Secretary of State for the Home Department v. MB (FC) (Appellant)

Proceedings concerning a non-derogating control order determine civil rights, rather than a criminal charge, but article 6 requires procedural protection commensurate with the consequences. Closed evidence and a special advocate can be compatible with a fair hearing, but do not invariably secure one.

The court must assess the process as a whole. The controlled person must receive a substantial measure of procedural justice and a meaningful opportunity to contest the order. Where undisclosed evidence is crucial and the resulting disadvantage cannot be adequately counterbalanced, reliance on that evidence is impermissible and the order cannot stand. The statutory scheme must be read under section 3 of the Human Rights Act 1998 as subject to that requirement.

Secretary of State for the Home Department v MB concerned a non-derogating control order supported principally by material withheld from MB. Sullivan J maintained the order but declared section 3 of the Prevention of Terrorism Act 2005 incompatible with article 6(1): [2006] EWHC 1000 (Admin). The Court of Appeal set aside the declaration and directed reconsideration: [2006] EWCA Civ 1140.

Secretary of State for the Home Department v AF concerned a 14-hour curfew and other restrictions. Ouseley J quashed the order as a deprivation of liberty, but rejected AF's contentions that the proceedings determined a criminal charge or were incompatible with article 6: [2007] EWHC 651 (Admin). Both parties appealed directly to the House.

The principal questions were whether AF had been deprived of liberty, whether non-derogating control-order proceedings were criminal, and whether reliance on substantially or entirely undisclosed evidence was compatible with a fair hearing.

1. Disposition. The House unanimously allowed the Secretary of State's appeal against the conclusion that AF had been deprived of liberty. MB's appeal was dismissed, leaving intact the Court of Appeal's direction for reconsideration. By a majority on the article 6 approach, AF's case was also remitted so that both control-order reviews could be reconsidered under the correct fairness standard.

2. Liberty and classification. Per Lord Bingham, Lord Hoffmann, Baroness Hale, Lord Carswell and Lord Brown, the cumulative effect of AF's 14-hour curfew and associated restrictions did not cross the boundary between restriction of movement and deprivation of liberty under article 5(1) of the European Convention on Human Rights. The proceedings also did not determine a criminal charge. They rested on reasonable suspicion and pursued prevention rather than conviction, punishment, retribution or deterrence. Nevertheless, the civil limb of article 6(1) required protection commensurate with the gravity of the possible restrictions.

3. Closed evidence. Lord Bingham, Baroness Hale, Lord Carswell and Lord Brown formed the majority on the governing principle. A special advocate can provide an important safeguard, but cannot invariably cure the disadvantage caused when the controlled person does not know the case against him. The judge must examine the process as a whole and decide whether it has afforded a substantial measure of procedural justice and avoided significant injustice.

   Relevant considerations include the detail given about the allegations, the availability of redaction or a gist, the nature and importance of the closed material, the effectiveness of the special advocate's challenge, and whether disclosure could have enabled an effective answer. Where closed material is crucial and no adequate challenge is possible, the court cannot rely on it consistently with article 6.

4. Compatible interpretation. Per Baroness Hale and Lord Carswell, with Lord Brown agreeing and Lord Bingham ultimately concurring in the remedy, paragraph 4(3)(d) of the Schedule to the Prevention of Terrorism Act 2005, together with paragraph 4(2)(a) and rule 76.29(8), must be read under section 3 of the Human Rights Act 1998 as subject to an exception where withholding material would be incompatible with a fair trial. If the Secretary of State still declined to disclose it, the material could not be relied upon. If it were crucial, the control order would have to be quashed. A declaration of incompatibility was therefore unnecessary.

5. Application. The open cases against MB and AF were exceptionally thin, while the principal grounds rested on closed material. The existing decisions did not adequately determine whether the special advocates had nevertheless counterbalanced that disadvantage. Both matters were remitted to the Administrative Court for that assessment.

6. Dissent on article 6. Lord Hoffmann considered the statutory special-advocate procedure sufficient in principle. He would have dismissed both controlled persons' article 6 appeals without requiring the majority's case-specific qualification.

1. House of Lords: In Secretary of State for the Home Department v MB and the joined AF appeals, [2007] UKHL 46 , the House rejected the article 5 deprivation-of-liberty conclusion and held that the proceedings were civil. It remitted both reviews for assessment under its article 6 fairness standard.
2. Court of Appeal: In MB's case, [2006] EWCA Civ 1140 , [2007] QB 415 , the court allowed the Secretary of State's appeal, set aside the declaration of incompatibility and ordered reconsideration of the control order.
3. Administrative Court—MB: Sullivan J maintained the control order but declared section 3 of the Prevention of Terrorism Act 2005 incompatible with article 6(1): [2006] EWHC 1000 (Admin) , [2006] HRLR 878.
4. Administrative Court—AF: Ouseley J quashed AF's order as a deprivation of liberty but dismissed the application for a declaration of incompatibility: [2007] EWHC 651 (Admin) . He certified both parties' appeals for direct consideration by the House.