Secretary of State for the Home Department v AF (No 3)

JurisdictionEngland & Wales
CourtHouse of Lords
Judgment Date10 June 2009
Neutral Citation[2009] UKHL 28
Date10 June 2009

[2009] UKHL 28


Appellate Committee

Lord Phillips of Worth Matravers

Lord Hoffmann

Lord Hope of Craighead

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Baroness Hale of Richmond

Lord Carswell

Lord Brown of Eaton-under-Heywood

Secretary of State for the Home Department
(Appellant) (FC)

and another


and one other action

Appellant (AF):

Lord Pannick QC

Timothy Otty QC

Zubair Ahmad

Tom Hickman

(Instructed by Middleweeks)

Appellant (AE):

Tim Owen QC

Ali Bajwa

(Instructed by Chambers)

Appellant (AN):

Tim Owen QC

Raza Husain

(Instructed by Birnberg Peirce & Partners)


James Eadie QC

Tim Eicke, Cecilia Ivimy

Andrew O'Connor, Kate Grange

(Instructed by Treasury Solicitors)

Interveners (Justice):

Michael Fordham QC

Jemima Stratford, Shaheed Fatima

Tom Richards

(Instructed by Clifford Chance)

Special Advocates:

Hugo Keith QC, Jeremy Johnson (AF)

Michel Supperstone QC, Tom de la Mare (AE)

Angus McCullough, Paul Bowen (AN)

(Instructed by the Special Advocates Support Office)


My Lords,



The three appellants, AF, AN and AE, are subject to non-derogating control orders ("control orders") involving significant restriction of liberty. A control order was first made against AF on 24 May 2006, against AN on 4 July 2007 and against AE on 15 May 2006. Each control order was made pursuant to section 2 of the Prevention of Terrorism Act 2005 ("the PTA") on the ground that the Secretary of State had reasonable grounds for suspecting that the appellant was, or had been, involved in terrorism-related activity. The issue raised by their appeals is whether, in each case, the procedure that resulted in the making of the control order satisfied the appellant's right to a fair hearing guaranteed by article 6 of the European Convention on Human Rights ("article 6") in conjunction with the Human Rights Act 1998 ("the HRA"). Each contends that this right was violated by reason of the reliance by the judge making the order upon material received in closed hearing the nature of which was not disclosed to the appellant.

The history of control orders


After the tragic events of September 11 2001 the Secretary of State made a Derogation Order under section 14 of the HRA and then enacted the Anti-terrorism, Crime and Security Act 2001 ("the ATCSA"). Section 23 of the ATCSA gave the Secretary of State the power to detain a suspected international terrorist with a view to his intended deportation. A suspected international terrorist was an alien whose presence in the United Kingdom the Secretary of State reasonably believed to be a risk to national security and whom he reasonably suspected to be a terrorist. An appeal against certification as a suspected international terrorist lay to the Special Immigration Appeals Commission ("SIAC"). Provision was made for SIAC to receive material in closed hearings at which the suspects would be represented by special advocates, who would not be permitted to consult their clients in order to take instructions in relation to the closed material.


In A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68 this House quashed the Derogation Order and declared section 23 of the ATCSA incompatible with articles 5 and 14 of the Convention. Parliament's response was to enact the PTA, which made provision for the making of derogating and non-derogating control orders.



The following are the relevant provisions of the PTA:

Section 2(1) gives the Secretary of State power to make a control order against an individual if he:

"(a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and

(b) considers that it is 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."

Section 3 makes provision for the supervision by the court of the making of control orders. Section 3(10) makes provision for a hearing ("the section 3(10) hearing") at which the function of the court is to determine whether the decision of the Secretary of State that the requirements of section 2(1)(a) and (b) were satisfied and that the obligations imposed by the order were necessary was flawed.


The rules that govern a section 3(10) hearing were summarised by Lord Bingham of Cornhill in Secretary of State for the Home Department v MB and AF [2007] UKHL 46; [2008] AC 440, to which I shall shortly be referring, and I shall gratefully adopt that summary:

"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 (paragraph 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 (paragraph 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: paragraphs 4(2)(c) and 7. The Secretary of State must be required to disclose all relevant material (paragraph 4(3)(a)), but may apply to the court for permission not to do so: paragraph 4(3)(b). Such application must be heard in the absence of every relevant person and his legal representative (paragraph 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: paragraph 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 (paragraph 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: paragraph 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: paragraph 4(4).

27. CPR Pt 76 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 United Kingdom, 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 by rule 76.26(5) 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'."


38 individuals have been subjected to control orders under the PTA. Of these 7 have absconded. Those who did not abscond, or some of them, have generated an extraordinary volume of litigation. The section 3(10) hearings themselves are substantial undertakings, involving as they do open and closed hearings and two sets of advocates representing those who are subject to the orders, whom I shall describe by the inelegant invented noun as "controlees". The care and industry devoted by both judges and advocates to ensuring that the interests of the controlees are properly considered deserves recognition. It exemplifies the respect that is accorded by those involved in the administration of justice in this country both to human rights and to the rule of law.


The section 3(10) hearing in many cases proved merely the start of a lengthy saga. The Court of Appeal at paragraphs 9 and 10 describes the series of substantial hearings that have involved AF. This is the second time that his case has been before this House and the eighth substantial hearing that it has received. Nor will this be the last. I propose to pick up the story on the occasion that the case of MB came before the Court of Appeal, a hearing over which I presided. MB and AF were subsequently co-appellants to this House.

Secretary of State for the Home Department v MB


This appeal [2006] EWCA Civ 1140, [2007] QB 415 was brought by the Secretary of State against a decision of Sullivan J holding the PTA incompatible with the Convention. One of the reasons for so holding was that MB had not had a fair hearing in that the court had been constrained by the provisions of the PTA to reach a decision on the basis of closed evidence of which MB was unaware and which he was therefore not in a position...

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