Secretary of State for the Home Department v AF
| Jurisdiction | England & Wales |
| Judge | Sir Anthony Clarke MR and Waller LJ, V-P |
| Judgment Date | 17 October 2008 |
| Neutral Citation | [2008] EWCA Civ 1148 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 October 2008 |
| Docket Number | Case No: T1/2008/0858, 9501, 9502, & 9503 |
[2008] EWCA Civ 1148
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Hon Mr Justice Stanley Burnton (AF)
The Hon Mr Justice Sullivan (AM)
The Hon Mr Justice Mitting (AN)
The Hon Mr Justice Silber (AE)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Sir Anthony Clarke Mr
Lord Justice Waller V-P and
Lord Justice Sedley
Case No: T1/2008/0858, 9501, 9502, & 9503
Philip Sales QC, Nicholas Moss, Cecilia Ivimy, Andrew O'Connor and Kate Grange (instructed by the Treasury Solicitor) for the Secretary of State for the Home Department
David Pannick QC, Timothy Otty QC, Zubair Ahmad and Tom Hickman (instructed by Middleweeks) for AF
Timothy Otty QC and Kate Markus (instructed by Messrs Arani & Co for AM
Tim Owen QC and Frances Webber (instructed by Messrs Birnberg Peirce) for AN
Owen Davies QC and Ali Nanseen Bajwa (instructed by Messrs Chambers Solicitors) for AE
Hugo Keith and Jeremy Johnson, special advocates for AF
Mohammed Khamisa QC and Shaheen Rahman special advocates for AM
Andrew Nicol QC and Paul Bowen special advocates for AN
Michael Supperstone QC and Tom de la Mare, special advocates for AE
Michael Fordham QC, Shaheed Fatima and Tom Richards for JUSTICE, intervening and providing written submissions
Hearing dates: 14, 15, 16, 21, 22 and 23 July 2008
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Introduction
AE, AF, AM and AN are all the subject of non-derogating control orders. The Secretary of State for the Home Department ('the SSHD') is the appellant in the cases of AF, AM and AN, while AE is the appellant in the other appeal. The principal issue in all these appeals is what principles govern the question whether, in the light of the decision of the House of Lords in SSHD v MB and AF [2007] UKHL 46, [2008] AC 1 AC 440, the controlee has had a fair hearing compatible with article 6 of the European Convention on Human Rights ('the Convention') of the issue whether there are reasonable grounds for suspecting that he is or has been involved in terrorism-related activity.
Each of the appeals is an appeal from a different judge. AE appeals from a decision of Silber J in which he held that AE had had a fair hearing. The SSHD appeals from decisions of Stanley Burnton J in AF, Sullivan J in AM and Mitting J in AN. All those decisions were in favour of the controlee. The judge at first instance gave permission to appeal in all the cases.
The argument ranged far and wide. We will consider first, so far as necessary, the statutory framework, secondly the general principles deriving from the decision of the House of Lords in MB and AF, thirdly the application of those principles in each case and finally a number of particular issues which are specific to particular appeals.
The statutory framework
The control order regime has now been the subject of a number of decisions and is comparatively well-known. The critical provisions of both the Prevention of Terrorism Act 2005 ('the PTA 2005') and CPR Part 76 are set out in the speech of Lord Bingham in MB and AF at [13–14] and [23–24].
As he explained in [13], the conditions for making and upholding a non-derogating control order under sections 2(1)(a) and 3(10) of the PTA 2005 are that the Secretary of State
“(a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and
(b) considers it 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.”
It is not now in dispute that the critical issue under section 3(10) of the PTA 2005 is whether there are reasonable grounds for suspicion that the controlee is or was involved in terrorism-related activity: see MB in this court (in a part of the judgment not disapproved in the House of Lords) at [58] et seq.
Lord Bingham succinctly summarised the provisions relating to special advocates and the relevant provisions of CPR Part 76 at [25–26] as follows:
“26. The Schedule to the 2005 Act provides a rule-making power applicable to both derogating and non-derogating control orders. It requires the rule-making authority (para 2(b)) to have regard in particular to the need to ensure that disclosures of information are not made where they would be contrary to the public interest. Rules so made (para 4(2)(b)) may make provision enabling the relevant court to conduct proceedings in the absence of any person, including a relevant party to the proceedings and his legal representative. Provision may be made for the appointment of a person to represent a relevant party (paras 4(2)(c) and 7). The Secretary of State must be required to disclose all relevant material (para 4(3)(a)), but may apply to the court for permission not to do so (para 4(3)(b)). Such application must be heard in the absence of every relevant person and his legal representative (para 4(3)(c)) and the court must give permission for material not to be disclosed where it considers that the disclosure of the material would be contrary to the public interest (para 4(3)(d)). The court must consider requiring the Secretary of State to provide the relevant party and his legal representative with a summary of the material withheld (para 4(3)(e)), but the court must ensure that such summary does not contain information or other material the disclosure of which would be contrary to the public interest (para 4(3)(f)). If the Secretary of State elects not to disclose or summarise material which he is required to disclose or summarise, the court may give directions withdrawing from its consideration the matter to which the material is relevant or otherwise ensure that the material is not relied on (para 4(4)).
27. Part 76 of the Civil Procedure Rules gives effect to the procedural scheme authorised by the Schedule to the 2005 Act. Rule 76.2 modifies the overriding objective of the Rules so as to require a court to ensure that information is not disclosed contrary to the public interest. Rule 76.1(4) stipulates that disclosure is contrary to the public interest if it is made contrary to the interests of national security, the international relations of the UK, the detection or prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest. Part III of the Rule applies to non-derogating control orders. It is unnecessary to rehearse its detailed terms. Provision is made for the exclusion of a relevant person and his legal representative from a hearing to secure that information is not disclosed contrary to the public interest (rule 76.22). Provision is made for the appointment of a special advocate whose function is to represent the interests of a relevant party (rules 76.23, 76.24), but who may only communicate with the relevant party before closed material is served upon him, save with permission of the court (rules 76.25, 76.28(2)). The ordinary rules governing evidence and inspection of documents are not to apply (rule 76.26): evidence may be given orally or in writing, and in documentary or any other form; it may receive evidence which would not be admissible in a court of law; it is provided that “Every party shall be entitled to adduce evidence and to cross-examine witnesses during any part of a hearing from which he and his legal representative are not excluded”.
It was argued in MB and AF that those provisions were in part incompatible with the Human Rights Act 1998 ('the HRA') in so far as they infringed the controlee's right to a fair trial of his civil rights and obligations under article 6 of the Convention and a declaration of incompatibility was sought on that ground. Lord Bingham was inclined to grant such a declaration but deferred to the view of the majority, comprising Baroness Hale, Lord Carswell and Lord Brown, that the relevant provisions should be read down under section 3 of the HRA, so that they would take effect only when it was consistent with fairness for them to do so: see per Lord Bingham at [44]. Baroness Hale explained the reasons why the reading down solution was appropriate at [70–73]. See also per Lord Carswell at [84] and Lord Brown at [92].
The decision of the House of Lords in MB and AF
In MB this court, comprising Lord Phillips CJ, Sir Igor Judge P and myself, held that, once it was held that reliance on closed material was permissible, those provisions of the PTA 2005 and of CPR Part 76 which provide for the use of special advocates constituted appropriate safeguards for the controlee. In MB and AF Lord Hoffmann agreed with that view but the majority of the appellate committee did not. The majority concluded that all depended upon the circumstances. In referring to the majority in this judgment we refer to Baroness Hale, Lord Carswell and Lord Brown. Although (as just stated) Lord Bingham did not dissent in the result, his reasoning seems to us to have been in some respects different from that of the majority. The issue which arises in this appeal is in what circumstances, as a matter of principle, a controlee will be regarded as having a fair hearing of the case against him and in what circumstances he will not.
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