure of procedural justice - Chahal v United Kingdom (1996) 23 EHRR 413, at para 131. Examples were cited by the Grand Chamber in A v United Kingdom at paras 205-208, covering the withholding of material evidence and the concealing of the identity of witnesses. The Grand Chamber has now made clear that non-disclosure cannot go so far as to deny a party knowledge of the essence of the case against him, at least where he is at risk of consequences as severe as those normally imposed under a control order.
66. In A v United Kingdom the Strasbourg court has nonetheless recognised that, where the interests of national security are concerned in the context of combating terrorism, it may be acceptable not to disclose the source of evidence that founds the grounds of suspecting that a person has been involved in terrorism-related activities. In the light of this it should occasion no surprise that no counsel suggested that the decision of this House in R v Davis  UKHL 36;  AC 1128 in relation to witness anonymity in criminal trials should be applied in the context of control order proceedings.
Can the PTA still be read down?
67. If the PTA is read down in the way determined by this House in MB the departure from the apparently absolute requirements of the relevant statutory provisions will be more marked. It is perhaps open to question whether the House would have been prepared to read down the statute had this been anticipated. No party has suggested, however, that the reading down should be replaced with a declaration of incompatibility and I believe that there is good reason to let the reading down stand. Accordingly, I would propose this course.
68. The result will be that, in the section 3(10) hearing, the judge will have to consider not merely the allegations that have to be disclosed in order to place in the open sufficient to satisfy the requirements laid down by the Grand Chamber, but whether there is any other matter whose disclosure is essential to the fairness of the trial.
69. For the reasons that I have given I would allow the appeal in each case. In none has the disclosure required by the decision of the Grand Chamber been given. The appropriate course is to remit each case to the judge for further consideration in accordance with the decision of this House.
70. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Phillips of Worth Matravers and I agree that the judgment of the European Court of Human Rights (ECtHR) in A v United Kingdom (Application No 3455/05) requires these appeals to be allowed. I do so with very considerable regret, because I think that the decision of the ECtHR was wrong and that it may well destroy the system of control orders which is a significant part of this countrys defences against terrorism. Nevertheless, I think that your Lordships have no choice but to submit. It is true that section 2(1)(a) of the Human Rights Act 1998 requires us only to take into account decisions of the ECtHR. As a matter of our domestic law, we could take the decision in A v United Kingdom into account but nevertheless prefer our own view. But the United Kingdom is bound by the Convention, as a matter of international law, to accept the decisions of the ECtHR on its interpretation. To reject such a decision would almost certainly put this country in breach of the international obligation which it accepted when it acceded to the Convention. I can see no advantage in your Lordships doing so.
71. The difference between the rule laid down by the ECtHR and what I had previously thought to be the law of England is that the Strasbourg court has imposed a rigid rule that the requirements of a fair hearing are never satisfied if the decision is based solely or to a decisive degree on closed material, whereas the view expressed by a majority of your Lordships House in Secretary of State for the Home Department v MB  AC 440 was that even in such a case, substantial justice might still be possible. As I understand the views expressed by judges of the Special Immigration Appeals Commission since MBs case, it is not unusual for the Commission to base its decision to a decisive degree on closed material and nevertheless to be satisfied, from the nature of that material, that the applicant has had a fair hearing.
72. The particular procedures which have to be followed to make a hearing fair cannot in my opinion be stated in rigid rules. Ordinarily it is true that fairness requires that an accused person should be informed of all the allegations against him and the material tendered to the tribunal in support. The purpose of the rule is not merely to improve the chances of the tribunal reaching the right decision (by giving the accused an opportunity to explain or contradict any such allegations or material) but to avoid the subjective sense of injustice which an accused may feel if he knows that the tribunal relied upon material of which he was not told. Seventeenth century lawyers were fond of quoting the example of Genesis 3.11, in which God, though omniscient, said to Adam Hast thou eaten of the tree, whereof I commanded thee that thou shouldest not eat?". In such a case, however, there is no cost in compliance with the general rule. God suffered no disadvantage by revealing to Adam what he knew. The same is true in most cases in which there is a failure to disclose material. But when disclosure is contrary to the public interest, it is necessary to think more carefully and ask whether in all the circumstances it would really be unfair not to tell the applicant or accused. There may well be cases in which, from the point of view of reaching the right decision, it is clear to the Tribunal that it would be highly unlikely to make any difference. If that is the case, the procedure may be fair even though a subjective feeling of injustice is unavoidable.