Secretary of State for the Home Department v an (Proceedings under the Prevention of Terrorism Act 2005)
| Jurisdiction | England & Wales |
| Judge | Mr Justice MITTING |
| Judgment Date | 29 February 2008 |
| Neutral Citation | [2008] EWHC 372 (Admin) |
| Date | 29 February 2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: PTA/8/2007 |
[2008] EWHC 372 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mitting
Case No: PTA/8/2007
Mr Robin Tam QC & Mr Nicholas Moss (instructed by The Treasury Solicitor ) for the Applicant
Miss Frances Webber (instructed by BIRNBERG PEIRCE & PARTNERS) for the Respondent
Mr Andrew Nicol QC & Mr Paul Bowen (instructed by The Treasury Solicitor Special Advocate Support Office) as Special Advocates
>Approved Judgment
Hearing dates: 5,6,7 & 8 February 2008
The open case of the Secretary of State against AN is as follows:
i) He has an intention to travel abroad for terrorism related purposes (first open statement paragraphs 56)
ii) He attempted to abscond from his control order on 9 September 2007 (second open statement paragraphs 5 – 11)
iii) He has acted as a link between London based extremistsAl-Qaeda linked overseas extremists (third open statement paragraphs 23)
iv) He has been involved in attack planning, likely to have taken place in the Middle East, to which he has travelled repeatedly (third open statement paragraph 4)
v) He has facilitated extremists to participate in terrorist related activities overseas (third open statement paragraph 5)
vi) He has openly advocated support for violent extremist activities (third open statement paragraph 6).
The Secretary of State now also proposes to identify three London based extremists, Faisal Siddiqui, Saqib AhmadKhalid Kelay as contacts of ANis prepared to reveal a redacted summary of surveillance of himAhmad on 10 May 2007. She is also prepared to disclose that the facilitation of extremists to participate in terrorist activities overseas “included in Iraq”. She is, as of now, unwilling to make further disclosure.
For the reasons set out in the closed judgment on disclosure, I am satisfied that
i) AN has not had disclosed to him a substantial part of the grounds for suspecting that he has been involved in terrorism related activitythat, without further disclosure, he personally will not be in a position to meet those aspects of her case
ii) Disclosure of that material would be contrary to the public interest for one or more of the reasons identified in CPR Part 76.1 (4).
Miss Webber submits that, unless the Secretary of State makes further disclosure of the grounds upon which she relies, AN's right to a fair trial of these issues under Article 6 (i) ECHR will be infringed. Accordingly, she seeks an order that the Secretary of State elects whether or not to make further disclosure or to withdraw this aspect of her case.
This case raises in acute form the issues considered in principle by the House of Lords in Secretary of State for the Home Department v MB & Others [2007] UKHL 46. The principle is clear: the Secretary of State may not rely on material which is not disclosed to the controlled person when to permit reliance on it without disclosure would be incompatible with his right to a fair trial: per Lady Hale at paragraphs 7072; per Lord Bingham at paragraph 44, per Lord Carswell at paragraph 84per Lord Brown at 92. The practical guidance given upon the application of that principle is, however, a good deal less clear.
In paragraph 35, Lord Bingham explained the limits upon the effectiveness of the role of special advocates: they could on occasion demonstrate “that evidence relied on against a controlled person is tainted, unreliable or self-contradictory”; but their use was not a panacea for the “grave disadvantages” of a person affected not being aware of the case against him. He explained why:
“In any ordinary case, a client instructs his advocate what his defence is to the charges made against him, briefs the advocate on the weaknessesvulnerability of the adverse witnesses,indicates what evidence is available by way of rebuttal. This is a process which it may...
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