CASES: Special Advocates, Control Orders and the Right to a Fair Trial

Publication Date01 Sep 2010
AuthorAileen Kavanagh
Special Advocates, Control Orders and the Right to a
Fair Trial
Aileen Kavanagh
In Secretary of State forthe Home Department vAF (No 3), the House of Lords decided that Article 6
ECHR requires a ‘core irreducible minimum’of procedural fairness such that‘the controlled per-
son must be given su⁄cient information about the allegations against him to give e¡ective
instructions to the Special Advocate’. This case-note wil l discuss the challe nges facing Special
Advocates i n control order proceedings and the impact AF may have on the measure of proce-
dural fairness owed to individuals in closed proceedings. It will also address the judicial use of
sections 2 and 3 of the Human Rights Act1998 in arriving at the outcome in AF.
Closed proceedings, in which a court or tribunal receives evidence and submis-
sions not disclosed to the person most directly a¡ected, are now a common fea-
ture of cases involving national security.
Such proceedings are an exceptionto the
general rule that a person
must havethe r ight to see all the i nformation put before the judge, to comment on
it, to challenge it and if needs be to combat it, and to try to establish by contrary
evidence that it is wrong.It can notbe with held from him i nwhole or in part.
Lord Denning captured the fundamental importance of this principle when he
observed that if ‘the right to be heard is to be a real right wh ich is worth anything,
it must carry with it a right i n the accused man to know the case which is made
against him’.
Closed proceedings therefore depart from the paradigm of a fair,
adversarial legal hearing of a dispute in which, so far as is practicable, the parties
are on an equal footing in relationto evidence and cross-examination of identi¢-
able witnesses in full view of the parties and the judge.
St Edmund Hall, University of Oxford. Part of this article was presented at the JC Smith Workshop
on the Human Rights Act1998at the University of Nottinghamon 26 February 2010 and ata semi nar
at the Universityof Oxford entitled ‘Special Advocates, Control Orders and National Security’ on 9
June 2010. I bene¢ted greatly from the feedbackI received at both of these seminars.
1 M. Chamberlain, ‘Special Advocates and procedural fairness in closed proceedings’ (2009) CJQ
2O⁄cialSolicitor vK[1963] Ch 381, per Upjohn LJ.
3Kanda vGovernmentofMalaya [1962] AC 322, 337;Att-Gen vRya n [1980] AC 718; HadmorProductions
Ltd vHamilton [1982] 2 WLR 322; s ee als o Roberts vParole Board [2005] UKHL 45, where Lord
Steyn referred to it as‘a fundamental right of due process’ at [93]; Al Rawi vThe Security Service,
SecretIntelligence Service,TheAttorneyGeneral,The Foreign and CommonwealthO⁄ceand the Home O⁄ce
[2009] EWHC2959 at [14].
4 D. Bonner, Executive Measures,Terrorism and National Security: Have the Rules of the Game Changed?
(Aldershot: Ashgate,2008) 276.
Special Advocates, Control Orders a nd the Right to a Fair Trial
836 r2010The Author. Journal Compilation r2010The Modern Law ReviewLimited.
(2010)73(5) 824^857
With the heightened security concerns post 9/11, this paradigm has been put
under severe pressure. Rather than relying on a criminal justice approach to tack-
ling the terrorist threat from Al Qaeda, the Labour Government resorted instead
to an intelligence-led approach which relied on preventive mechanisms such as
control orders.
Thus, the Prevention of Terrorism Act 2005 (PTA) empowers
the Secretary of State to impose ‘restrictions’ on the liberty of individuals if he
has reasonable grounds for suspecting that theyare or have been involved in ter-
rorism related activity
and he considers it necessary to make such an order to
protect the public from a riskof terrorism.
It is widelyagreed thatthe impact of control orders on controlees, their families
and communitiesis severe.
In Secretary of State for the Home Department vAF (No3)
Lord Hope noted that at the extreme end of the spectrum control
orders are ‘not far short o f house ar rest’.
They have been described by others as
‘internment by a nother name’.
Yet despite their ‘devastating impact’
on indivi-
duals, control orders can be imposed by the Secretary of State on a low standard
of proof - merely reasonable grounds for suspicion rather than proof on the
civil standard.
Section 3 PTA provides forHigh Court supervision of Minister-
ial decisions to impose control orders where the court’s role is to determine
whether the substantive conditions in section 2 PTA are met. But since the Gov-
ernment’s case against the potential controlee may be based on secret or ‘closed’
evidence which is not disclosed to the controlee, the question naturally arose as
to whether such hearings complied with the right to a fair trial.
The solution
adopted in the PTAto mitigate the unfairness of such closed proceedings was to
appoint security-clear lawyers called Special Advocates to represent the interests
of the a¡ected party.
5 Though the Government’s stated position since 9/11 has been that it favours a criminal justice
approach and thatpreventative measures like controlorders are only a last resort, see K. Starmer,
‘Setting the Record Straight: Human Rights in an Era of International Terrorism’ [2007]
EHRLR 128; L. Zedner,‘Preventive Justice or Pre-Punishment? The Case of Control Orders’
(2007) 60 CLP. Foran hi storicalperspective which shows that Executivereliance on preventative
measures has been a common wayof cou ntering terrorism throughout the 20
century, see Bon-
ner, ibid at 3,22.
6 PTA2005, s 2(1)(a).
7 PTA2005, s 2(1)(b).
8 Joint Committee on Human Rights, Counter-Terrorism Policyand Human Rights (SixteenthReport):
Annual Renewal of Control OrdersL egislation 2010HL Paper 64, HC 395, 23 February 2010 (JCHR
Report)14^16; K. Ewing and J.Tham,‘TheContinui ng Futility of the Human RightsAct’ [2008]
PL 668,689; Zedner, n 5 above,179^183; Bonner, n 4 above, 232^246.
9Secretary of State forthe Home Department vAF (No 3)[2009] UKHL 28.
10 ibid at [77].
11 Bonner, n 4 above, 22.
12 JCHR Report,n 8 above,14.
13 See Assessing Damage, UrgingAction, Report of the Eminent Jurists Panelof Terrorism, Counter-
terrorism and Human Rights,17February 200 9 (InternationalCommission of Jurists), 120.
14 For a detailed examination of co ntrolorder hearings, i ncluding the typical nature of ‘open’and
closed’material, see Bonner, n 4 above,277.
15 For an account of the wide array of procedural regimes in which Special Advocates nowoperate,
see House of Commons Constitutional A¡airs Committee Seventh Report of Session 2004^05,
The Operation of the Special Immigration AppealsCommission (SIAC)and the Use of Special Advocates
HC 323 (London:TSO) (CAC)at [50]^[51];T.Endicott, Administrative Law (Oxford: OUP, 2009)
Aileen Kavanagh
r2010The Author. Journal Compilationr2010 The Modern Law ReviewLimited.
(2010)73(5) 824^857

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