Secretary of State for the Home Department v Rideh

In control-order proceedings, further disclosure of protected material is required where, considering the process as a whole, the controlled person has not received a substantial and commensurate measure of procedural protection. The question is whether disclosure in some appropriate form is needed to enable an effective challenge or rebuttal of the essential features of the case, with the assistance of special advocates.

Disclosure is unnecessary where the order would not be upheld, the material is unreliable or immaterial, or the open evidence independently justifies the order. The court must make a practical assessment. A summary or gist may suffice, and the special advocates’ work must be taken into account. Article 6 requirements ultimately prevail over the statutory protection of sensitive material.

The Secretary of State sought to uphold a second control order against Abu Rideh. The proceedings also concerned its renewal and appeals against refusals to modify the obligations. The court had already considered open evidence, closed evidence and the work of the special advocates.

The issue was whether, applying SSHD v MB and AF [2007] UKHL 46, further disclosure of protected material was required for an Article 6-compliant hearing. The court also considered approaches taken in SSHD v AF [2008] EWHC 453 (Admin) and SSHD v AN [2008] EWHC 372 (Admin).

1. Applicable test. The court held that the decisive question was whether, if the control order were upheld without further disclosure, the procedure would involve significant injustice, or whether the controlled person had received a substantial and commensurate measure of procedural protection. The assessment had to be practical and based on the process as a whole.
2. Nature of disclosure. Further disclosure was required only where the special advocates could not provide the necessary protection in relation to material on which reliance was placed. The controlled person needed sufficient knowledge, in whatever form, of the case against him to enable an effective challenge or rebuttal. A summary, gist or other limited disclosure could suffice. The special advocates could usually address reliability, contradictions, innocent inferences and the overall strength of the case, but could not supply instructions or evidence concerning essential features of the case of which the controlled person was unaware.
3. Limits on disclosure. No further disclosure was needed in relation to allegations which the court regarded as unreliable or unimportant, material which would not affect the outcome, or a case which would not be upheld on the open evidence or after final submissions. The statutory standard of reasonable grounds for suspicion and the likely effect of the material had to be considered.
4. Application. The distinction between a mosaic case and a specific past-act case did not justify different disclosure tests. In this case, the open material did not readily sustain the continuing restrictions, and the special advocates had been unable effectively to deal with essential features concerning post-2001 activity. Further disclosure was therefore ordered. The parties were granted permission to appeal, and the appeals were to resume after the Court of Appeal’s decision if practicable.

The judgment itself records pending appeals to the Court of Appeal concerning the disclosure test and its application. Permission to appeal against both the closed and open judgments was granted. No determination by the Court of Appeal is stated.