“165. The real question in my view is suggested by Lord Rodger in paragraph 111 of Roberts: does the procedure meet the minimum standards of fairness for a hearing of this particular kind in circumstances where the use of the non-disclosed material (by the decision maker or court) was necessary and proportionate? Whether non-disclosure of material is necessary and proportionate will usually involve a balance being struck either in legislation or in the hearing process, between the rights of an individual and the reduction of risk to a serious public interest in order to protect the rights of others.”
“166. There is nothing in Roberts which requires me to conclude that the process laid down by the Act and the Rules is incompatible with Article 6 as a result of the negligible disclosure of the case against him which AF has received. Nor do the comments relied on form a clear statement of principle supporting what Mr Otty submitted. On the contrary, there is nothing in Chahal to suggest that there is a point at which the suggested special advocate procedure for legitimately withheld material, becomes unfair. There is no clear basis for a holding of incompatibility. 167. I have taken time with this argument notwithstanding MB, because it is directed at the Court's own functions and duties, and indeed at what could have been a decision of mine to uphold the Order on a basis which was said to be wholly unfair. 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.”
“173. … As in Chahal, the Canadian Supreme Court held that the restrictions were not justifiable because they went further than was necessary. As in Chahal, some form of special advocate system was commended. In neither case was there any suggestion of an irreducible core of allegation or evidence that had to be made available with such a special advocate system in place. And both those cases involved detention rather than restriction on movement.”
“The real problem arises where material is relied on in coming to a decision which the person at risk of an adverse ruling has had no adequate opportunity to challenge or rebut, as in Feldbrugge v The Netherlands(1986) 8 EHRR 425 , paras 42, 44; Van Mechelen v The Netherlands, [(1977) 25 EHRR 647 ], paras 62-65; Luca v Italy(2001) 36 EHRR 807 , paras 43-45. In each of these cases the trial was found to be unfair.”
“The court has not been insensitive to the special problems posed to national security by terrorism: see, for instance, Murray v United Kingdom(1994) 19 EHRR 193 , paras 47, 58. It has (as it was said in Brown v Stott, [[2003] 1 AC 681 , 719] above, p 704) eschewed the formulation of hard-edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or the circumstances, and has recognised the need for a fair balance between the general interest of the community and the rights of the individual. But even in cases where article 6(1) has not been in issue, the court has required that the subject of a potentially adverse decision enjoy a substantial measure or degree of procedural justice: see Chahal v United Kingdom …, para 131; Al-Nashif v Bulgaria(2002) 36 EHRR 655 , para 97. In Tinnelly & Sons Ltd and McElduff & Others v United Kingdom(1998) 27 EHRR 249 , para 72, the court held that any limitation of the individual's implied right of access to the court must not impair the very essence of the right.”
“I would respectfully agree with the opinion of Lord Woolf in Roberts, para 83(vii), that the task of the court in any given case is to decide, looking at the process as a whole, whether a procedure has been used which involved significant injustice to the controlled person (see also R (Hammond) v Secretary of State for the Home Department[2005] UKHL 69 ,[2006] 1 AC 603 , para 10).”
“1. Notwithstanding the national security context, every subject of a non-derogating control order retains a core, irreducible minimum entitlement to be able effectively to challenge/rebut the case against him (see final sentence, para 34, speech of Lord Bingham in MB and, accordingly the A6 right to a fair trial demands that every controlee receives sufficient disclosure to enable him, with or without a special advocate, to make such a challenge. 2. The appointment of a special advocate is not of itself a guarantee of compliance with the A6 right to a fair trial. 3. Decisions on what must be disclosed to achieve compliance with A6 are always fact sensitive and, thus, are necessarily incapable of categorisation into “usual” and “exceptional” cases.”
“What will be determinative in a particular case is whether looking at the process as a whole a decision has been taken by the board using a procedure that involves significant injustice to the prisoner.”
“In the present case one has to balance two interests, that of the controlee and the public interest, without the added factor of protecting the informant. Both interests are clear and strong, but in my opinion it is possible to accommodate both with an appropriate balance.” “In the present case one has to balance two interests, that of the controlee and the public interest, without the added factor of protecting the informant. Both interests are clear and strong, but in my opinion it is possible to accommodate both with an appropriate balance.”
“I cannot accept that a suspect's entitlement to an essentially fair hearing is merely a qualified right capable of being outweighed by the public interest in protecting the state against terrorism (vital though, of course, I recognise that public interest to be). On the contrary, it seems to me not merely an absolute right but one of altogether too great importance to be sacrificed on the altar of terrorism control. By the same token that evidence derived from the use of torture must always be rejected so as to safeguard the integrity of the judicial process and avoid bringing British justice into disrepute (A v Secretary of State for the Home Department (No 2)[2006] 2 AC 2 AC 221), so too in my judgment must closed material be rejected if reliance on it would necessarily result in a fundamentally unfair hearing.”
“I do consider, however, that there is a fairly heavy burden on the controlee to establish that there has been a breach of article 6, for the legitimate public interest in withholding material on valid security grounds should be given due weight. The courts should not be too ready to hold that a disadvantage suffered by the controlee through the withholding of material constitutes a breach of article 6.”
“The PTA authorises the imposition of obligations where there are reasonable ground for suspicion. The issue that has to be scrutinised by the court is whether there are reasonable grounds for suspicion. That exercise may involve considering a matrix of alleged facts, some of which are clear beyond reasonable doubt, some of which can be established on the balance of probability and some of which are based on no more than circumstances giving rise to suspicion. The court has to consider whether the matrix amounts to reasonable grounds for suspicion and this exercise differs from that of deciding whether a fact has been established according to a specified standard of proof. It is the procedure for determining whether reasonable ground exist which has to be fair if article 6 is to be satisfied.”
“… briefly, the standard of proof upon the SSHD is not high, and he must have established his case to that level before there is anything which calls for an answer, and he cannot reach that stage by reliance upon AF's silence or refusal to answer questions; …”
“having a reasonable suspicion presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence.” “having a reasonable suspicion presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence.”
“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.” ii) Lord Bingham had said a little earlier in [34] that Lord Woolf had accepted in Roberts at [68] that there was a “core, irreducible minimum entitlement” for a life prisoner to be able effectively to test and challenge before the Parole Board any evidence which decisively bore on the legality of his detention. At [43] Lord Bingham said that he understood the House to have accepted in Roberts that the concept of fairness imports a core, irreducible minimum of procedural protection. He also said at [44] that “a majority of my noble and learned friends are of my opinion on the principles relevant to this issue”, by which he meant the fairness issue. iii) It is clear from the speeches of Lord Woolf in Roberts and Lord Bingham in MB and AF that the core, irreducible minimum referred to was a reference to disclosure to the prisoner or controlee in person. iv) At [90] Lord Brown said that he agreed with much of Lord Bingham’s opinion. In particular he said that he agreed with Lord Bingham’s “convincing analysis of the authorities at paras 25 to 34” and with his conclusion at [35] that the court’s task in any given case is to decide whether the process as a whole has occasioned significant injustice to the suspect. v) Baroness Hale referred at [58] to the basic requirement being to know the case against one and to have an opportunity of meeting it, although she was there stating the general rule in civil cases. As stated above, she then set out some limitations on that principle, both at common law and under the Convention. At [65] and [66] she discussed the likely approach of the ECtHR and the way she anticipated the process working in a case where not all the information is disclosed to the controlee. These are important paragraphs, to which we return below, but they do not in our opinion provide specific support for the proposition that there is an irreducible minimum which must be disclosed to the controlee. There may however be some support for the controlees’ submissions in [68] of Baroness Hale’s speech. vi) In [68] she said this, after referring in [67] to the approach of Ouseley J (see below): “But there may still be a few cases in which, under the scheme set out in the 2005 Act and rules, this is not possible. The material which is crucial to demonstrating the reasonable basis of the Secretary of State's suspicions or fears cannot be disclosed in any way which will enable the controlled person to give such answer as he may have. What is to happen then?”
“The Council of Europe Commissioner for Human Rights, in paragraph 21 of his report referred to above (para 16), and the Joint Committee on Human Rights, in paragraph 76 of its report referred to above (para 16), had difficulty in accepting that a hearing could be fair if an adverse decision could be based on material that the controlled person has no effective opportunity to challenge or rebut. 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.”
“This would seem to me an even stronger case than MB's. If, as I understand the House to have accepted in Roberts, above, the concept of fairness imports a core, irreducible minimum of procedural protection, I have difficulty, on the judge's findings, in concluding that such protection has been afforded to AF. The right to a fair hearing is fundamental. In the absence of a derogation (where that is permissible) it must be protected. In this case, as in MB's, it seems to me that it was not.”
“The best judge of whether the proceedings have afforded a sufficient and substantial measure of procedural protection is likely to be the judge who conducted the hearing. It is highly significant that, in AF Ouseley J concluded, at …, 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.”
“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.”
“In AF's case Ouseley J accepted at paragraph 146 of his judgment that “no, or at least no clear or significant, allegations of involvement in terrorist-based activity are disclosed by the open material, nor have any such allegations been gisted.”
“which I understand to be shared by my noble and learned friends, Lord Carswell and Lord Brown of Eaton-under-Heywood.”
“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. In short, the suspect in such a case would not have been accorded even "a substantial measure of procedural justice" … notwithstanding the use of the special advocate procedure; "the very essence of [his] right [to a fair hearing] [will have been] impaired” ….”
“There is a very wide spectrum of cases in which closed material is relied on by the Secretary of State. At one extreme there may be cases in which the sole evidence adverse to the controlee is closed material, he cannot be told what the evidence is or even given its gist and the special advocate is not in a position to take sufficient instructions to mount an effective challenge to the adverse allegations. At the other end there may be cases where the probative effect of the closed material is very slight or merely corroborative of strong open material and there is no obstacle to presenting a defence. There is an infinite variety of possible cases in between. The balance between the open material and the closed material and the probative nature of each will vary from case to case. The special advocate may be able to discern with sufficient clarity how to deal with the closed material without obtaining direct instructions from the controlee. These are matters for the judge to weigh up and assess in the process of determining whether the controlee has had a fair trial. The assessment is, as Lord Woolf said in Roberts at paragraph 77, fact-specific. The judge who has seen both the open and the closed material and had the benefit of the contribution of the special advocate is in much the best position to make it. I do consider, however, that there is a fairly heavy burden on the controlee to establish that there has been a breach of article 6, for the legitimate public interest in withholding material on valid security grounds should be given due weight. The courts should not be too ready to hold that a disadvantage suffered by the controlee through the withholding of material constitutes a breach of article 6.”
“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.”
“rights of defence, in particular the right to be heard, and the right to effective judicial review of those rights, were patently not respected.”
“342. In addition, with regard to a Community measure intended to give effect to a resolution adopted by the Security Council in connection with the fight against terrorism, overriding considerations to do with safety or the conduct of the international relations of the Community and of its Member States may militate against the communication of certain matters to the persons concerned and, therefore, against their being heard on those matters. 343. However, that does not mean, with regard to the principle of effective judicial protection, that restrictive measures such as those imposed by the contested regulation escape all review by the Community judicature once it has been claimed that the act laying them down concerns national security and terrorism. 344. In such a case, it is none the less the task of the Community judicature to apply, in the course of the judicial review it carries out, techniques which accommodate, on the one hand, legitimate security concerns about the nature and sources of information taken into account in the adoption of the act concerned and, on the other, the need to accord the individual a sufficient measure of procedural justice (see, to that effect, the judgment of the European Court of Human Rights in Chahal v. United Kingdom of15 November 1996 , Reports of Judgments and Decisions 1996-V, § 131).”
“I do not think that we can be confident that Strasbourg would hold that every control order hearing in which the special advocate procedure had been used, as contemplated by the 2005 Act and Part 76 of the Civil Procedure Rules, would be sufficient to comply with article 6. However, with strenuous efforts from all, difficult and time consuming though it will be, it should usually be possible to accord the controlled person "a substantial measure of procedural justice". Everyone involved will have to do their best to ensure that the "principles of judicial inquiry" are complied with to the fullest extent possible. The Secretary of State must give as full as possible an explanation of why she considers that the grounds in section 2(1) are made out. The fuller the explanation given, the fuller the instructions that the special advocates will be able to take from the client before they see the closed material. Both judge and special advocates will have to probe the claim that the closed material should remain closed with great care and considerable scepticism. There is ample evidence from elsewhere of a tendency to over-claim the need for secrecy in terrorism cases: see Serrin Turner and Stephen J Schulhofer, The Secrecy Problem in Terrorism Trials, 2005, Brennan Centre for Justice at NYU School of Law. Both judge and special advocates will have stringently to test the material which remains closed. All must be alive to the possibility that material could be redacted or gisted in such a way as to enable the special advocates to seek the client's instructions upon it. All must be alive to the possibility that the special advocates be given leave to ask specific and carefully tailored questions of the client. Although not expressly provided for inCPR r 76.24 , the special advocate should be able to call or have called witnesses to rebut the closed material. The nature of the case may be such that the client does not need to know all the details of the evidence in order to make an effective challenge.”
“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.”
“AF was a case in which the open material did not disclose to him grounds for reasonable suspicion. The only allegation made openly against him was that he had links to islamist extremists in Manchester, some of whom were affiliated to the LIFG: paragraph 42. It seems, therefore, that Lady Hale would, in an appropriate case, accept that reasonable grounds for suspicion formed on the basis of "better and more reliable sources of intelligence" could be formed and upheld without telling the controlled person more than the barest outline of the nature of the activities of which he was suspected. If that is the right test, the Secretary of State's third open statement satisfies it.”
“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.”
“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.”
“Just so that there is no mistake about it, my view is that, taking account of the conditions and circumstances in all these various control order cases, provided the “core element of confinement” does not exceed sixteen hours a day, it is “insufficiently stringent” as a matter of law to effect a deprivation of liberty. Beyond sixteen hours, however, liberty is lost.”
“he [the judge] 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”