Secretary of State for the Home Department v AE

In control-order proceedings, the use of closed material and a special advocate is compatible with article 6 only where the restrictions on the controlled person’s defence are strictly necessary and sufficiently counterbalanced by the procedure as a whole.

The court must identify the issue requiring determination, scrutinise undisclosed material with care and scepticism, and assess whether the controlled person has suffered significant injustice. Relevant considerations include the importance of the undisclosed material, the notice given of the allegations, its clarity, and the controlled person’s ability to answer it.

Where fairness requires disclosure and the Secretary of State declines to disclose, the material must not be relied upon.

The Secretary of State had made a non-derogating control order against AE under the Prevention of Terrorism Act 2005. The order was based on a suspicion that AE was involved in terrorism-related activity. Much of the supporting evidence was withheld from AE and his legal representatives on national-security grounds.

Following the House of Lords’ decisions in Secretary of State for the Home Department v MB, [2007] UKHL 46, and related appeals, the court reconsidered whether the special advocate procedure, closed hearings and disclosure made to AE had provided a fair trial under article 6 of the ECHR. The immediate issue was whether the procedure used in determining the section 2(1)(a) suspicion issue had caused significant injustice.

1. Applicable approach. Control-order proceedings are civil proceedings for article 6 purposes. The special advocate procedure and closed hearings are not invariably compatible with article 6. Restrictions on the defence must be strictly necessary and sufficiently counterbalanced by the procedures followed by the court, applying the approach adopted in Secretary of State for the Home Department v MB, [2007] UKHL 46.
2. Structured assessment. The court should first identify the issue on which the Secretary of State must establish the statutory requirement. It should then examine the undisclosed evidence by considering whether it concerns core or background matters, whether the controlled person has received notice of it, whether it is sufficiently defined to permit an effective answer, and how the person has in fact been able to respond. The decisive question is whether, looking at the process as a whole, the procedure caused significant injustice.
3. Scrutiny and threshold. The court and special advocate must examine claims for secrecy with care and considerable scepticism. The relevant statutory issue was whether there were reasonable grounds for suspecting involvement in terrorism-related activity, not whether AE was proved to be a terrorist. That threshold was comparatively low and required facts or information capable of satisfying an objective observer that the person may have committed the relevant conduct, following Fox Campbell and Hartley v United Kingdom, (1990) 13 EHRR 157.
4. Application. The closed material had to remain confidential because disclosure would create serious security risks. However, the December disclosure, AE’s evidence, the special advocate’s extensive cross-examination and the court’s own interventionist scrutiny sufficiently counterbalanced the disadvantages caused by non-disclosure. The procedure up to that stage had therefore not caused significant injustice.
5. Election by the Secretary of State. Certain allegations were sufficiently important, and insufficiently challengeable by the special advocate, that continued non-disclosure would seriously prejudice AE. The Secretary of State was accordingly required to choose between disclosing the allegations and abandoning reliance on them. She agreed not to rely on them. Subject to that qualification, AE’s article 6 rights had not been infringed at the stage considered.

The judgment is a first-instance decision on the article 6 issue arising in proceedings concerning AE’s control order. The court records that its earlier consideration was adjourned pending the House of Lords decisions in the conjoined control-order appeals, including Secretary of State for the Home Department v MB, [2007] UKHL 46. No appeal from this judgment is stated.