Secret Control Order Hearings: A Qualified Victory for the Right to a Fair Trial

Published date01 October 2009
Date01 October 2009
DOIhttp://doi.org/10.1350/jcla.2009.73.5.589
Subject MatterHouse of Lords
JCL 73(5)..House of Lords .. Page389 House of Lords
Secret Control Order Hearings: a Qualified Victory for the
Right to a Fair Trial
Secretary of State for the Home Department v F; E v Secretary of State for the
Home Department; Secretary of State for the Home Department v N [2009]
UKHL 28
Keywords
Secret evidence; Closed hearing; Disclosure; Terrorism
The three appellant terrorist suspects had been subjected to non-
derogating control orders pursuant to s. 2 of the Prevention of Terrorism
Act 2005 (PTA 2005). Section 3(10) of the PTA 2005 provides that
the function of the court is to determine whether the decision of the
Secretary of State to make the control order was flawed with reference
to established principles of judicial review. Part 76 of the Civil Procedure
Rules (CPR) gives effect to this mechanism, with Part III of the Rules
allowing for exclusion of a relevant person and his legal representative
from a hearing to ensure that information is not disclosed that is
contrary to the public interest (for reasons that include national secur-
ity). Provision is made in CPR rr. 76.23–76.24 for the appointment of a
special advocate, or security cleared counsel, whose function is to repre-
sent the interests of a relevant party, but who may only communicate
with the relevant party before closed material is served upon him, save
with permission of the court.
In conjoined appeals, the House of Lords was required to consider
whether the control order regime hearings satisfied the requirements of
the fundamental right to a fair trial, as provided inter alia by Article 6
of the European Convention on Human Rights (ECHR). In appealing
against a decision of the Court of Appeal, the controlees contended that
their rights had been violated, since the judge, in a closed hearing, had
received material that had not been disclosed to them.
HELD, ALLOWING THE APPEALS, Lord Phillips of Worth Matravers, in
giving the leading judgment of the appellate committee, applied the
decision of the Grand Chamber of the European Court of Human Rights
in A v United Kingdom (3455/05) 26 BHRC 1. This stated that a controlee
had to be given sufficient information about the allegations against him
to enable him to give effective instructions to his special advocate in
relation to those allegations (at [59], per Lord Phillips). It had been
recognised by the Strasbourg court that where the interests of national
security are concerned, it might be acceptable not to disclose the source
of evidence that establishes the grounds of suspecting that a person has
been involved in terrorism-related activities. Lord Phillips thus con-
cluded that a fair trial could ensue where an individual had sufficient
information to give effective instructions to counsel, even where the
The Journal of Criminal Law (2009) 73 JCL 389–393
389
doi:10.1350/jcla.2009.73.5.589

The Journal of Criminal Law
controlee was not provided with the detail or the sources of the evidence
forming the basis of the allegations.
Where the material available to a controlee consisted of...

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