Bullivant, Re

In control-order proceedings, fairness under Article 6 must be assessed by examining the process as a whole. The court must consider whether non-disclosure, despite the involvement of a special advocate, prevents the controlled person from mounting a meaningful defence to the case establishing reasonable suspicion.

The Secretary of State must disclose as much material as possible and withhold only material whose disclosure is clearly contrary to the public interest. Evidence contributing to the overall case should not be assessed in isolation. The court should decide the disclosure issue after open and closed hearings, keep disclosure under review, and determine at the conclusion whether any unfairness has arisen and whether it can be remedied.

The respondent was subject to control-order proceedings and had absconded in breach of the conditions of an anonymity order. Special advocates applied under CPR 76.29 for additional disclosure of material which the Secretary of State sought to withhold.

The hearing addressed the effect of Secretary of State for the Home Department v MB [2007] UKHL 46 on Rule 29 hearings and the general approach to determining whether proceedings remained fair where closed material was relied upon. The central issue was how the court should assess disclosure, procedural fairness and the possibility of a meaningful defence under Article 6.

1. Approach to fairness. The court must assess whether the process as a whole affords the controlled person a fair hearing. The question cannot ordinarily be determined before the open and closed evidence has been tested. The judge handling the case is best placed to decide whether non-disclosure has prevented a meaningful defence.
2. Disclosure standard. The Secretary of State must be as open as possible and may seek to withhold only material which it is clearly in the public interest not to disclose. CPR 76.29(8) prevents disclosure where disclosure would be contrary to the public interest, but the fairness assessment requires the court to consider whether the withheld material prevents the controlled person from answering the essential case.
3. Assessment of evidence. Individual pieces of evidence contributing to the overall case should not be viewed in isolation. The court must examine the final evidential picture and consider whether disclosure, by gisting or otherwise, is needed to enable a possible defence to be addressed.
4. Continuing duty and remedy. The duty to consider further disclosure is ongoing. The court may order disclosure at any stage. At the conclusion of the hearing it must decide whether Article 6 has been breached and, where possible, give the Secretary of State an opportunity to remedy the breach through further disclosure, followed by an opportunity for the controlled person to respond.
5. Evidence of the controlled person. Generally, a controlled person wishing to give evidence should do so in the open hearing before the closed hearing, so that the special advocate can focus cross-examination. Further disclosure may justify recalling the witness.

Not stated in the judgment.