Secretary of State for the Home Department v AR & Ors

Procedural fairness under Article 6(1) ECHR does not require a minimum standard of disclosure where closed material cannot safely be disclosed. The relevant question is whether the essence of the adversarial process has been preserved. That may be achieved where the gist of the case is disclosed openly, respondents may give evidence, and special advocates scrutinise and challenge the closed material. In assessing national-security risk, the court must distinguish established facts from speculation and avoid treating an incomplete organisational association as a complete merger. Conclusions may remain provisional where the evidence is developing and individual cases have yet to be determined.

The Secretary of State applied under the Prevention of Terrorism Act 2005 in relation to five respondents said to be connected with the Libyan Islamic Fighting Group. The proceedings involved generic issues concerning the organisation’s history, its relationship with Al-Qaida, and the risk it posed to UK national security. The respondents challenged the fairness of determining those issues by reference to closed material and argued that Article 6(1) required disclosure sufficient to permit effective challenge by open advocates. Mr Justice Mitting considered the open and closed evidence and reached provisional conclusions on the organisation’s structure, activities and future development.

1. Procedural fairness. The proceedings satisfied the minimum requirements of Article 6(1) ECHR. Closed material could not be disclosed for reasons identified in CPR Part 76.1(4), but the adversarial character of the generic hearing was substantially preserved. The respondents had the gist of the Secretary of State’s case in open statements, an opportunity to give and call evidence, and the assistance of special advocates who scrutinised the closed material. Following Secretary of State for the Home Department v AF & Others [2008] EWCA Civ. 1148, procedural fairness did not require any minimum standard of disclosure.
2. Assessment of the LIFG. The LIFG had historically been a unified group whose principal objective was the overthrow of the Libyan government. A group of its members had for years co-operated with Al-Qaida in Afghanistan and Waziristan. That relationship did not establish a complete or full-scale merger. The 2007 announcement represented the beginning of a process which might lead to a merger, while later evidence indicated that the LIFG itself had not joined Al-Qaida as an organisation.
3. National-security risk. There were reasonable grounds for believing that the LIFG had facilitated support for the insurgency in Iraq, but no more could safely be concluded on that issue. The organisation remained a risk to UK national security, although its cohesion and effectiveness had been reduced. The future outcome of negotiations with the Libyan government and the possibility of a later merger with Al-Qaida were unknowable.
4. The conclusions in the open and closed judgments were expressly provisional and might be revised after consideration of the individual cases.