Secretary of State for the Home Department v AN

In control-order proceedings, a fair hearing requires disclosure sufficient to enable the controlled person to understand and answer the essential grounds for suspicion. Special advocates cannot invariably cure the disadvantage caused by withholding those grounds, because they cannot obtain meaningful instructions on undisclosed allegations. At a minimum, the gist of the essential grounds must ordinarily be disclosed, enabling the controlled person to give or call evidence. The exceptional case is one in which the judge is sure that no conceivable challenge could succeed. Where the necessary disclosure cannot be made and the undisclosed material is central to the case, the Secretary of State cannot rely on it while maintaining a fair-hearing procedure.

The Secretary of State sought to maintain a non-derogating control order against AN on allegations of terrorism-related activity. AN argued that reliance on undisclosed grounds infringed his right to a fair hearing under Article 6 of the European Convention on Human Rights. The court had already concluded in closed judgments that a substantial part of the grounds had not been disclosed, that the material could not safely be disclosed in its existing form, and that it was capable of founding reasonable suspicion.

The central issue was whether the special-advocate procedure provided sufficient procedural protection, and whether the Secretary of State could postpone deciding whether to disclose the necessary material or withdraw that part of her case.

1. The court held that the principle identified by the House of Lords in Secretary of State for the Home Department v MB & Others [2007] UKHL 46 was clear: the Secretary of State may not rely on material withheld from the controlled person where doing so would make the hearing unfair.

2. The special-advocate procedure does not invariably secure a fair hearing. Special advocates may expose evidence as unreliable, tainted or self-contradictory, but they cannot ordinarily obtain meaningful instructions on allegations which the controlled person does not know. Their involvement is therefore not a complete answer to the absence of disclosure.

3. The practical minimum requirement was that the special advocates must be able to challenge the essential features of the grounds for suspicion on the basis of instructions from the controlled person. In practice, this required disclosure of the gist of those grounds, so that AN could address them and, if he chose, give or call evidence. The only possible exception was where the judge could feel sure that no conceivable challenge could succeed.

4. Although the closed material was capable of founding reasonable suspicion, AN had not been given the gist of significant grounds relied upon against him. The necessary redaction, anonymisation or gisting was impossible, and the court could not conclude that no possible challenge could succeed. Requiring AN first to present his case in ignorance of the material, with a possible later reopening, would serve no useful purpose.

5. The Secretary of State was therefore required to elect whether to make the necessary disclosure or withdraw that aspect of her case. Her request to postpone that election until the end of the proceedings was refused.

Not stated in the judgment.