Secretary of State for the Home Department, R (on the application of) v AH [2008] EWHC 1045 (Admin)

[2008] EWHC 1045 (Admin)Case No PTA/8/2006Case No PTA/6/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 23rd April 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OF SECRETARY OF STATE FOR THE HOME DEPARTMENTClaimantv
Between
AHDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr James Eady QC and Ms Kate Grange (instructed by the Treasury Solicitor) appeared for ClaimantMr Keir Starmer QC and Ms Stephanie Harrison (instructed by Messrs Tyndallwoods Solicitors) appeared for DefendantMr Andrew Nicol QC and Mr Justin Cole (instructed by the Special Advocates Support Unit) appeared as Special Advocates for AH
J U D G M E N T
[1]MR JUSTICE MITTING: As part of his case, AH has produced a lengthy and detailed statement setting out 12 meetings which he says took place in Norwich with members of the Security Service upon which he relies to demonstrate that the risk, if any, that he poses to national security is either non-existent or much diminished. No-one has sought to prevent him from setting out those details and I make it clear that I do not prevent him from giving evidence about them and advancing his case in that respect in any way that he sees fit, save in the way that I am now about to consider.[2]Mr Starmer QC, for AH, submits that the Secretary of State's policy of never confirming and never denying the occurrence of such meetings should be waived in this case to permit him to question the Security Service witness about the claimed meetings. The NCND policy, as it is known, is not inflexible. It is common ground that it was accurately described in the affidavit of Sir Joseph Pilling, to which reference was made in the application of Freddie Scappaticci [2003] NIQB 56, an application for judicial review of the Secretary of State's refusal to waive the policy which was dismissed by Lord Carswell in his capacity as Lord Chief Justice of Northern Ireland. In paragraph 15 of his judgment, he set out the compelling reasons for the existence and maintenance of the policy, concluding that:
"There is in my judgment substantial force in these propositions and they form powerful reasons for maintaining the strict NCND policy."
I adopt, without setting them out, what he says in the remainder of that paragraph. The underlying policy reasons are summarised in the judgment of Brooke LJ in A v Secretary of State for the Home Department [2003] 1 All ER 816, paragraph 87, cited in paragraph 18 of the judgment of Lord Carswell.[3]I am required by CPR Part 76.2(2) to ensure that information is not disclosed contrary to the public interest in these proceedings. That obligation is subject to the controlled person's Article 6 rights and also to CPR 76.29, the upshot of which is that in any instance in which the Secretary of State relies upon closed material and it would be contrary to the public interest for it to be put into the public domain I may invite the Secretary of State, if ruling against her objection, to consider whether or not to withdraw the material and place no reliance upon it. As the speeches of the majority in Secretary of State for the Home Department v MB [2007] UKHL 46 show, that option may have to be adopted in cases where reliance on closed material would infringe a controlled person's right to a fair hearing under Article 6. Lord Bingham put the matter at its highest, as far as their Lordships were concerned, in paragraph 35 of his speech at page 700H to 701C, in which he observed:
"But, as Lord Woolf CJ observed in Roberts, 'The use of an SAA is, however, never a panacea for the grave disadvantages of a person affected not being aware of the case against him.' The reason is obvious. In any ordinary case, a client instructs his advocate what his defence is to the charges made against him, briefs the advocate on the weaknesses and vulnerability of the adverse witnesses, and indicates what evidence is available by way of rebuttal. This is a process which it may be impossible to adopt if the controlled person does not know the allegations made against him and cannot therefore give meaningful instructions, and the special advocate, once he knows what the allegations are, cannot tell the controlled person or seek instructions without permission, which in practice (as I understand) is not given. 'Grave disadvantage' is not, I think, an exaggerated description of the controlled person's position where such circumstances obtain."
[4]Article 6, put at its highest, requires that the controlled person knows sufficient of the Secretary of State's case to be able to give effective instructions to his advocates or the special advocates to answer it. Article 6 does not, in my judgment, require the Secretary of State to renounce in this case a policy established for sound reasons. She is not relying on the meetings, if they occurred, or their contents, if they occurred. AH is not in any way inhibited from advancing his own case about the meetings if they occurred. He is not in any way inhibited from giving instructions to his own advocates or through them and his own materials, informing the special advocates of his case about the meetings if they occurred.[5]Accordingly, in my judgment Article 6 cannot in principle, and certainly does not in practice, require me to direct the Secretary of State to renounce or depart from the policy. It follows therefore that I would permit witness W, the Security Service witness, to decline to answer any questions about the claimed meetings so that Mr Starmer, as responsible advocate, would serve no purpose by asking questions. I am not formally going to prevent him from doing so but if he were to do so I would indicate to the witness that she need not answer the questions and I anticipate that in those circumstances he would not press the point, at least at this level.[6]MR STARMER: My Lord, I can indicate that I obviously would not ask any of those questions. I will treat the ruling as inviting the answer that there need be no answer to all of them and proceed on that basis.[7]MR JUSTICE MITTING: Certainly, and by taking that sensible course I am not in any way inhibiting you from challenging the ruling that I have made, should you wish to do so in another place.[8]MR STARMER: Yes, I am grateful.

Cited in 1 later judgment