Secretary of State for the Home Department v AF & Ors

In non-derogating control-order proceedings, Article 6 fairness is assessed by examining the hearing as a whole and asking whether reliance on closed material causes significant injustice or impairs the essence of a fair hearing. A special advocate does not automatically make the process fair, but there is no fixed irreducible minimum of allegations or evidence that must always be disclosed openly. The court must take all proper steps to provide the maximum possible information, including an appropriate gist. Relevant factors include the nature of the case, the material withheld, the special advocate’s effectiveness and what further disclosure might change. The assessment is fact-sensitive. The statutory test is reasonable grounds for suspicion, not proof on the balance of probabilities.

These conjoined appeals concerned non-derogating control orders made under the Prevention of Terrorism Act 2005. The Secretary of State appealed decisions in favour of AF, AM and AN. AE appealed a decision that his hearing had been fair. The appeals followed the House of Lords’ decision in Secretary of State for the Home Department v MB and AF [2007] UKHL 46, which remitted the control-order proceedings for reconsideration under Article 6. The central issue was whether the use of closed material and special advocates could provide a fair hearing where substantial allegations or evidence were not disclosed to the controlee.

1. Disposition. AE’s appeal was dismissed. The Secretary of State’s appeals were allowed in the cases of AF and AN, dismissed in the case of AM, and the cases of AF and AN were remitted for reconsideration.
2. Article 6 test. The majority, Sir Anthony Clarke MR and Waller LJ V-P, held that the question was whether the section 3(10) hearing, viewed as a whole, was fundamentally unfair and involved significant injustice, denied a substantial measure of procedural justice or impaired the essence of the right to a fair hearing. There was no legal rule requiring disclosure of an irreducible minimum of allegations or evidence. The absence of a gist remained an important factor, but was not automatically decisive.
3. The Secretary of State and the court must take all proper steps to provide as much information as possible, including by gisting the allegations and evidence. The court must consider the nature of the case, the open explanation, the nature and content of the closed material, the effectiveness of the special advocate, and what further disclosure might make possible. It was legitimate to consider whether disclosure would alter the conclusion that there were reasonable grounds for suspicion, but this was part of the overall fairness assessment and not a separate exception.
4. The statutory question was whether there were reasonable grounds for suspicion. It did not require proof on the balance of probabilities. The court could assess a matrix of facts established to differing degrees of certainty. The timing of the fairness decision was a case-management matter. The process could be iterative, and an appellate court should rarely interfere with the first-instance judge’s evaluative assessment.
5. Mitting J and Stanley Burnton J had applied an erroneous irreducible-minimum test. Their cases were remitted. Silber J had applied the correct principles in AE, and Sullivan J’s closed judgment in AM disclosed no error. For AE, Article 5 deprivation of liberty depended on the overall factual matrix; a 16-hour curfew was not automatically a deprivation. The necessity and proportionality of each obligation had been intensely scrutinised, and no error of principle justified interference.
6. Dissent. Sedley LJ considered that an otherwise unfair hearing could not become fair because the undisclosed material appeared unanswerable. He would have allowed AE’s appeal and upheld the decisions in AF and AN, although he agreed that AM’s case should not be disturbed.

• Court of Appeal (Civil Division): The present court dismissed AE’s appeal, allowed the Secretary of State’s appeals in AF and AN, dismissed the appeal in AM, and remitted AF and AN.
• Administrative Court: Silber J held that AE had received a fair hearing in [2008] EWHC 132 (Admin) and [2008] EWHC 585 (Admin) . Stanley Burnton J decided AF in [2008] EWHC 689 (Admin) . The citations of the decisions concerning AM and AN were not stated in the judgment.
• House of Lords: In Secretary of State for the Home Department v MB and AF [2007] UKHL 46 , the proceedings were remitted to the High Court for reconsideration in light of the opinions on Article 6.