MB, Re [2006] EWHC 1000 (Admin)

Case No PTA/13/2005

[2006] EWHC 1000 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Wednesday, 12 th April 2006

Strand

London WC2

B E F O R E:

MR JUSTICE SULLIVAN

RE: MB

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR IAN BURNETT QC and MR TIM EICKE (instructed by the Treasury Solicitor) (and MR EICKE alone on this occasion) appeared on behalf of the APPLICANT

MR KEIR STARMER QC and MR ALI BAJWA (instructed by Messrs Arani & Co (and MR BAJWA alone on this occasion) appeared on behalf of the RESPONDENT

MR MICHAEL SUPPERSTONE QC and MISS JUDITH FARBEY (instructed by the Treasury Solicitor) (and MISS FARBEY alone on this occasion) appeared on behalf of the SPECIAL ADVOCATE

J U D G M E N T

Wednesday, 12th April 2006

Introduction

[1]This is the first hearing under section 3(10) of the Prevention of Terrorism Act 2005 ("the Act") in relation to the non-derogating control order made by the applicant under section 2(1) of the Act. The order was made against the respondent on 5th September 2005. Statutory framework

[2]The short title to the Act is as follows:

"An Act to provide for the making against individuals involved in terrorism-related activity of orders imposing obligations on them for purposes connected with preventing or restricting their further involvement in such activity; to make provision about appeals and other proceedings related to such orders; and for connected purposes."

Section 1(1) defines a control order thus:

"In this Act 'control order' means an order against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism."

[3]By virtue of section 15(1) of the Act "terrorism" has the same meaning as in the Terrorism Act 2000, see sections 1(1) to (4) of that Act, namely:

"(1) In this Act 'terrorism' means the use or threat of action where - (a) the action falls within subsection (2), (b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause. (2) Action falls within this subsection if it - (a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person's life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system. (3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied. (4) In this section - (a) 'action' includes action outside the United Kingdom, (b) a reference to any person or to property is a reference to any person, or to property, wherever situated, (c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and (d) 'the government' means the government of the United Kingdom, of a part of the United Kingdom, or of a country other than the United Kingdom."

[4]The Act makes provision for two types of control

[5]Section 2 deals with the making of non-derogating control orders. Subsection (1) provides that:

"The Secretary of State may 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."

[6]"Terrorism-related activity" is defined in subsection 1(9) as any one or more of the following:

"(a) the commission, preparation or instigation of acts of terrorism; (b) conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so; (c) conduct which gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so; (d) conduct which gives support or assistance to individuals who are known or believed to be involved in terrorism-related activity; and for the purposes of this subsection it is immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism generally."

[7]The obligations that may be imposed by a non-derogating control order are:

"... any obligations that the Secretary of State ... considers necessary for purposes connected with preventing or restricting involvement by that individual in the terrorism-related activity" (see subsection 1(3)) and may include, in particular (see subsections 1(4) to (7)): "4(a) a prohibition or restriction on his possession or use of specified articles or substances; (b) a prohibition or restriction on his use of specified services or specified facilities, or on his carrying on specified activities; (c) a restriction in respect of his work or other occupation, or in respect of his business; (d) a restriction on his association or communications with specified persons or with other persons generally; (e) a restriction in respect of his place of residence or on the persons to whom he gives access to his place of residence; (f) a prohibition on his being at specified places or within a specified area at specified times or on specified days; (g) a prohibition or restriction on his movements to, from or within the United Kingdom, a specified part of the United Kingdom or a specified place or area within the United Kingdom; (h) a requirement on him to comply with such other prohibitions or restrictions on his movements as may be imposed, for a period not exceeding 24 hours, by directions given to him in the specified manner, by a specified person and for the purpose of securing compliance with other obligations imposed by or under the order; (i) a requirement on him to surrender his passport, or anything in his possession to which a prohibition or restriction imposed by the order relates, to a specified person for a period not exceeding the period for which the order remains in force; (j) a requirement on him to give access to specified persons to his place of residence or to other premises to which he has power to grant access; (k) a requirement on him to allow specified persons to search that place or any such premises for the purpose of ascertaining whether obligations imposed by or under the order have been, are being or are about to be contravened; (l) a requirement on him to allow specified persons, either for that purpose or for the purpose of securing that the order is complied with, to remove anything found in that place or on any such premises and to subject it to tests or to retain it for a period not exceeding the period for which the order remains in force; (m) a requirement on him to allow himself to be photographed; (n) a requirement on him to co-operate with specified arrangements for enabling his movements, communications or other activities to be monitored by electronic or other means; (o) a requirement on him to comply with a demand made in the specified manner to provide information to a specified person in accordance with the demand; (p) a requirement on him to report to a specified person at specified times and places. (5) Power by or under a control order to prohibit or restrict the controlled person's movements includes, in particular, power to impose a requirement on him to remain at or within a particular place or area (whether for a particular period or at particular times or generally). (6) The reference in subsection (4)(n) to co-operating with specified arrangements for monitoring includes a reference to each of the following -- (a) submitting to procedures required by the arrangements; (b) wearing or otherwise using apparatus approved by or in accordance with the arrangements; (c) maintaining such apparatus in the specified manner; (d) complying with directions given by persons carrying out functions for the purposes of those arrangements. (7) The information that the controlled person may be required to provide under a control order includes, in particular, advance information about his proposed movements or other activities."

[8]An order has effect for 12 months but may be renewed with or without modifications by the Secretary of State for further periods of 12 months if he: "(a) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for an order imposing obligations on the controlled person to continue in force; and (b) considers that the obligations to be imposed by the renewed order are necessary for purposes connected with preventing or restricting involvement by that person in terrorism-related activity." (see subsections 2(4) to (8)).

[9]Subsection 2(9) provides that:

"It shall be immaterial, for the purposes of determining what obligations may be imposed by a control order made by the Secretary of State, whether the involvement in terrorism-related activity to be prevented or restricted by the obligations is connected with matters to which the Secretary of State's grounds for suspicion relate."

[10]The court's supervisory role is dealt with in section 3. For present purposes, the relevant provisions are as follows:

"(1) The Secretary of State must not make a non- derogating control order against an individual except where -- (a) having decided that there are grounds to make such an order against that individual, he has applied to the court for permission to make the order and has been granted that permission; (b) the order contains a statement by the Secretary of State that, in his opinion, the urgency of the case requires the order to be made without such permission [urgent cases]; or (c) [irrelevant] (2) Where the Secretary of State makes an application for permission to make a non-derogating control order against an individual, the application must set out the order for which he seeks permission and -- (a) the function of the court is to consider whether the Secretary of State's decision that there are grounds to make that order is obviously flawed; (b) the court may give that permission unless it determines that the decision is obviously flawed; and (c) if it gives permission, the court must give directions for a hearing in relation to the order as soon as reasonably practicable after it is made. (3) and (4) [urgent cases] (5) The court may consider an application for permission under subsection (1)(a) ... -- (a) in the absence of the individual in question; (b) without his having been notified of the application or reference; and (c) without his having been given an opportunity (if he was aware of the application or reference) of making any representations to the court; but this section is not to be construed as limiting the matters about which rules of court may be made in relation to the consideration of such an application or reference. (6) [urgent cases] (7) The directions given under subsection 2(c) ... must include arrangements for the individual in question to be given an opportunity within 7 days of the court's giving permission or (as the case may be) making its determination on the reference to make representations about -- (a) the directions already given; and (b) the making of further directions. (8) and (9) [urgent cases] (10) On a hearing in pursuance of directions under subsection (2)(c) ... the function of the court is to determine whether any of the following decisions of the Secretary of State was flawed -- (a) his decision that the requirements of section 2(1)(a) and (b) were satisfied for the making of the order; and (b) his decisions on the imposition of each of the obligations imposed by the order. (11) In determining -- (a) what constitutes a flawed decision for the purposes of subsection (2) ... or (b) the matters mentioned in subsection (10), the court must apply the principles applicable on an application for judicial review. (12) If the court determines, on a hearing in pursuance of directions under subsection (2)(c) ... that a decision of the Secretary of State was flawed, its only powers are -- (a) power to quash the order; (b) power to quash one or more obligations imposed by the order; and (c) power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes. (13) In every other case the court must decide that the control order is to continue in force."

(emphasis added)

[11]The powers of the court to make derogating control orders are contained in section 4. For present purposes, it is sufficient to note that while the court may make such an order after a preliminary hearing without notice to the individual in question, there then has to be a "full hearing" at which the court may confirm or revoke the order. Subsection 4(7) provides that:

"At the full hearing, the court may confirm the control order (with or without modifications) only if -- (a) it is satisfied, on the balance of probabilities, that the controlled person is an individual who is or has been involved in terrorism-related activity; (b) it considers that the imposition of obligations on the controlled person is necessary for purposes connected with protecting members of the public from a risk of terrorism; (c) it appears to the court that the risk is one arising out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention; and (d) the obligations to be imposed by the order or (as the case may be) by the order as modified are or include derogating obligations of a description set out for the purposes of the designated derogation in the designation order."

(emphasis added)

[12]The schedule to the Act enables special rules of court to be made in respect of control order proceedings. Paragraph 4(3) states that such rules must secure --(a) that in control order proceedings and relevant appeal proceedings the Secretary of State is required (subject to rules made under the following paragraphs) to disclose all relevant material;

(b) that the Secretary of State has the opportunity to make an application to the relevant court for permission not to disclose relevant material otherwise than to that court and persons appointed under paragraph 7;

(c) that such an application is always considered in the absence of every relevant party to the proceedings and of his legal representative (if he has one);

(d) that the relevant court is required to give permission for material not to be disclosed where it considers that the disclosure of the material would be contrary to the public interest;

(e) that, where permission is given by the relevant court not to disclose material, it must consider requiring the Secretary of State to provide the relevant party and his legal representative (if he has one) with a summary of the material;

(f) that the relevant court is required to ensure that such a summary does not contain information or other material the disclosure of which would be contrary to the public interest;

(g) that provision satisfying the requirements of sub-paragraph (4) applies where the Secretary of State does not have the relevant court's permission to withhold relevant material from a relevant party to the proceedings or his legal representative (if he has one), or is required to provide a summary of such material to that party or his legal representative. (4) The provision that satisfies the requirements of this sub-paragraph is provision which, in a case where the Secretary of State elects not to disclose the relevant material or (as the case may be) not to provide the summary, authorises the relevant court -- (a) if it considers that the relevant material or anything that is required to be summarised might be of assistance to a relevant party in relation to a matter under consideration by that court, to give directions for securing that the matter is withdrawn from the consideration of that court; and (b) in any other case, to ensure that the Secretary of State does not rely in the proceeding on the material or (as the case may be) on what is required to be summarised. (5) In this paragraph 'relevant material', in relation to any proceedings, means -- (a) any information or other material that is available to the Secretary of State and relevant to the matters under consideration in those proceedings; or (b) the reasons for decisions to which the proceedings relate."

[13]The special rules are contained in Part 76 of the CPR. Rule 76.2 requires the court to give effect to the overriding objective in such a way as to "ensure that information is not disclosed contrary to the public interest." For the purposes of Part 76, the public interest is defined by Rule 76.1(4):

"... disclosure is made 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 and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest."

[14]Rule 76.22 enables the court to conduct hearings in private and to exclude the controlee and his representatives from all or part of the hearing. Rule 76.24 describes the functions of the Special Advocate. Rule 76.26 modifies the general rules of evidence and enables to the court to "receive evidence that would not but for this rule be admissible in a court of law": see rule 76.26(4).

[15]Rules 76.28 and 76.29 set out the procedure for dealing with closed material. In summary, the Secretary of State must apply to the court for permission to withhold the closed material from the controlee or his legal representatives and file a statement explaining his reasons for withholding that material. The enclosed material is then considered by the Special Advocate. If the Special Advocate challenges the need to withhold all or any of the closed material, the court must arrange the hearing to determine the issue, unless the Secretary of State and Special Advocate agree that the court may decide the issue without a hearing.

[16]Rule 76.29(6) states that:

"Where the court gives permission to the Secretary of State to withhold closed material, the court must - (a) consider whether to direct the Secretary of State to serve a summary of that material on the relevant party or his legal representative; but (b) ensure that no such summary contains information or other material the disclosure of which would be contrary to the public interest."

Factual background

[17]On 1st September 2005 the applicant applied to the court under section 3(1)(a) of the Act for permission to make a non-derogating control order against the respondent.

(a) and (b) in subsection 2(1) the order explained that:

"The basis for this decision is: The Secretary of State believes that you intended to go to Iraq to fight against coalition forces."

[18]The obligations in the order (as amended in a number of minor respects by Ouseley J) were as follows:

"(1) You will reside at [address given] ('the residence') and shall give the Home Office at least 7 days prior notice of any change of residence. (2) You shall report in person to your local police station (the location of which will be notified in writing to you at the imposition of this order) each day at a time to be notified in writing by your contact officer, details to be provided in writing upon service of the order. (3) You must surrender your passport, identity card or any other travel document to a police officer or persons authorised by the Secretary of State within 24 hours. You shall not apply for or have in your possession any passport, identity card, travel document(s) or travel ticket which would enable you to travel outside the UK. (4) You must not leave the UK. (5) You are prohibited from entering or being present at any of the following:- (a) any airport or sea port; (b) any part of a railway station that provides access to an international rail service. (6) You must permit entry to police officers and persons authorised by the Secretary of State, on production of identification, at any time to verify your presence at the residence and/or to ensure that you can comply with and are complying with the obligations imposed by the control order. Such monitoring may include but is not limited to:- (a) a search of the residence; (b) removal of any item to ensure compliance with the remainder of the obligations in these orders; and (c) the taking of your photograph."

[19]The Secretary of State's application was supported by a witness statement from Mr Whalley, a senior civil servant employed by the Home Office, who was authorised to make the statement on behalf of the Secretary of State. Having referred to sections 2 and 3 of the Act, Mr Whalley said this:

"3. The Secretary of State received and considered the relevant material relating to MB, being the same material as has been delivered to the Court. Having considered the papers and after meeting with relevant officials to discuss this case, the Secretary of State has concluded that there are reasonable grounds for suspecting that MB has been or is involved in terrorism-related activity and that a control order is necessary for purposes connected with protecting members of the public from a risk of terrorism. Therefore, having decided that there are grounds to make such an order against MB, the Secretary of State applies to this court under section 3(1)(a) for permission to make the order. 4. In considering what obligations to impose on MB, the Secretary of State has taken into account all the information before him, including the specific terrorism-related activity that he suspects MB was or is involved in. In addition, he has taken into account the known personal and family circumstances of MB. He is a single male and his immediate family are resident in the UK. The obligations will restrict his ability to travel outside the United Kingdom. However, given the seriousness of the activity that MB has been and is suspected of, the Secretary of State is satisfied that the proposed obligations are necessary to protect members of the public from a risk of terrorism, and that where the obligations interfere with MB's Convention rights, they are proportionate and the least intrusive measure needed to prevent and/or restrict involvement in that terrorism-related activity. 5. MB currently resides with his adult sister. Consideration has been given to any proposed obligation that would or might interfere with his or his sister's Convention rights and whether such interferences outweigh or reduce to any extent the proportionality of each obligation. Insofar as the proposed obligations do still interfere with his or his sister's Convention rights, the Secretary of State considers such interferences to be justified and proportionate, bearing in mind the legitimate aim sought of preventing and restricting terrorism-related activity. 6. Before applying for the making of the control order, the Secretary of State has consulted the Chief Constable of South Yorkshire Police about whether there is evidence available that could realistically be used for the purposes of the prosecution of MB for an offence relating to terrorism. It was the view of the Chief Constable of South Yorkshire Police that MB cannot be prosecuted successfully for such offences."

[20]The material delivered to the court included an open statement and supporting documents dated August 2005, a closed statement and supporting documents and an application for permission to withhold that closed material together with an outline summary of the reasons why the Secretary of State contended that the closed material should be withheld. So far as material, the open statement said this:

"Introduction 1. The Security Service considers that: - MB is involved in terrorism-related activities as defined in section 1(8) of the Prevention of Terrorism Act 2005. - It is necessary, for purposes connected with protecting members of the public from the risk of terrorism, to make an order imposing obligations on MB. - The combination of obligations recommended is necessary to reduce the risk posed by MB. Immigration Status 2. MB was naturalised as a British citizen in January 1998, after his mother was granted indefinite leave to remain in the UK. Summary 3. MB is an Islamist extremist who, as recently as March 2005, attempted to travel to Syria and then Yemen. The Security Service assessment is that MB was intending to travel onwards to Iraq. Disruption 4. MB attempted to travel to Syria on 1 March 2005 but was prevented from doing so by police officers at Manchester airport. He was examined under Schedule 7 of the Terrorism Act 2000 (TACT) and was found to have a lock knife and knuckle-duster in his luggage. MB stated during interview that he was intending to travel to Syria on holiday and that he would be meeting friends at the airport in Damascus. When questioned further he could not, or would not, provide the names of his friends or any details of them. The interviewing officers expressed the opinion that much of what MB told them was not true and possibly rehearsed. During the interview MB displayed a range of emotions from providing polite co-operation to being defiant and dismissive of questioning. 5. Following MB's interview by the police officers he was then interviewed by a Security Service officer. The officer spoke to MB for approximately 1 hour 30 minutes. Given MB's reluctance to discuss his trip with the police officers the initially discussed broad issues relating to young British Muslims. When the officer broached the subject of MB's travel he was informed that the trip was a holiday and MB did not know anyone is Syria. This was in direct opposition to his previous comments to the police officers. The officer suggested to MB that his lack of plans for his time in Damascus and the Yemeni telephone numbers in his mobile telephone, which he had claimed were Syrian, was strange. Despite being offered the opportunity to explain, MB became sullen and aggressive and refused to answer any further questions. As MB was unwilling to discuss his trip to Syria the officer informed him that the Security Service was aware of his plans to travel to Iraq. What followed was a period of verbal sparring during which MB maintained that the officer's claims were speculation and that the Security Service had no proof. At no point during the interview did MB deny that he was seeking to enter Iraq. The Security Service assessment is that MB was intending to travel from Syria onwards to Iraq. 6. On 2 March 2005, MB was stopped before boarding his flight to the Yemen by the Metropolitan Police at Heathrow airport. MB was examined under Schedule 7 of TACT and questioned in the presence of a duty solicitor. MB stated that he intended to visit his mother's family in Yemen following the disruption by police (at Manchester airport) of his planned visit to Syria. MB asserted that he intended to surprise his family, therefore he had not informed them of his travel, he did however have a friend who would meet him at the airport. When questioned further regarding this individual MB became agitated and would not, or could not, provide contact details for his friend despite stating that he contacted him by telephone. Before his release MB's UK passport was seized by SO13 officers under Section 19 PACE (Police and Criminal Evidence Act) and Common Law. 7. On 7 March 2005 officers from South Yorkshire Police visited MB's mother, MA, at her home address in Sheffield. The officers informed MA that MB had been spoken to by police at Manchester and Heathrow airports and that in light of the fact that he had not used his plane tickets, and had left the airport by rail, the police were concerned for his safety. MA did not appear unduly concerned by this information and stated that MB had left the family home a number of months ago following a dispute with his father. When asked whether MB had considered travelling to Iraq to fight against the coalition forces, MA stated that the fighting in Iraq was over and there was no need to travel there now that the country had 'taken charge of its affairs'. As the interview was closing MB's father AM arrived at the address. He confirmed that he had a difficult relationship with his son but could not contemplate MB's intended travel to Yemen could be construed as an attempt to join the fighting in Iraq. The interviewing officers noted that, at odds with her earlier demeanour, MA became more restless and apparently more concerned for MB whilst AM was present. She even asked the officers for assistance in locating him. Need to Impose a Control Order 8. The Security Service is confident that prior to the authorities preventing his travel, MB intended to go to Iraq to fight against coalition forces. Despite having been stopped from travelling once, MB showed no inclination to cancel his plans. The police prevented his travel on a second occasion, and seized his passport. 9. Following disruption by the police, MB has not made a concerted effort to reclaim his passport. However, given that SHAREB is an experienced facilitator with the ability to acquire false documentation, the Security Service assesses that his lack of passport will not prevent MB from travelling indefinitely. 10. The Security Service considers that it is necessary, for purposes connected with protecting members of the public, including armed forces abroad, from the risk of terrorism, to make an order imposing obligations on MB. It is considered that there is no other adequate measure that could be taken in order to protect members of the public from the risk of terrorism."

[21]The remainder of the statement dealt with the various obligations imposed by the order and the reasons for imposing them.

[22]On 2nd September Ouseley J considered the Secretary of State's application for permission on a without notice basis and, having concluded that the Secretary of State's decision that there were grounds to make the order was not "obviously flawed", granted permission under section 3(2)(b) of the Act for the Secretary of State to make the order against the respondent. The order, including amendments made (for the purposes of clarification) by Ouseley J, was made on 5th September and served on the respondent on 8th September 2005. As required by section 3(2)(c), Ouseley J gave directions for a hearing on 5th October, at which various procedural directions were made. Those directions were effectively superseded by further directions made on 17th November 2005. It is unnecessary to rehearse the detail because the various procedural steps required by the directions have now been completed.

[23]Mr Supperstone QC, who was appointed together with Miss Farbey as Special Advocate, did not challenge the Secretary of State's application to withhold the closed material so there was no need for a hearing under Rule 76.29. Mr Supperstone also agreed with Mr Eicke, who appeared with Mr Burnett QC on behalf of the Secretary of State, that it would not be possible to serve a summary of the closed material on the respondent or his legal advisers which would not contain information or other material the disclosure of which would be contrary to the public interest. No summary of the closed evidence was therefore served on the respondent.

[24]It is for the court to decide whether it is possible to serve the respondent with a summary which would not result in disclosure of the material contrary to the public interest: see CPR 76.29(6) above. Having read the closed material, I endorse the view shared by counsel that it would not be possible to serve a summary which would be capable of being in compliance with paragraph (b) in Rule 76.29(6). This is, therefore, a case where the respondent has not been provided with even a summary of the closed evidence against him.

[25]In response to the control order, the respondent served a lengthy witness statement dated 6th January 2006, denying that he had any intentions to go to Iraq; explaining why he wished to go to Syria or, if he was prevented from going to Syria, to the Yemen; giving his account of the interviews at Manchester airport on 1st March 2005 and at Heathrow on the following day, and explaining the adverse effects of the obligations placed upon him by the order.

[26]The Secretary of State responded on 17th February 2006 with a second open statement and supporting documents and a second closed statement and supporting documents. Shortly before the hearing the respondent served a second witness statement and his mother also served a witness statement. For the reasons given below, it is unnecessary to summarise the material contained in these later statements. The court's function

[27]By the end of the hearing there was substantial agreement between Mr Starmer QC who, with Mr Bajwa, represented the respondent, and Mr Burnett and Mr Supperstone as to the role of the court in hearings under section 3(10), but sharp disagreement as to whether, in discharging that role, the court was able to give the respondent a fair hearing for the purposes of Article 6.1 of the Convention, which provides, so far as material, that:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

[28]Before turning to the rival submissions, it is important to be clear as to what is, and perhaps more importantly what is not, the function of the court in a hearing under section 3(10). The Act makes it clear that the court's role is purely supervisory: see sub-sections 3(10) and (11). Thus, the court is not itself deciding whether, on the totality of the evidence available as at the date of hearing, the criteria in paragraphs (a) and (b) in section 2(1) are met. It is judicially reviewing the Secretary of State's decisions made on or shortly before 1st September 2005 that the criteria in paragraphs (a) and (b) of section 2(1) were met and that the obligations imposed by the order were necessary under section 1(3). It follows that the court must consider whether those decisions of the Secretary of State were "flawed" upon the basis of the material that was put before the Secretary of State at that time.

[29]Subsequent information, including in particular the respondent's answers in his first witness statement to the Secretary of State's open case and any further material contained in the second open and closed statements and the subsequent witness statements filed on behalf of the respondent, is irrelevant for the purposes of deciding whether decisions taken on or about 1st September 2005 were flawed applying judicial review principles. If there was any doubt about the permitted scope of a hearing under section 3(10), it would be resolved by contrasting the function of the court under subsections 3(10) and (11) with the function of the court at the "full hearing" into a derogating control order under section 4(7). At such a hearing the court itself decides, on all the evidence available as at the date of the hearing, and on the balance of probabilities, whether the controlee is or has been involved in terrorism-related activity and whether the imposition of obligations upon him is necessary for purposes connected with protecting members of the public from a risk of terrorism. Article 6, Civil or Criminal?

[30]Mr Burnett accepted that the respondent was entitled to the benefit of the guarantee of a "fair hearing" applicable to civil proceedings under Article 6.1 because the respondent's rights to respect for his private life and his home under Article8.1 were engaged. It will be recalled that obligation (6) in the control order requires the respondent to permit police officers and persons authorised by the Secretary of State to enter and search his residence at any time. Interference with the respondent's rights under Article 8.1 may be justified under Article

8.2 if it is necessary in the interests of national security, but a balancing exercise has to be carried out, and Article 6.1 entitles the respondent to a fair hearing before an "independent and impartial tribunal" in the determination of his civil rights under the Convention.

[31]That concession by Mr Burnett was rightly founded upon the conclusion of the House of Lords in R (McCann) v Manchester Crown Court

[2003] 1 AC 787

[2002] UK HL 39, that a defendant in proceedings for an anti-social behaviour order (ASBO) which, inter alia, prevented him from entering the Beswick area in Manchester, was entitled to the fair trial guarantee under the civil limb of Article 6.1 because his Article 8 rights were engaged: see Lord Steyn's speech at paragraph 29 and Lord Hope's speech at paragraph 80. Lord Hobhouse and Lord Scott agreed with Lord Steyn and Lord Hope (paragraphs 116 and 117). They also agreed with Lord Hutton, who in paragraph 112 of his speech reserved his position as to whether Article 6.1 was engaged. However, he did so upon the basis that insofar as the ASBO prohibited the defendant from using or engaging in any abusive, insulting, offensive, threatening or intimidating language or behaviour, there was no civil right under domestic law to engage in such behaviour. He acknowledged that:

"It can be argued that that part of the order [prohibiting the defendant from entering a particular area or engaging in some activity which is prima facie lawful] affects his civil rights so that Article 6.1 is engaged"."

[32]See also in this context the speech of Lord Nicholls, with which the remainder of their Lordships agreed in Re: S (Minors) (Care

[33]Although the present case is concerned with the respondent's Article 8 rights, it is important to remember the breadth of obligations that may be imposed on an individual by a control order. The list of possible obligations in subsection 1(4) is not exhaustive. An order may include any obligations that the Secretary of State considers necessary for purposes connected with preventing or restricting the controlee's involvement in terrorism-related activity: see subsection 1(3), and it is immaterial whether that involvement (which the obligation seeks to prevent or restrict) is connected with matters related to the Secretary of State's grounds for reasonable suspicion: see subsection 2(9).

[34]As the House of Lords and House of Commons Joint Committee on Human Rights pointed out in paragraph 33 of its Twelfth Report of Session 2005-06 (HL Paper 122, HC 915):

"... the obligations which can be imposed under control orders potentially interfere with a wide range of rights: the right to respect for private and family life and home under Article 8, freedom of thought, conscience and religion under Article 9, freedom of expression under Article 10, freedom of association under Article 11, and the right to peaceful enjoyment of possessions under Article 1 Protocol 1."

[35]The Joint Committee also expressed the view that the obligations which had been imposed in most of the other non- derogating control orders which have been made were "so restrictive of liberty as to amount to a deprivation of liberty for the purposes of Article 5.(1) [of the Convention]" (see paragraph 38).

[36]That issue does not arise in the present case since it is common ground that the obligations imposed upon the respondent by this particular control order are not so restrictive as to engage Article 5.1. The Joint Committee further concluded, in agreement with the view of the European Commissioner for Human Rights (report by Mr Alvaro Gil-Robles, Commissioner for Human Rights, on his visit to the United Kingdom on 4th to 12th November 2004, 8th June 2005, Commission DH (2005) 6) that at least some of the non-derogating control orders that" had been imposed amounted to the determination of a "criminal charge" against the individuals in question so that they were entitled to the full set of guarantees in Article 6 (see paragraphs 50 to 52 of the Joint Committee's report).

[37]If the matter had been free from authority I would have had considerable sympathy for that view and with the Committee's reasoning in paragraph 51 of its report. However, in A & Others v Secretary of State for the Home Department

[2004] QB 335

one of the many issues considered by the Court of Appeal was whether the proceedings under Part 4 of the Anti-terrorism Crime and Security Act 2001 ("the 2001 Act") which made provision for the detention of suspected international terrorists were civil or criminal for the purposes of Article 6. In the context of the appeals from the Special Immigration Appeals Tribunal (SIAC), in which very many issues were canvassed, the Article 6 point was regarded as a subsidiary one and perhaps this explains why it was dealt with quite shortly by Lord Woolf CJ, with whom Brooke LJ and Chadwick LJ agreed, in paragraph 57 of his judgment, as follows:

"Article 6 It remains for me to deal with certain other subsidiary points which are advanced. The first is linked to the position in relation to the procedure adopted by the Commission. It is submitted that the proceedings relate to a criminal charge within the meaning of article 6, giving rise to the application of the presumption of innocence, the right to disclosure of the case against them, and the material upon which it is based, to the fullest possible extent. As to this, I agree with the Commission that the proceedings are not criminal. I would, however, accept the fact that the proceedings are civil proceedings within article 6. The proceedings before the Commission involve departures from some of the requirements of article 6. However, having regard to the issues to be inquired into, the proceedings are as fair as could reasonably be achieved. It is true that the detainees and their lawyers do not have the opportunity of examining the closed material. However, the use of separate counsel to act on their behalf in relation to the closed evidence provides a substantial degree of protection. In addition, in deciding upon whether there has been compliance with article 6 it is necessary to look at the proceedings as a whole (including the appeal before this court). When this is done and the exception in relation to national security, referred to in article 6, is given due weight, I am satisfied there is no contravention of that article."

[38]Mr Starmer and Mr Supperstone, who both submitted that proceedings under section 3 of the Act were criminal rather than civil, applying the threefold test in Engel v Netherlands (No 1)

[1979] 1 EHRR 647

at paragraphs 81 and 82, acknowledged that Court of Appeal's decision in A was binding upon me, unless there was some basis upon which the regime under Part 4 of the 2001 Act could be distinguished from the regime under section 3 of the Act. Although there are differences between the two statutory schemes (see below), since the former authorised detention and the latter does not, there is no relevant distinction for the purpose of deciding whether the present proceedings are civil or criminal. Although the Court of Appeal's decision in A was reversed by the House of Lords (see

[2005] 2 AC 68

) upon the basis that section 23 of the 2001 Act was incompatible with Articles 5 and 14 of the Convention, the House of Lords did not have to consider the Article 6 point. It follows that I am bound to conclude that these proceedings are civil for the purposes of Article 6.

[39]For the sake of completeness, I should add that both Mr Starmer and Mr Supperstone accepted that the proceedings were classified as civil not criminal proceedings in domestic law (the first Engel criterion). They relied in particular upon the second criterion and submitted that the allegation against the respondent was, in substance, that he engaged in criminal conduct of a very serious kind. When considering the second criterion in Engel much will depend upon the precise "terrorism-related activity" in which the controlee is suspected of having been involved. In many cases such activity may amount to a criminal offence: see the actions falling within subsection 1(2) of the 2000 Act (above) and the new offences contained in the Terrorism Act 2006 ("the 2006 Act"). In the present case, however, it is questionable, even looking at the closed material, whether the respondent's activities in March 2005 would have amounted to a criminal offence (assuming that the Secretary of State's suspicions could be proved to the criminal standard of proof) at a time when section 5 of the 2006 Act had not been enacted. Moreover, when the third Engel criterion is considered, the obligations imposed by this control order are much less intrusive than the obligations which have been imposed in most of the other cases under section 3 of the Act: see the Schedule of Obligations which have been imposed on "most but not quite all" of the controlees contained in Annex 2 to the First Report of the Independent Reviewer pursuant to section 14(3) of the Act, dated 2nd February 2006. I appreciate that the third Engel criterion requires the court to "take into consideration the degree of severity of the penalty that the person concerned risks incurring" (my emphasis) (see paragraph 82). However, the severity of the obligations which are actually imposed cannot be disregarded as wholly irrelevant.

[40]In support of his submission that proceedings under section 3 of the Act were civil, not criminal, Mr Burnett relied, in addition to the Court of Appeal's decision in A (above) upon the House of Lords decision in McCann (above), that proceedings leading to the making of an ASBO did not involve a criminal charge for the purposes of Article 6. Since I am bound by the decision in A in any event, a detailed discussion of this issue in this judgment would serve no useful purpose. I would merely say that if I had not been bound by the decision in A, I would have wished to consider whether, in applying the second criterion in Engel, a distinction can and should be drawn between an allegation that an individual has been engaged in "anti-social behaviour" and an allegation that he has been involved in "terrorism-related activity". As a matter of first impression, the latter allegation would appear to be far more serious and more closely akin to an allegation of criminal behaviour, hence section 8 in the Act which provides (in part):

"(1) This section applies where it appears to the Secretary of State -- (a) that the involvement in terrorism-related activity of which an individual is suspected may have involved the commission of an offence relating to terrorism; and (b) that the commission of that offence is being or would fall to be investigated by a police force. (2) Before making, or applying for the making of, a control order against the individual, the Secretary of State must consult the chief officer of the police force about whether there is evidence available that could realistically be used for the purposes of a prosecution of the individual for an offence relating to terrorism. (3) If a control order is made against the individual the Secretary of State must inform the chief officer of the police force that the control order has been made and that subsection (4) applies. (4) It shall then be the duty of the chief officer to secure that the investigation of the individual's conduct with a view to his prosecution for an offence relating to terrorism is kept under review throughout the period during which the control order has effect."

[41]I would also have wished to consider whether, in applying the third criterion in Engel, the obligations which may be imposed on a controlee under subsections 1(3) to (7), bearing in mind subsection 2(9) above, are potentially so severe in their effect upon the controlee that they amount to a penalty, even though they are imposed for the purpose of prevention not punishment. The restrictions imposed by the ASBO in McCann upon activities that were prima facie lawful were relatively limited (a prohibition upon entering a particular area in Manchester). This must be contrasted with the obligations that have been imposed on most of other controlees, which have been described by the Independent Reviewer as falling "not very far short of house arrest" (see paragraph 43 of his Report). I would pose the question, is there no limit to the severity of sanctions that may be imposed in civil proceedings without the safeguards afforded by Article 6.2 to 6.3 of the Convention if the purpose of the sanction is said to be prevention, not punishment? What if the state's ability to prosecute is due, at least in part, to a policy decision not to admit certain types of evidence, eg, intercept evidence, in criminal trials? I would reserve my position as to whether the ASBO regime is distinguishable from the control order regime in these, and other, respects which merit further consideration. "Fair hearing"

[42]Although numerous authorities were cited by the parties, the applicable principles are clear. Where the initial decision determining the individual's civil rights and obligations is taken by an administrator (in the present case the Secretary of State) who is not independent: "It is permissible to consider whether the composite procedure of administrative decision together with a right of appeal to a court is sufficient ... it will be sufficient if the appellant (or reviewing) court has 'full jurisdiction' over the administrative decision ... as established in the landmark case of Bryan v United Kingdom

[1995] 21 EHRR 342

, 'full jurisdiction' does not necessarily mean jurisdiction to re-examine the merits of the case but, as I said in the Alconbury case

[2003] 2 AC 295

, 330, para 87, 'jurisdiction to deal with the case as the nature of the decision requires'." : see paragraph 33 of the speech of Lord Hoffmann (with whom the remainder of their Lordships agreed) in Runa Begum v Tower Hamlets LBC

[2003] 2 AC 430

[2003] UK HL 5.

[43]When considering whether conventional judicial review was adequate in the Begum case, Lord Hoffmann referred in paragraph 51 to the decision of the European Court of Human Rights in Bryan v United Kingdom

[1995] 21 EHRR 342

"The great principle which Bryan decided ... was that 'in assessing the sufficiency of the review ... it is necessary to have regard to matters such as the subject matter of the decision appealed against, the manner in which that decision was arrived at, and the content of the dispute, including the desired and actual grounds of appeal.'"

[44]When considering the first of those issues, Lord Hoffmann contrasted the Inspector's decision in the Bryan case that Bryan had acted in breach of planning control, a decision that was binding upon him in any subsequent criminal proceedings for failing to comply with the notice, with other administrative decisions: "A finding of fact in this context seems to me very different from the findings of fact which have to be made by central or local government officials in the course of carrying out regulatory functions (such as licensing or granting planning permission) or administering schemes of social welfare such as Part VII. The rule of law rightly requires that certain decisions, of which the paradigm examples are findings of breaches of the criminal law and adjudications as to private rights, should be entrusted to the judicial branch of government." (see paragraph 42)

[45]When considering the manner in which the decision was arrived at, it is important to have regard to the totality of the proceedings and, in particular, to what procedural safeguards exist in the process viewed as a whole. Thus, in the Begum case, in addition to the fact that the decision was a judgmental one in the field of social welfare, it was relevant that the statutory scheme provided for an internal review by a more senior officer of the initial decision. In that review, Mrs Begum was entitled to make representations and be represented, and the Reviewer was obliged to give reasons if he rejected her representations: see paragraph 9 of the speech of Lord Bingham. In that context, the absence of a full fact finding jurisdiction in the County Court on appeal from the Reviewer's decision did not mean that it did not have "full jurisdiction."

[46]In the Alconbury case, the procedural safeguards included the fact that there was a public inquiry before an Inspector who would make a report and recommendations to the Secretary of State, having given the parties the opportunity of calling and cross-examining witnesses: see paragraph 46 of the speech of Lord Slynn. When considering the content of the dispute and, in particular, whether the Secretary of State should be the decision maker, their Lordships emphasised that "planning matters are essentially matters of policy and expediency, not of law": see paragraph 159 in the speech of Lord Clyde, also paragraph 48 of the speech of Lord Slynn and paragraph 117 of the speech of Lord Hoffmann (but note that Lord Hoffmann qualified the final sentence of this paragraph in relation to findings of fact in paragraphs 40 and following in his speech in the Begum case).

[47]Applying the "great principle" decided in Bryan to the facts of the present case, there can be no doubt where section 3 proceedings stand in the spectrum, ranging between, at one end, findings of breaches of the criminal law, the paradigm example of decisions which the rule of law requires should be entrusted to the courts, and at the other end of the spectrum, decisions on matters of planning policy which should be taken by the executive which will be answerable for such decisions to Parliament. An allegation that an individual is or has been engaged in terrorism-related activity is, even if it is not actually within, then as close as it is possible to be, to Lord Hoffmann's paradigm example.

[48]The third factor mentioned in Bryan, the content of a dispute, including the desired and actual grounds of appeal, is likely to be closely related to the first, the subject matter of the decision appealed against. A land use planning decision, for example, that farming land should be compulsorily purchased for the construction of a by-pass is likely to lead to a challenge on the ground that the acquisition is not expedient. In such a case, a court will not have the necessary expertise to be able to "independently assess the merits and facts of the case": see the complaint in Zumtobel v Austria

[1993] 17 EHRR 116

, which was rejected by the European Court of Human Rights: "Regard being had to the respect which must be accorded to decisions taken by the administrative authorities on the grounds of expediency and to the nature of the complaints made by the Zumtobel Partnership." (cited in paragraph 88 of Lord Hoffmann's speech in Alconbury).

[49]By contrast, the content of the dispute in the present case is whether the respondent is or has been engaged in terrorism activity and, if the answer to that question is yes, (on the basis of a reasonable suspicion) whether it is necessary to impose any and, if so, what, obligations upon him for the purpose of protecting the public from the risk of terrorism. Unlike matters of planning policy, these are questions which the courts are not merely well equipped to answer, but will have to answer if the power to make derogating control orders under section 4 of the Act is invoked following a designated derogation: see section 4(7) above.

[50]If one looks at the respondent's first witness statement, his ground of appeal is, in summary, "I was not involved in terrorism-related activity." Save for the standard of proof, there is no difference between determining that ground of appeal in proceedings under the Act and resolving a very similar (and where the alleged terrorism-related activities do amount to a crime, identical) allegation in criminal proceedings.

[51]I turn, therefore, to the third matter to be considered, the manner in which the decision was arrived at, bearing in mind that it is important to have regard to whatever procedural safeguards may be incorporated into the process as a whole. In my view, the features of the decision-making process that are relevant for this purpose are as follows.(1) The order is made by the executive, not by the court. For entirely understandable reasons, this is one of those administrative decisions where there is no prior notice to, or consultation with, the individual who will be subject to the order. Thus, the controlee has no opportunity to make representations, to put his side of the case, or to attempt to influence the decision before it is made. While this is clearly a necessary feature of the control order process, it must be borne in mind when considering whether any potential unfairness is adequately addressed at a later stage in the proceedings.

(2) Although the order is made with the permission of the court, the ability of the court to exercise a supervisory role at the section 3(2) stage is very limited indeed. Its function is to consider "whether the Secretary of State's decision that there are grounds to make the order is obviously flawed" (see paragraph (a)). However, it considers that question upon the basis of the documents filed by the Secretary of State. There is no challenge to the Secretary of State's material because the court may consider the application without the respondent having even been notified of it: see subsection 3(5). Thus, apart from refusing to give permission to make an order containing the most egregious error upon its face, the court can have no significant input at the section 3(2) stage. In making this observation, I do not overlook the fact that Ouseley J made a number of amendments for the purpose of clarifying the obligations imposed by the order. In reality, such minor amendments mark the furthest extent of the court's ability to influence the decision-making process at the section 3(2) stage.

[52]Again, the need for a speedy, without notice permission stage is readily understandable: see the parallel requirement to hold "an immediate preliminary hearing" if an application is made for a derogating control order under section 4 of the Act. However, the fact that the permission stage is without notice, unlike, for example, the permission stage in ordinary judicial review proceedings where there is provision for a respondent to file an Acknowledgment of Service and Summary Grounds of Defence must be borne in the mind when considering whether the lack of any opportunity for the respondent to put his side of the case at the outset is remedied by the subsequent hearing under section 3(10). (3) The standard of proof to be applied by the decision taker in making the decision subject to review is very low: reasonable grounds for suspicion, even though the allegation made against the respondent, that he is or has been involved in terrorism-related activity, is a very serious one and may in some cases amount to an allegation that he has committed very serious crimes which would be punishable upon conviction in a criminal court with life imprisonment. Because the allegation against the respondent is very serious, the consequences of the decision for the respondent are equally serious, even if they do not (quite) amount to a deprivation of liberty. It should also be noted that contravention of any of the obligations in a control order without reasonable excuse is a criminal offence punishable with up to five years' imprisonment: see section 9 of the Act.

[53]It is common ground that the question, what is meant by a reasonable suspicion?, is to be answered by reference to the speech of Lord Hope in O'Hara v Chief Constable of the Royal Ulster Constabulary

[1997] AC 286

. Section 12(1) of the Prevention of Terrorism (Temporary Powers) Act 1984 provided that:

"a constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be ... (b) a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this Part of the Act applies; ..."

[54]At page 298A to E Lord Hope said:

"My Lords, the test which section 12(1) of the Act of 1984 has laid down is a simple but practical one. It relates entirely to what is in the mind of the arresting officer when the power is exercised. In part it is a subjective test, because he must have formed a genuine suspicion in his own mind that the person has been concerned in acts of terrorism. In part also it is an objective one, because there must also be reasonable grounds for the suspicion which he has formed. But the application of the objective test does not require the court to look beyond what was in the mind of the arresting officer. It is the grounds which were in his mind at the time which must be found to be reasonable grounds for the suspicion which he has formed. All that the objective test requires is that these grounds be examined objectively and that they be judged at the time when the power was exercised. This means that the point does not depend on whether the arresting officer himself thought at that time that they were reasonable. The question is whether a reasonable man would be of that opinion, having regard to the information which was in the mind of the arresting officer. It is the arresting officer's own account of the information which he had which matters, not what was observed by or know to anyone else. The information acted on by the arresting officer need not be based on his own observations, as he is entitled to form a suspicion based on what he has been told. His reasonable suspicion may be based on information which has been given to him anonymously or it may be based on information, perhaps in the course of an emergency, which turns out later to be wrong. As it is the information which is in his mind alone which is relevant however, it is not necessary to go on to prove what was known to his informant or that any facts on which he based his suspicion were in fact true. The question whether it provided reasonable grounds for the suspicion depends on the source of his information and its context, seen in the light of the whole surrounding circumstances."

[55]The same standard of proof was applied in the certification process under the 2001 Act. Under section 21(1) of that Act the Secretary of State could issue a certificate if he(a) reasonably believed that a person's presence in the UK was a risk to national security, and

(b) reasonably suspected that the person was a terrorist.

[56]On an appeal under section 25, SIAC was under a duty to cancel the certificate if: "(a) it considers that there are no reasonable grounds for a belief or suspicion of the kind referred to in section 21(1)(a) or (b), or (b) it considers that for some other reason the certificate should not have been issued." (see subsection (2)).

[57]If the certificate was not cancelled, the appeal was dismissed (see subsection (3)).

[58]Both SIAC and the Court of Appeal rejected submissions made on behalf of the detainees that a more stringent test should be applied. In SIAC's generic judgment delivered on the 29th October 2003, Ouseley J, having analysed the relevant authorities, said in paragraphs 46 to 48:

"46. We accept that those cases illustrate the proposition that the objective judgment of whether reasonable grounds exist depends on the circumstances. Urgency, for example, may make it reasonable to rely on information upon which it would be unreasonable to rely without taking matters further, if more time were available. We accept Mr Gill's submission that the extent, nature, independence and reliability of the evidence are relevant. The extent to which obvious lines of enquiry, which could have been followed, have been ignored is relevant. These cases also recognise the particular difficulties and risks faced in relation to terrorism, which may require urgent action and entail reliance on sources which do not usually appear in court cases. We also accept the general point that what may be reasonable for an arrest for a short period of detention may be insufficient for indefinite detention. It is all the circumstances which are relevant. 47. Mr Gill goes too far however when he submits that the evidence must point 'unequivocally and strongly to the conclusion' that the Appellant falls within section 21. Likewise, he is wrong to suggest that an extremely strong basis for suspicion, with the scope of that word strained to its uttermost limits, was required by the statute. 48. It cannot be construed so as to re-impose requirements which are the subject of the derogation. The test is still whether reasonable grounds for suspicion and belief exist. The standard of proof is below a balance of probabilities because of the nature of the risk facing the United Kingdom, and the nature of the evidence which inevitably would be used to detain these Appellants. Having said that, it does have to be scrutinised carefully and its weaknesses and gaps examined to see if it does provide such grounds or whether suspicion exists or survives because of a failure to investigate matters in obvious ways which would have cast a clearer light, one way or the other, on the point."

[59]On appeal the Court of Appeal rejected submissions that SIAC had adopted a wrong approach and adopted "an insufficient standard of scrutiny": see A & Others v Secretary of State for the Home Department (No 2)

[2005] 1 WLR 414

[2004] EWCA Civ 1123

, per Pill LJ at paragraphs 28 to 52. In paragraph 46 Pill LJ referred to Lord Woolf's analysis in M v Secretary of State for the Home Department

[2004] 2 All ER 863

, of the task of SIAC in appeals under section 25:

"SIAC's task is not to review or 'second guess' the decision of the Secretary of State but to come to its own judgment in respect of the issue identified in section 25 of the 2001 Act."

[60]Unsurprisingly, Mr Burnett submitted that if reasonable suspicion was sufficient to justify detention under the 2001 Act, it could not be said to be unfair as the basis for imposing obligations less than detention under section 3 of the Act. He also submitted that one should distinguish between substantive unfairness (a submission that the Act as a whole is unfair) and procedural unfairness (a submission that the particular procedure in section 3 is unfair). Criticism of the standard of proof fell into the former category. I do not accept that last submission. The standard of proof required of the original decision taker is capable of being a relevant factor when making an assessment of the extent to which the reviewing court will in reality be able to influence the decision-making process so as to have "sufficient jurisdiction" to deal with any particular case.

[61]In McCann, section 1 of the Crime and Disorder Act 1998 did not specify the standard of proof to be applied by the Magistrates' Court. The Magistrates had power to make an ASBO "if it is proved that the conditions mentioned in subsection (1) are fulfilled": see paragraph 6 of the speech of Lord Steyn. Even though the House of Lords concluded that the proceedings for an ASBO were civil, not criminal, for the purposes of Article 6.1, their Lordships concluded that the higher civil standard of proof, which was in practice indistinguishable from the criminal standard of proof, should be applied by the Magistrates: see Lord Steyn at paragraph 37. In paragraph 82 Lord Hope rejected the submission advanced on behalf of the Secretary of State that the ordinary civil standard of proof should apply, saying that:

"... it is not an invariable rule that the lower standard of proof must be applied in civil proceedings. I think that there are good reasons, in the interests of fairness, for applying the higher standard when allegations are made of criminal or quasi-criminal conduct which, if proved, would have serious consequences for the person against whom they are made."

(emphasis added)

[62]Both Lord Steyn (in paragraph 37) and Lord Hope distinguished the condition in section 1(1)(a) of the 1998 Act which requires proof that a person had acted in an anti-social manner, and the condition in section 1(1)(b) that an ASBO is necessary. In paragraph 83 Lord Hope pointed out that the latter:

"raises a question which is a matter for evaluation and assessment. But the condition in section 1(1)(a) that the defendant has acted in an anti-social manner raises serious questions of fact, and the implications for him of proving that he has acted in this way are also serious. I would hold that the standard of proof that ought to be applied in these cases to allegations about the defendant's conduct is the criminal standard."

[63]Lord Scott and Lord Hobhouse agreed. Mr Burnett submitted that McCann was a case where the relevant Act required proof, to some unspecified standard, of conduct by an individual and the House of Lords merely fixed the standard. That could be distinguished from the position under section 3 which did not require proof, but merely a reasonable suspicion.

[64]While criterion (b) in section 2(1) of the Act does raise a question which is a matter for evaluation and judgment, the question raised by criterion (a) is the same (apart from the fact that the behaviour in issue is much more serious) as the question raised in subsection 1(a) of the Crime and Disorder Act. Both raise serious questions of fact with serious implications for the individual if an order, whether an ASBO or control order, is made. If there are "good reasons in the interest of fairness" for applying the criminal standard of proof when deciding whether an individual has acted in an anti-social manner, it cannot be irrelevant in assessing the fairness of control order proceedings overall that a much lower standard of proof is applied when the underlying allegation is that an individual has been involved in terrorism-related activity. Of course, the risk posed to members of the public by terrorism is far more grave than the risk posed to persons in a particular local government area by anti-social behaviour. In the former case, the interests of national security are engaged and it is said that this, together with the nature of much intelligence information, will make it difficult, for evidential reasons, for the Secretary of State to establish more than a reasonable suspicion. Is that submission correct? (4) In proceedings under section 3 the Secretary of State is able to deploy the whole of his case, relying on evidence which would not be admissible in ordinary criminal or civil proceedings (see CPR 76.26(4) above), and he may adduce any "sensitive" intelligence material in closed documents and closed session. Thus a lower standard of proof is not required because the Secretary of State is unable, because of the constraints of national security, to rely upon certain material in his possession. In cases under section 4, where the Secretary of State is similarly able to deploy the whole of his case, the court must apply the "balance of probabilities" test. The court's power to make derogating control orders may be exercised only in circumstances where there is a public emergency in respect of which there has been a designated derogation from all or part of Article 5: see section 4(7)(c). Since the obligations that may be imposed by derogating control orders are, by their very nature, more severe than those which can be imposed by non-derogating control orders, it follows that the risks to members of the public which a derogating control order is intended to address will be that much greater. Nevertheless, in circumstances where the activities of the controlee may pose a much greater risk to the public, the standard of proof to be applied by the court under section 4(7) makes it clear that the nature of intelligence material and the need to protect national security are not an obstacle to a procedural requirement that the Secretary of State's case for a non- derogated control order should be established on the balance of probabilities.

[65]There is no explanation in the documentary material before the court and, when asked by me, Mr Burnett was unable to provide one in his submissions, as to why it was considered appropriate to apply a lower standard of proof in section 3 cases. The allegation made against the individual is no less grave, and while it is not intended that a non-derogating control order will infringe the individual's rights under Article 5, it may, depending upon the severity of the obligations imposed, either do so, or come very close to doing so, as well as interfering with his rights under Articles 8 to 11 and Article 1 Protocol 1. (5) Not merely does the Secretary of State have to meet a very low standard of proof whilst being able to deploy the whole of his case, including evidence that would otherwise be inadmissible, the procedure enables to the Secretary of State to place a significant part, and in some cases the significant part of his case, before the court in the absence of the respondent and his legal representatives: see the provisions relating to closed material, the court's power to exclude the respondent and his legal advisers, and the appointment and duties of the Special Advocate contained in Part 76 of the CPR (above).

[66]In the present case it has not been possible to provide the respondent with even a summary of the closed material. In his submissions, Mr Burnett fairly described the applicant's open case as "relatively thin". Even if the interviews with the respondent on 1st and 2nd March 2005 and with his mother and father on 4th March 2005 were sufficient to establish a reasonable suspicion that the respondent intended to travel indirectly to Iraq, British citizens are free to travel to Iraq if they wish to do so. A desire to travel to Iraq could not, of itself, be a basis for suspecting that an individual is or was involved in terrorism-related activity. On the open material, the only basis on which anyone could reasonably suspect the respondent of being involved in such activity is the following sentence in paragraph 8 of the first open statement:

"The Security Service is confident that prior to the authorities preventing his travel [the respondent] intended to go to Iraq to fight against coalition forces"

(emphasis added).

[67]The basis for the Security Service's confidence is wholly contained within the closed material. Without access to that material it is difficult to see how, in reality, the respondent could make any effective challenge to what is, on the open case before him, no more than a bare assertion.

[68]In his submissions, Mr Burnett placed particular emphasis upon the need to have regard to "the whole surrounding circumstances" when examining objectively the question of whether there were reasonable grounds for suspicion: see the final sentence in the passage from Lord Hope's speech in O'Hara, cited above. However, the reality in the present case is that the respondent has no means of examining the circumstances surrounding the bare assertion by the Security Service. Other than the fact that the information supporting the assertion came from the Security Service, he does not know the source of the information or its context. The Special Advocate is able to explore those issues, as he was on behalf of the detainees in proceedings before SIAC under the 2004 Act. In A (No 2) Pill LJ referred, with approval, to the dicta of Lord Woolf in paragraph 57 of his judgment in A (see paragraph 37 above).

[69]Thus, Mr Burnett submits that the use of a Special Advocate to deal with the closed material in these proceedings cannot be in breach of Article 6.1. I accept that in the light of the Court of Appeal's decisions in A and A (No 2), the use of closed material when coupled with the appointment of a Special Advocate does not, of itself, result in non-compliance with Article 6.1. But it is still a factor to be taken into consideration in assessing how far section 3 proceedings involve departures from the requirements of Article 6.1 and whether they are "as fair as can reasonably be achieved."

[70]Moreover, the Court of Appeal's conclusion that the appointment of a Special Advocate provided "a substantial degree of protection" must now be considered in the light of the House of Lords decision in R (Roberts) v Parole Board

[2005] 2 AC 738

[2005] UK HL 45. Although Roberts was concerned with the requirements of procedural fairness under Article 5.4 (where the individual is challenging his continued detention), the principles are, if not equally applicable to the "fair hearing" guarantees in Article 6.1, then at least of relevance, even if there is a greater degree of latitude as to what fairness may require in any given case under Article 6.1.

[71]Although Lord Bingham dissented on the issue of whether the Parole Board had power to adopt a Special Advocate procedure, he did not differ from the majority of their Lordships as to the limitations inherent in such a procedure. Having referred to a number of authorities establishing:

"the fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party." (see paragraph 16). He said this in paragraph 17: "

The European court has affirmed the importance of this principle in criminal cases governed by

article 6(1) of the Convention

, holding that as a general rule all evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument, giving him an adequate and proper opportunity to challenge and question witnesses against him: see for example [authorities cited]. In non-criminal article 5(4) cases the approach of the court has been similar, generally requiring disclosure of adverse material and an adversarial procedure of a judicial character in which the person affected has the effective assistance of his lawyer and has the opportunity to call and question witnesses: see, for example [authorities cited]. It is quite true, as the board insisted in argument, that the court accepted that these rights were not absolute or incapable of valid qualification. But in Tinnelly, para 72, the court pointed out that any limitations must not 'restrict or reduce the access [to the court] left to the individual in such a way or to such an extent that the very essence of the right is impaired."

[72]In paragraph 18 of his speech Lord Bingham described the limitations of the Special Advocate procedure, noted that the Court of Appeal had said in M (above) that an appellant to SIAC having to respond to closed evidence was "undoubtedly under a grave disadvantage", and concluded that (in the words of Lord Hewart CJ in a wholly different context) "the specially-appointed advocate would inevitably be taking blind shots at a hidden target."

[73]Lord Bingham continued in paragraph 19:

"In view of what the European court in Garcia Alva, para 39, called 'the dramatic impact of deprivation of liberty on the fundamental rights of the person concerned, I would doubt whether a decision of the board adverse to the appellant, based on evidence not disclosed even in outline to him or his legal representatives, which neither he nor they had heard and which neither he nor they had had any opportunity to challenge or rebut, could be held to meet the fundamental duty of procedural fairness required by article 5(4). 'It is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory': Stafford v United Kingdom [2002] 35 EHRR 1121, para 68. If the procedure proposed is fully adopted, the appellant's rights under article 5(4) could be all but valueless. The Secretary of State might have to make the difficult choice between not disclosing information to the board and ensuring effective protection of its source. But I would decline the appellant's invitation to rule, at this stage, that the adoption of the proposed procedure is necessarily incompatible with article 5(4). The practice of the European court is to consider the proceedings in question as a whole, including the decisions of appellate courts: Edwards v United Kingdom 15 EHRR 417, para 34. Thus its judgment is almost necessarily made in retrospect, when there is evidence of what actually happened. This reflects the acute sensitivity of the court to the facts of a given case. Save where an issue of compatibility turns on a pure question of statutory construction, the House should in my opinion be similarly reluctant to rule without knowing what has actually happened. This seems to me important because there are some outcomes which would not in my opinion offend article 5(4) despite the employment of a specially appointed advocate. It might, for instance, be that the board, having heard the sensitive material tested by the specially appointed advocate, wholly rejected it. Or having heard the material tested in that way the board might decline to continue the review unless the sensitive material, or at least the substance of it, were disclosed at least to the appellant's legal representatives, relying on the court's observation in Doorson, above, para 74, that 'the Convention does not preclude identification - for the purposes of article 6(3)(d) - of an accused with his counsel'. Or the board might, with the assistance of the specially appointed advocate, devise a way of anonymising, redacting or summarising the sensitive material so as to enable it to be disclosed to the appellant or his legal representatives. Or the board might, in a manner that was procedurally fair, reach a decision without relying at all on the sensitive material. If any of these possibilities were to eventuate, I do not think there would be a violation of article 5(4)."

[74]It is important to bear in mind that these observations were made in the context of a procedure under which the board was deciding the issue itself. Thus, for example, it might be able to reach a decision without relying at all on the sensitive material. The board was not reviewing the lawfulness of a decision that had been taken by another body upon the basis of material, some of which had not been disclosed to the person concerned. If, as in the present case, not merely a part but the substantial part of the case against him is not disclosed to the individual in question, it is difficult to see how "the very essence of the right" (of access to the court) is not impaired. If it is not to be impaired, then the proceedings overall must incorporate significant checks and counter balances.

[75]In Roberts, Lord Woolf emphasised the expertise of the decision taker:

"The nature of the panel who makes the decision, as illustrated by this case, perhaps provides the greatest protection for the prisoner because of the need to balance carefully the conflicting interests involved before deciding whether non disclosure is justified. An experienced judge is able to make some appropriate allowance for the fact that evidence or information is not tested as well as would normally be the case in an adversarial hearing. In addition there are usually steps which the judge can take which will minimise the scale of non disclosure and its effect. It is here that the SAA can assist. However, this is not to suggest that the prisoner will not remain at a significant disadvantage if he is not in a position to instruct his representative on the matters relied on against him in the usual manner. It is because of this that non disclosure is a last resort and the question can still arise as to whether in the particular case there has been a breach of the irreducible minimum standard of fairness."

[76]In paragraphs 76 to 78 Lord Woolf said:

"76. The fact that information is withheld from a prisoner does not mean that there is automatically such a fundamental breach of the prisoner's rights either under article 5(4) or under domestic law. There can be an infinite variety of circumstances as to the degree of information that is withheld completely or partially without any significant unfairness being caused. The responsibility of the panel is to ensure that any unfairness is kept to a minimum while balancing the triumvirate of interests to which I have already referred. There may need initially to be a total withholding of information, but at an early stage of the hearing the prisoner may be able to be informed of the gist of what is relied on against him. Documents can be edited. There has to be detailed management of the hearing to ensure that the prisoner has the widest information possible. In relation to this management the [Special Advocate] can have a critical role to play on the prisoner's behalf. 77. There are two extreme positions so far as the prisoner is concerned. On the one hand there is full disclosure and on the other hand there is no knowledge of the case against him being made available to the prisoner, so that even with a [Special Advocate] he cannot defend himself. In between the two there is a grey area and within that grey area is the border which is the parameter between what is acceptable and what is not acceptable. Where that border is situated is fact-specific, depending on all the circumstances that have to be balanced. So far as article 5(4) is concerned the need to examine the facts as a whole, including any appellate process, before coming to a decision is critical as Lord Bingham points out in his speech, at para 19. The same is true in domestic law. To make rulings in advance of the actual hearing would be to introduce a rigidity that would make the task of the board extraordinarily difficult. The position has to be looked at in the round examining the proceedings as a whole with hindsight and taking into account the task of the board. The board's existing statutory framework, including the Rules, do not entitle the board to conduct its hearing in a manner that results in a significant injustice to a prisoner and in view of article 5(4) I do not anticipate that primary legislation can now be introduced that expressly authorises such a result without contravening the Human Rights Act 1998 even if express legislative authority was thought to be desirable. 78. For support for this approach I would gratefully adopt the authorities relied on by Lord Bingham and the series of statutory precedents to which he refers in paras 25 et seq of his speech. In particular I refer to the citations he makes from R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539 and R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115. If a case arises where it is impossible for the board both to make use of information that has not been disclosed to the prisoner and, at the same time, protect the prisoner from a denial of his fundamental right to a fair hearing then the rights of the prisoner have to take precedence, but we have not in my view reached the stage in this case where we can say this has happened. Certainly we cannot say it has happened without considering at least the closed as well as the open judgment of Maurice Kay J. The appellant has chosen to make the issue that which I identified at the outset. He is saying in no circumstances can a [Special Advocate] be engaged at a hearing and this is putting the case too high."

[77]He concluded in paragraph 82:

"The board when confronted with a situation where a [Special Advocate] may have to be appointed must balance carefully the conflicting interests involved. If it does not do so in a way which in the end protects a prisoner's rights to be treated fairly then the Administrative Court can quash its decision. In this way the rule of law is upheld."

[78]Lord Rodger and Lord Carswell agreed that it was not possible to decide in advance whether the full hearing before the Parole Board involving the use of a Special Advocate would meet the requirements of Article 5.4 (see paragraphs 112 at 144 respectively). (6) All of the features that I have so far identified and discussed in paragraphs (1) to (5) above were to be found in some form in the procedures for certification and appeal to SIAC under the 2001 Act. However, in M, A and A (No 2) the Court of Appeal did not have to consider whether the use of a Special Advocate could sufficiently reduce the unfairness of using closed material against a respondent in cases where the court was not coming to its own judgment upon the totality of the evidence, open and closed, but was merely reviewing the lawfulness of the Secretary of State's decision based upon the open and closed material before the Secretary of State at an earlier stage.

[79]Unlike SIAC's functions on appeal under the 2001 Act, the court's role in this hearing under section 3(10) of the Act is to review the lawfulness of the Secretary of State's decisions on or about 1st September 2005 and to decide whether they were flawed on judicial review principles. Although Mr Burnett emphasised (perhaps unusually in submissions made on behalf of the Secretary of State) the breadth of judicial review principles today and the fact that they now required the court to consider issues of proportionality where Convention rights are engaged, the fact remains that, applying judicial review principles, the court is not able to engage in a merits review under section 3(10): see paragraph 28 of the speech of Lord Steyn in R (Daly) v Secretary of State for the Home Department

[2001] 2 AC 532

, [2001] UK HL 26.

[80]Under some procedures there may well be a fine line between the court's ability to engage in a merits review and its ability to review the proportionality of an earlier decision. In particular, this will be the case where the court and the decision taker are both looking at the same, or substantially the same, body of material. In proceedings under section 3 of the Act, the court's inability to reach a decision upon the whole of the evidence available as at the date of the hearing is of real significance because the information available as at the date of the decisions under review will, by definition, not have included(a) the material subsequently provided by the respondent in answer to the allegations, and

(b) at an even later stage, (b) the Special Advocate's response to the closed evidence. In summary, subsections (3, (10) and (11) require the court to review the lawfulness (not the merits) of earlier decisions that will necessarily have been taken on a completely one-sided view of the case.

[81]Looking at the two criteria in subsection 2(1) in turn, it is wholly unrealistic to expect that a respondent will be able, on the basis of the open material, to be able to justify an application for permission to cross-examination the Secretary of State as to whether he had formed a genuine suspicion in his own mind. In practical terms, therefore, any respondent's ability to challenge the Secretary of State's decision under paragraph (a) will be limited to the objective test: whether there were reasonable grounds for the Secretary of State's suspicion at the time when he made

[82]Mr Burnett correctly submitted in his skeleton argument:

"As the assessment of whether the Secretary of State had reasonable grounds to suspect that the Respondent was or had been involved in terrorism-related activity is to be judged only by reference to the information which was before him when he made the control order. It is not necessary to go on to consider what was known to his informant or whether any facts on which he based his suspicion were in fact true or not."

[83]Thus, while the court under section 3(10) can consider, for example, whether there were on the information available to the Secretary of State in September 2005 "obvious lines of inquiry which could have been followed [and which were] ignored" (see paragraph 46 of SIAC's generic determination above) it cannot consider subsequent information or explanation from the respondent and/or the Special Advocate. That fairness requires the court to be able to take full account of the respondent's explanation at some stage in the decision-making process is obvious, as is the need to take account of, for example, potentially exculpatory information identified by the Special Advocate when reviewing the closed material and new closed material and/or submissions by the Special Advocate which might cast a different, and less unfavourable, light, from the respondent's point of view, on the closed material that was available some months earlier. Given the very low standard of proof, and the one-sided picture before the Secretary of State at the relevant time, a respondent has no effective means of challenging the decision under section 2(1)(a).

[84]Criterion (b) in subsection 2(1) is expressed in subjective terms. The question is not what a reasonable person would have thought was necessary in September 2005, but was the Secretary of State entitled to consider that the order and the obligations contained within it were necessary? Simply applying a traditional Wednesbury irrationality test would, in practice, place an impossibly high hurdle in any respondent's path, not least because of the very broad subjective area of judgment to be applied.

[85]While I accept Mr Burnett's submission that a challenge to a decision by the Secretary of State under subsection 2(1)(b) could now be made upon the basis that the Secretary of State's view that the order, or any of the obligations imposed by it were necessary, was a disproportionate interference of the respondent's rights under Article 8.2, the question of proportionality would still have to be answered by reference to the information available to the Secretary of State in September 2005. What is considered to be necessary or proportionate under subsection 2(1)(b) and 1(3) will very much depend on what is reasonably suspected under paragraph (a) in subsection 2(1). The fact that subsequent information from the respondent and/or the Special Advocate shows that all or part of the suspicion under paragraph (a) was exaggerated, or even wholly unfounded, will not affect the proportionality of the paragraph (b) decision under review. Given the inter-relationship between paragraphs (a) and (b) in subsection 2(1), there is no more chance of a respondent being able to successfully challenge the lawfulness of the Secretary of State's subjective view as to what is necessary by way of response to his suspicion under paragraph (a) than there is of him being able to challenge the reasonableness of the suspicion itself. Thus, in practice, a respondent's right to challenge the Secretary of State's decision is devoid of substance. (7) Considered individually, features (1) to (6) of the procedure under the Act would not necessarily render the process as a whole unfair for the purposes of Article 6.1. However, it is the combination and cumulative effect of all of these features which is unique and which results in a procedure which is uniquely unfair. The issue can be tested in this way. On the assumption that the court at a hearing under section 3(10) could be persuaded to consider material coming into existence after the decisions under challenge, including the respondent's answers to the open material and the Special Advocate's submissions in respect of the closed material, what would be the position if the court, having considered all of the material as at the date of the hearing concluded that: (a) there was now no reasonable basis for suspecting that the controlee had been involved in terrorism- related activity, or even that, on the balance of probabilities, he had not been so involved, and/or (b) the control order or all or some of the obligations imposed by it were not necessary for purposes connected with protecting members of the public from a risk of terrorism.

[86]If the Secretary of State's original decision was not legally flawed upon the basis of the information then available to him, these conclusions would not enable the court to quash the order. It would still be under a duty to "decide that the control order is to continue in force": see subsections 3(12) and (13) above. Such an outcome would be an affront to justice. In the absence of a merits review at the section 3(10) stage, the overall procedure is manifestly ineffective and unfair.

[87]Returning to the three matters identified in Bryan, the subject matter of the decision appealed against, the manner in which that decision was arrived at (without any input from the respondent or a Special Advocate), and the content of the dispute between the applicant and the respondent, all of them point to only one conclusion: that nothing short of an ability to re-examine and reach its own conclusions on the merits of the case (applying the higher civil standard of proof if the decision in McCann (above) is followed) would be sufficient to give the court "full jurisdiction" for the purposes of determining the respondent's rights under Article 8 in compliance with Article 6.1 of the Convention. Sections 7 and 10

[88]When confronted with the obvious unfairness that could result if his written submissions (see above) as to the court's limited role under section 3(10) were to be accepted, Mr Burnett responded by submitting that any potential unfairness could be addressed under sections 7 and 10 of the act, the relevant provisions of which are as follows:

"7(1) If while a non-derogating control order is in force the controlled person considers that there has been a change of circumstances affecting the order, he may make an application to the Secretary of State for -- (a) the revocation of the order; or (b) the modification of an obligation imposed by the order; and it shall be the duty of the Secretary of State to consider the application. (2) The Secretary of State may, at any time (whether or not in response to an application by the controlled person) -- (a) revoke a non-derogating control order; (b) relax or remove an obligation imposed by such an order; (c) with the consent of the controlled person, modify the obligations imposed by such an order; or (d) make to the obligations imposed by such an order any modifications which he considers necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism- related activity." "10(3) Where an application is made by the controlled person to the Secretary of State for -- (a) the revocation of a non-derogating control order, or (b) the modification of an obligation imposed by such an order, that person may appeal to the court against any decision by the Secretary of State on the application. (4) The function of the court on an appeal against the renewal of a non-derogating control order, or on an appeal against a decision not to revoke such an order, is to determine whether either or both of the following decisions of the Secretary of State was flawed -- (a) his decision that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for an order imposing obligations on the controlled person to continue in force; (b) his decision that the obligations to be imposed by the renewed order, or (as the case may be) the obligations imposed by the order to which the application for revocation relates, are necessary for purposes connected with preventing or restricting involvement by that person in terrorism-related activity. (5) The function of the court on an appeal against a modification of an obligation imposed by a non-derogating control order, whether on a renewal or otherwise, or on an appeal against a decision not to modify such an obligation, is to determine whether the following decision of the Secretary of State was flawed -- (a) in the case of an appeal against a modification, his decision that the modification is necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism- related activity; and (b) in the case of an appeal against a decision on an application for the modification of an obligation, his decision that the obligation continues to be necessary for that purpose. (6) In determining the matters mentioned in subsections (4) and (5) the court must apply the principles applicable on an application for judicial review. (7) If the court determines on an appeal under this section that a decision of the Secretary of State was flawed, its only powers are -- (a) power to quash the renewal of the order; (b) power to quash one or more obligations imposed by the order; and (c) power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes. (8) In every other case, the court must dismiss the appeal."

[89]Mr Burnett submitted that material which became available after the Secretary of State's decision under section 2(1), whether in the form of the respondent's answer to the open case, or the Special Advocate's submissions in respect of the closed case could found an application for revocation or modification under subsection 7(1) on the basis that such new material amounted to "a change of circumstances affecting the order". If the Secretary of State's response to such new information was a refusal to revoke or modify the order, the controlee could appeal to the court under subsection 10(3) and the court would then be in a position to have regard to the new material in deciding whether or not the Secretary of State's later decision was flawed.

[90]I do not accept the Secretary of State's belated submission that these provisions are capable of remedying the unfairness inherent in a hearing under section 3(10), for the following reasons. First, section 7 is not intended to deal with the respondent's basic contention that (save perhaps on an interim and without notice basis) a control order should never have been made against him because he is not, and was not, involved in terrorism-related activity. There is an obvious difference between an appeal on the basis that a control order should not have been made and an appeal on the basis that a control order having been properly made, it should now be revoked because of a change of circumstances. That difference is reflected in the terms of subsection 10(4).

[91]On an appeal against a refusal to revoke a control order, the court's function is not to consider afresh the Secretary of State's decision under section 2(1)(a) that there were reasonable grounds for suspecting that the respondent was or had been involved in terrorism-related activity, but simply his decisions as to the necessity of making a control order and the obligations to be imposed by it. Mr Burnett submitted that the respondent would be able to use his challenge to the Secretary of State's view as to necessity under criterion (b) as a means of disputing that there were grounds for a reasonable suspicion under criterion (a). If there were no grounds for a reasonable suspicion in the light of the respondent's evidence and/or the Special Advocate's submissions, then it followed that there would be no necessity for an order and/or for the obligations within it. That submission overlooks the fact that the Act defines the court's functions on a hearing under section 3(10) and on an appeal under section 10(4) with great care. Each enactment identifies precisely the decisions which may be reviewed by the court. If Parliament had intended that the court should be able to consider a respondent's challenge to the Secretary of State's decision under the first limb of section 2(1) in an appeal under section 10(4) it would have said so. The omission was clearly deliberate.

[92]It will be noted that section 10(4) deals with the court's functions on appeal against both a renewal of a non- derogating control order and a decision not to revoke the order. The Secretary of State's power to renew a non- derogating order is contained in subsection 2(6), which provides:

"The Secretary of State may renew a non-derogating control order (with or without modifications) for a period of 12 months if he - (a) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for an order imposing obligations on the controlled person to continue in force; and (b) considers that the obligations to be imposed by the renewed order are necessary for purposes connected with preventing or restricting involvement by that person in terrorism-related activity."

[93]Thus, unsurprisingly, the Secretary of State does not have to revisit the question originally posed in subsection 2(1)(a). If the obligations imposed by the control order have been effective, the controlee will have been prevented from continuing to be involved in terrorism-related activity. There will, however, still be reasonable grounds for having suspected that he had been involved in terrorism-related activity in the past (prior to the imposition of the control order) and the only question on renewal will therefore be whether, 12 months further on, there is still a need to impose obligations upon him.

[94]In summary, the function of an appeal under section 10(4) is not to consider a controlee's contention that he was never involved in terrorism-related activity. It will also be noted that section 7 deals with the revocation or modification of both non-derogating and derogating control orders. In respect of the latter, an application may be made at any time to the court by either the Secretary of State or the controlee. In such cases the court will have considered whether the criteria in subsection 4(7) are met as at the date of the hearing. If the court was not satisfied on the balance of probabilities that the respondent was involved in terrorism-related activity, it will not have confirmed the order. If it was so satisfied, then there will be no need to revisit that issue under section 10, but sub-section 7(1) will enable any other change of circumstances after the original hearing to be considered.

[95]If these constraints imposed upon section 10(4) are ignored, I would accept the submission that in the absence of any other procedural opportunity to have his side of the case considered, the words "change of circumstances" could be construed so as to include post-decision material emanating from the respondent and/or the Special Advocate. Subsection 7(1) places the Secretary of State under a duty to consider an application for revocation or modification based upon such material. While the Secretary of State is not expressly required to give reasons if he refuses to revoke or modify the order, the court would imply an obligation to give reasons as a matter of fairness. However, no timetable is imposed upon the Secretary of State's consideration of an application under subsection 7(1) and the controlee may not appeal to the court until he has received the Secretary of State's decision: see subsection 10(3). A refusal to make a decision or an unlawful delay in making a decision could be the subject of an application by the controlee for permission to apply for a mandatory order in judicial review proceedings.

[96]Section 11(1) of the Act provides that "control order decisions" (which include decisions made by the Secretary of State in the exercise or performance of any power or duty under section 7(1), see subsection 11(7)) are not to be questioned in any legal proceedings other than proceedings in the court, but it is doubtful whether this would bar judicial review proceedings challenging a failure by reason of inexcusable delay to make a decision, thereby preventing the making of an appeal under section 10(3). However long such a process might take, the controlee's rights under the Convention (under Article 8 in the present case) would continue to be affected by the obligations imposed by the control order.

[97]There are, however, further practical difficulties in any attempts to use the section 7 procedure to in effect review the lawfulness of the control order upon the basis of all the material available to the court, as opposed to the material that was available to the Secretary of State when the order was made. Assuming that the exercise was permissible under subsections 10(4) and (5), the court would still be reviewing the lawfulness of an earlier decision (the Secretary of State's refusal to revoke the order) upon the basis of the material that was available as at that date, rather than looking at the whole of the evidence as at the date of the hearing. That this is not simply a procedural quibble is demonstrated by the fact that the decision under review in this hearing was made more than six months ago. Delays of this kind are inevitable in proceedings where a Special Advocate has to be instructed to examine the closed material and there has to be an opportunity for the court to decide whether any of the closed material, or a summary of it should be disclosed to the respondent.

[98]The role of the Special Advocate in control order proceedings presents a further and more fundamental difficulty. Section 7(1) enables the controlee to apply for revocation or modification if he considers that there has been a change of circumstances affecting the order. But the controlee will not know the full picture. In particular, he will not know whether anything in the Special Advocate's examination of the closed material might, either of itself or in conjunction with the material available to him, be described as "a change of circumstances." Once the Special Advocate has seen the closed material, he may not communicate with the respondent or his legal representatives unless the court so directs: see CPR 76.25(2) and (4). Moreover, the Special Advocate's role under CPR 76.24 in respect of a hearing under section 3(10) is to examine (by way of oral and/or written submissions and cross-examination if appropriate) the lawfulness of the Secretary of State's decisions under section 2(1) upon the basis of the closed material then available to the Secretary of State. While the special advocate can explore, for example, whether the closed material placed before the Secretary of State ignored any lines of inquiry which were obvious at that time and which should have been pursued (see paragraph 46 of SIAC's generic judgment above), he is not required to examine what was actually known to the Secretary of State's informant, the Security Service, or whether any of the closed material on which the Secretary of State based his suspicion was in fact true: see Lord Hope's speech in O'Hara above. In particular, the Special Advocate does not have a roving commission to ascertain whether there might be new exculpatory material, or whether, for example, viewed in the light of the respondent's explanations which were not available to the Secretary of State, a different interpretation might be given to the closed material.

[99]In brief, it is no part of the Special Advocate's role, when instructed for the purpose of a hearing under section 3 (10), to ferret about in the closed material in order to discover whether there might be any "changed circumstances" which might, if they could be communicated to the respondent pursuant to a direction of the court, then be used as the basis of an application by the respondent for revocation of the order under section 7(1).

[100]On the assumption that a fair process can be devised, even though the court in control order cases has to rely on closed material which is not disclosed to a respondent, it is essential that the court is put in a position where it is able to consider the up-to-date position on the open evidence together with the up-to-date position on the closed evidence and thereby reach its own conclusion on the merits on the basis of the totality of the evidence. Only then would it be able to make due allowance for such factors as, for example, the respondent's inability to cross-examine those witnesses who gave closed evidence and the Special Advocate's inability to obtain the respondent's comments upon that closed evidence: see Roberts (above).

[101]For all of these reasons, sections 7 and 10 are not the answer to the unfairness that is inherent in a hearing under section 3(10). For the sake of completeness, I should mention the fact that, following the conclusion of the hearing, I was supplied with a copy of the judgment of Ouseley J in Abu Rideh, dated 11th May 2005, an appeal against the Secretary of State's decision not to modify a control order. Ouseley J did not have to consider the issues that have been raised in these proceedings and his judgment in that case does not, in my view, affect in any way the conclusions that I have set out above. Overview

[102]Although it has been necessary to consider the question whether section 3(10) of the Act provides sufficient jurisdictional control for the purposes of Article 6.1 of the Convention by way of a step-by-step analysis of the factors mentioned in Bryan, it is important to remember that, as Lord Slynn said in paragraph 45 of his speech in Alconbury, the test is not a mechanical one; it depends on all the circumstances.

[103]Standing back and looking at the overall picture, there can be only one conclusion. To say that the Act does not give the respondent in this case, against whom a non-derogating control order has been made by the Secretary of State, a fair hearing in the determination of his rights under

Article 8 of the Convention

would be an understatement. The court would be failing in its duty under the 1998 Act, a duty imposed upon the court by Parliament, if it did not say, loud and clear, that the procedure under the Act whereby the court merely reviews the lawfulness of the Secretary of State's decision to make the order upon the basis of the material available to him at that earlier stage are conspicuously unfair. The thin veneer of legality which is sought to be applied by section 3 of the Act cannot disguise the reality. That controlees' rights under the Convention are being determined not by an independent court in compliance with Article 6.1, but by executive decision-making, untrammelled by any prospect of effective judicial supervision. Conclusions

[104]I am unable to envisage any circumstances in which, realistically, it would have been possible for the court to conclude that the Secretary of State's decisions on or about 1st September 2005 were legally flawed upon the basis of the one-sided information then available to him. It follows that I must decide that the control order is to continue in force. However, for the reasons set out above, I am satisfied that the procedures under section 3 of the Act relating to the supervision of the court of non-derogating control orders made by the Secretary of State are incompatible with the respondent's right to a fair hearing under Article 6.1, and I will make a declaration of incompatibility to that effect under section 4 of the 1998 Act.

[105]MR BAJWA: Can I raise two matters, my Lord.

[106]MR JUSTICE SULLIVAN: Yes. Could I just say, Mr Bajwa, that I did receive via my clerk a telephone message that there was a question, I think from a newspaper, as to the basis of the anonymity and whether it could be challenged. The basis of the anonymity, of course, is the earlier orders made by Ouseley J. There has been no formal application before me to challenge that anonymity. If anyone wanted to make that application, they could do so in the normal way and, obviously, I would hear representations from them and representations from any other interested parties, including you, but as yet there has been no such application, and ten past four on the last day of term is not the time to make it, if anyone is thinking of trying!

[107]MR BAJWA: Anonymity is very much part of the territory of the Prevention of Terrorism Act.

MR JUSTICE SULLIVAN: Yes.

[109]MR BAJWA: The second matter we raise is contained in the concluding paragraph of your Lordship's judgment. May I just read that?

MR JUSTICE SULLIVAN: Of course.

[111]MR BAJWA:

"It follows that I must decide that the control order is to continue in force."

[112]We had understood that your Lordship's judgment was going to be confined to the issue of compatibility, which was the mainstay of the argument presented to your Lordship over the course of the hearing last week. We take no issue with this indication, that your Lordship has effectively determined section 3(10) in the applicant's favour. We take no issue with that because it is not a matter that we could ever suggest that we could realistically challenge. If that be right, and the proceedings then, unless, of course, a respondent ever makes an application under section 7, that is a change of circumstances application, that would bring the proceedings to an end in this court.

[113]In those circumstances, I am asked to make an application to your Lordship that the applicant pay the respondent's costs. He is receiving legal services under public funding, but we are informed by those who provide that funding that it makes a difference to budgetary considerations that they should have that order made, that the applicant pay the respondent's costs, even though, of course, ultimately we are talking about public funds.

[114]MR JUSTICE SULLIVAN: Yes. Let us see what Mr Eicke says about that. Yes, Mr Eicke.

[115]MR EICKE: My Lord, just in relation to the costs application, this is one of the situations where I have to accept that my learned friend for the respondent won the argument but the order continues in force and the Secretary of State, by operation of the Human Rights Act, won the day, if I can call it that.

MR JUSTICE SULLIVAN: Yes, that is right.

[117]MR EICKE: We would respectfully say that the appropriate order would be no order as to costs to take account of those circumstances, my Lord.

[118]MR JUSTICE SULLIVAN: Yes. Unless there is anything else to say, Mr Bajwa, I am bound to say, it does seem to me, with the format of the Act, that if you erect a structure whereby, frankly, people in the position of your client do not really have a chance, the Secretary of State is always going to win. You have substantially won the argument, certainly.

[119]I suppose your point is that the entirety of the argument was on whether that position in which your client found himself was compatible with his rights under the Convention.

[120]MR BAJWA: Your Lordship has it exactly. Our entire argument was restricted to a compatibility one, and that took up the four days of the hearing last week.

MR JUSTICE SULLIVAN: It did.

[122]MR BAJWA: In those circumstances, my Lord, it is fair to say that the respondent was entirely successful.

MR JUSTICE SULLIVAN: I am more than happy, Mr Eicke, to give you a last bite of the cherry on that.

[124]MR EICKE: My Lord, there is little I can say to that, bar the fact that it was run as a preliminary issue, but I have said what I can.

MR JUSTICE SULLIVAN: Yes, thank you very much.

[126]In my judgment, in the somewhat peculiar circumstances of this case, even though the respondent has technically lost in substance, the respondent has succeeded because the respondent's case has all along been, in summary, that because there was never any reasonable prospect of him succeeding under this procedure, the procedure was incompatible with the Convention. In my judgment, therefore, the fair order, since those arguments have succeeded, is that the Secretary of State should pay the respondent's costs. Those costs are to be the subject of detailed assessment if not otherwise agreed.

[127]MR EICKE: My Lord, that leaves two issues. One is an application for permission to appeal, mainly, of course, on the issue of public importance.

[128]MR JUSTICE SULLIVAN: So far as the latter, Mr Eicke, you could always try to persuade me to give you permission to appeal on the basis that you had a real prospect of success, but at the moment I am not inclined to give you permission on that ground. I would be inclined, however, subject to anything Mr Bajwa or, indeed, Miss Farbey said, to give you permission on the other compelling reason; that is to say, it is very important to get the Court of Appeal's view on the lawfulness of this procedure.

[129]MR BAJWA: I do not intend to change your Lordship's mind about that.

[130]MR JUSTICE SULLIVAN: I give you permission, then, but I do so expressly on the second limb. The other compelling circumstance is that it is important to get the Court of Appeal's view.

[131]MR EICKE: I am grateful, my Lord. That leaves one technical matter, that we would ask for a transcript of your Lordship's judgment as soon as possible because this obviously has an impact on a number of proceedings which are pending and the possibility of appealing it to the Court of Appeal.

[132]MR JUSTICE SULLIVAN: We have actually got the Easter holidays coming up and I do not think it is necessary for the formal expedition of it. You should get the transcript at the end of the first week of term. If you want any provision for time to appeal, Notice of Appeal, say, 14 days after receipt of the transcript, that is the sort of provision I would be more than happy to make.

[133]MR EICKE: My Lord, yes. I would be grateful if that could be done.

[134]MR JUSTICE SULLIVAN: Yes, it seems to me that is sensible. There is absolutely no point in trying to settle grounds before you have actually had the details because there is a lot of detail in the transcript. So I am not going to expedite the transcript. I will endeavour to turn it round as fast as I can. The period within which you may appeal to the Court of Appeal, put in your Notice of Appeal, is 14 days from receipt of the transcript, rather than from today.

[135]MR EICKE: I am grateful, my Lord.

[136]MR JUSTICE SULLIVAN: The actual terms of the declaration of incompatibility, I was not thinking that at quarter past four today was the best time to try to sit around and sort those out. I could make myself available tomorrow to approve a draft, if it was agreed by the parties as to the precise terms of the declaration, but otherwise I am open to submissions as to what the best way forward is on the precise drafting of the declaration.

[137]MR EICKE: My Lord, could I just take instructions? (Pause.) My Lord, attempts could be made to agree the order, but in the light of the fact that today is the last day of term, and your Lordship's judgment was very clear as to what the difficulties were, our submission would be that, in a sense, could wait until the transcript of your Lordship's judgment has been supplied and possibly agreed between the parties and approved at the beginning of next term.

[138]MR JUSTICE SULLIVAN: So when I approve the final version of the judgment, with luck, by then you will have got your heads together and sorted out, one hopes, either an agreed declaration of incompatibility or reasons why you cannot agree, and leave it to me to sort it out on the papers.

[139]MR EICKE: My Lord, we could certainly try and get an attempt at an order to you in the course of the first week of term, if that then would fit in with your timetable for approval of the judgment.

[140]MR JUSTICE SULLIVAN: Yes, I think that is the best way to do it, rather than to try to do drafting of the hoof. If it is felt that the judgment itself is sufficiently clear, then that is a matter for you. It seems to me we have got to have a form of words.

[141]MR EICKE: My Lord, yes.

MR JUSTICE SULLIVAN: Is there any more for any more?

[143]MR EICKE: Not from us, my Lord, no.

[144]MR BAJWA: My Lord, no.

order

derogating control orders, which impose obligations which are incompatible with the controlee's right to liberty under

Article 5 of the European Convention on Human Rights

("the Convention") which can be made when there has been a designated derogation within section 14 of the Human Rights Act 1998 ("the 1998 Act"), and non-derogating control orders. The former are made by the court, the latter by the Secretary of State: see section 1(2) of the Act. Order: Implementation of Care Plan)

[2002] 2 AC 291

[2002] UK HL 10, at paragraphs 70 and 71. order: see Lord Hope's speech in O'Hara above. While "the whole surrounding circumstances" must be considered, they will be the surrounding circumstances as they were at the time when the suspicion was formed in the Secretary of State's mind.

MB, Re [2006] EWHC 1000 (Admin)

Introduction

(a) and (b) in subsection 2(1) the order explained that:

MR JUSTICE SULLIVAN: Yes.

MR JUSTICE SULLIVAN: Of course.

MR JUSTICE SULLIVAN: Yes, that is right.

MR JUSTICE SULLIVAN: It did.

MR JUSTICE SULLIVAN: I am more than happy, Mr Eicke, to give you a last bite of the cherry on that.

MR JUSTICE SULLIVAN: Yes, thank you very much.

MR JUSTICE SULLIVAN: Is there any more for any more?

order

Cited in 3 later judgments