Secretary of State for the Home Department v AR (Proceedings under the Prevention of Terrorism Act 2005)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTIN |
| Judgment Date | 14 November 2008 |
| Neutral Citation | [2008] EWHC 2789 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: PTA/17/2008 PTA/20/2008 PTA/21/2008 PTA/22/2008 |
| Date | 14 November 2008 |
[2008] EWHC 2789 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF AN APPLICATION PURSUANT
TO THE PREVENTION OF TERRORISM ACT 2005
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mittin
Case No: PTA/17/2008
PTA/19/2008
PTA/20/2008
PTA/21/2008
PTA/22/2008
MR ANDREW O'CONNOR & MR JONATHAN HALL (instructed by THE TREASURY SOLICITOR) for the Applicant
AR
(1) MR EDWARD GRIEVES (instructed by The Rights Partnership) for the RESPONDENT
MR MICHAEL BIRNBAUM QC & MISS MELANIE PLIMMER (instructed by THE TREASURY SOLICITOR SPECIAL ADVOCATE SUPPORT OFFICE) as Special Advocates
AT
(1) MR EDWARD GRIEVES (instructed by The Rights Partnership) for the RESPONDENT
MR ANDREW NICOL QC & MISS JUDITH FARBEY (instructed by THE TREASURY SOLICITOR SPECIAL ADVOCATE SUPPORT OFFICE) as Special Advocates
AU
(3) MR MATTHEW RYDER (instructed by BIRNBERG PEIRCE SOLICITORS) for the RESPONDENT MR MARTIN CHAMBERLAIN & MISS CATHRYN McGAHEY (instructed by THE TREASURY SOLICITOR SPECIAL ADVOCATE SUPPORT OFFICE) as Special Advocates
AV
(4) MR OWEN DAVIES QC & MISS STEPHANIE HARRISON (instructed by TYNDALLWOODS SOLICITORS) for the RESPONDENTMR MICHAEL BIRNBAUM QC & MISS MELANIE PLIMMER (instructed by THE TREASURY SOLICITOR SPECIAL ADVOCATE SUPPORT OFFICE) as Special Advocates
AW
(5) MR EDWARD GRIEVES (instructed by The Rights Partnership) for the RESPONDENT MR ANDREW NICOL QC & MR MARTIN CHAMBERLAIN (instructed by THE TREASURY SOLICITOR SPECIAL ADVOCATE SUPPORT OFFICE) as Special Advocates
Hearing dates: 28th, 29th, 30th & 31st October 2008 and 3rd & 4th November 2008
MR JUSTICE MITTING:
Procedure
The Secretary of State has served two amended open statements, with open annexes. The open statement sets out, in summary form, the assessment of the Security Service about the origins and recent history of the LIFG and the risk which it is now assessed to pose to the national security of the United Kingdom. On their face, the statements appear to be founded, to a significant extent, upon the open annexes. Some of them are problematical, in particular document 16, a report by Evan F Kohlmann described as “NEFA Senior Investigator”. (NEFA stands for “Nine Eleven Finding Answers” Foundation.) The value of the report is significantly undermined by three factors: it relies on detainee reporting, a source eschewed by the Secretary of State for good pragmatic reasons (the difficulty and expense of investigating claims that detainees were tortured or ill treated); selective quotation from an interview with a valuable source, the former leader of the LIFG in the United Kingdom, Ben Otman, sufficient to distort his views; and the palpable hits secured by defence Counsel in the criminal trial of AV which caused the prosecution to abandon reliance on any expression of opinion by Mr Kohlmann. If the Secretary of State's case on the generic issues had, in truth, depended upon sources such as this, it would have been in difficulty. In fact, however, as witness AB said in evidence, the conclusions stated in the open statements were not founded on the open source material, but on far more extensive and potentially reliable closed material. I accept that they are and have conducted my own examination of the closed material in the closed Judgment. Contrary to my usual practice, I will state my conclusions about generic issues in the open Judgment, substantially without founding them upon open source material.
The way in which the Secretary of State's open case was presented on paper has had the unfortunate consequence that the respondents' open advisers and advocates have expended a good deal of forensic effort in seeking to discredit the open source material – with, in the case of document 16, considerable success; but they have been led on a wild goose chase. This should have been avoided. The Secretary of State should have made it clear, when the open source material was served, that it was being used for the purpose explained by witness AB: to place in the open arena things which the Security Service would not otherwise be able to. If this situation arises in the future, that should be explicitly stated.
The open advocates submit that the proceedings to determine generic issues do not satisfy the minimum procedural requirements of fairness required by Article 6(1) ECHR. They do so on the familiar ground that, unless the open advocates have the opportunity of examining and challenging the material upon which the Secretary of State's conclusions are founded, they cannot mount an effective challenge to her case. The nature of the closed material is such that it cannot be disclosed for one or more of the reasons identified in CPR Part 76.1(4). Detailed scrutiny of the material must be conducted by the Special Advocates. They have performed that task with their customary skill and rigour. While it would be invidious for me to comment on the relative abilities of advocates, I cannot conceive that it would have been better done by open advocates. Further, the essence of the adversarial system has been substantially preserved in the generic part of these proceedings: the gist of the Secretary of State's case has been set out in the open statements; and the respondents have had the opportunity to give and call evidence about generic issues. They have not taken it, but, instead, have chosen to put in fairly general critiques of the Secretary of State's case prepared by their solicitors: 1/243 – 252. On one significant issue – the “merger” between the LIFG and Al-Qaida (AQ) —they rely on a piece of evidence of some significance: an answer by Al Zawahiri to a question posed by NEFA, of which a transcript or summary was released on 17 th April 2008: 1/254. Once it is accepted, as it must be in the light of the Judgment of the Court of Appeal in Secretary of State for the Home Department v AF & Others [2008] EWCA Civ. 1148, that...
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