Secretary of State for the Home Department, R (on the application of) v AH

The policy of neither confirming nor denying whether security-service meetings occurred is not inflexible, but compelling public-interest reasons may justify maintaining it. Article 6 requires sufficient disclosure to enable effective instructions and a fair opportunity to answer the case. It does not require departure from the policy where the Secretary of State does not rely on the alleged meetings or their contents, and the controlled person remains free to advance his own account. A witness may therefore decline questions directed solely to confirming or denying such meetings.

In these judicial review proceedings, AH relied on alleged meetings with members of the Security Service to argue that any national-security risk he posed was absent or diminished. He sought to question a Security Service witness about those meetings. The Secretary of State relied on the established policy of neither confirming nor denying whether such meetings had occurred.

The court had to determine whether Article 6, together with the closed-material procedure, required the Secretary of State to waive or abandon that policy and whether the witness should be required to answer the proposed questions.

1. The court held that the policy of neither confirming nor denying the occurrence of security-service meetings is not absolute. Nevertheless, the policy rests on compelling public-interest considerations. The court adopted the reasoning concerning its maintenance in Freddie Scappaticci [2003] NIQB 56, including the policy reasons summarised by Brooke LJ in A v Secretary of State for the Home Department [2003] 1 All ER 816.

2. Under Civil Procedure Rules 1998 Part 76.2(2), the court had to ensure that information was not disclosed contrary to the public interest. The related closed-material procedure under CPR 76.29 permitted the Secretary of State, where the court ruled against an objection, to consider withdrawing the material and placing no reliance on it.

3. The majority speeches in Secretary of State for the Home Department v MB [2007] UKHL 46 showed that withdrawal may be necessary where reliance on closed material would infringe Article 6. Article 6 requires the controlled person to know enough of the case to give effective instructions to his advocates or special advocates. It does not require the Secretary of State to renounce a soundly based NCND policy where she does not rely on the alleged meetings or their contents.

4. AH was free to give evidence about the meetings, instruct his own advocates, and communicate his case through them and the available materials to the special advocates. Asking the Security Service witness about the meetings would therefore serve no useful purpose, since the witness could properly decline to answer. The court did not formally prohibit the questions, but indicated that it would permit the witness not to answer them.