MB, Re

Proceedings under section 3 of the Prevention of Terrorism Act 2005 must provide a fair hearing under Article 6.1 where control-order obligations engage Convention rights. Judicial review of the Secretary of State’s earlier decision is insufficient where the court cannot consider the up-to-date evidence or reach its own conclusions on the merits.

The court must be able to examine the totality of the evidence, including the controlled person’s response and the Special Advocate’s submissions. The combination of executive decision-making, a low threshold of reasonable suspicion, closed evidence, and the court’s limited supervisory jurisdiction made the procedure conspicuously unfair. A declaration of incompatibility was therefore appropriate.

The Secretary of State made a non-derogating control order against MB under the Prevention of Terrorism Act 2005, imposing residence, reporting, travel and search obligations. Permission was granted without notice because the Secretary of State’s decision was not obviously flawed.

At the section 3(10) hearing, the respondent challenged the fairness of the statutory procedure. Much of the case against him was contained in closed material which could not even be summarised. The central questions were whether the proceedings were civil or criminal for Article 6 purposes and whether the court’s supervisory jurisdiction provided a fair hearing.

1. Nature of the court’s function. The court’s function under section 3(10) was supervisory. It had to review the Secretary of State’s decisions made on or about September 2005 by reference to the material then available, applying judicial review principles. It was not permitted to decide afresh whether the statutory criteria were satisfied on the evidence available at the hearing.
2. Article 6 classification. The proceedings were civil, not criminal, for Article 6 purposes. The court was bound by A & Others v Secretary of State for the Home Department [2004] QB 335, notwithstanding the seriousness of the terrorism-related allegation.
3. Fair-hearing requirement. Applying the principles in Bryan v United Kingdom [1995] 21 EHRR 342, the adequacy of review depended on the subject matter, the manner in which the decision was reached and the content of the dispute. An allegation of involvement in terrorism-related activity was close to the paradigm matters which should be determined judicially. The dispute required assessment of facts and necessity, rather than review of executive policy or expediency.
4. The reasonable-suspicion test was partly subjective and partly objective. The court had to examine the information in the Secretary of State’s mind when the decision was made and ask whether it provided reasonable grounds for the suspicion. Later evidence and explanations could not be considered under section 3(10): see O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286.
5. The Special Advocate and closed-material procedure did not, of themselves, breach Article 6.1. However, they were important factors in assessing fairness. Here the respondent had received neither the substantial closed case nor a summary of it, while the court could not conduct a merits review. The cumulative effect of the statutory features deprived the respondent of an effective opportunity to challenge the case against him.
6. Sections 7 and 10 did not cure the defect. They did not provide a means of determining whether the order should never have been made, and any later review would itself concern the lawfulness of a subsequent executive decision rather than the merits of the original case.
7. The court could not realistically find the Secretary of State’s original decisions legally flawed on the one-sided material then available. Under section 3(13), the control order therefore continued in force. Nevertheless, the section 3 procedure was incompatible with Article 6.1, and a declaration of incompatibility was made under section 4 of the Human Rights Act 1998. The Secretary of State was ordered to pay the respondent’s costs.

First-instance proceedings in the Administrative Court. The court granted permission to appeal on the compelling reason that the lawfulness of the procedure was of public importance.