Secretary of State for the Home Department v AF

Article 6 fairness in control-order proceedings is fact-sensitive. The court must assess the process as a whole and determine whether the controlled person received a substantial and sufficient measure of procedural protection. Special advocates may compensate for non-disclosure, but their participation does not invariably make the hearing fair. The court must consider the nature of the allegations, what has been disclosed or gisted, the withheld material, the special advocate’s ability to challenge it, and the difference disclosure might have made. Where the case depends entirely on undisclosed material, the proceedings will ordinarily be unfair unless the court is quite sure that no possible challenge could conceivably have succeeded. The control-order procedure must be read consistently with Article 6, even where that prevents the Secretary of State from relying on material which cannot safely be disclosed.

The Secretary of State brought proceedings under section 3(10) of the Prevention of Terrorism Act 2005 concerning control orders imposed on AF. Ouseley J had quashed the first order, PTA/33/2006, on Article 5 grounds but held that the section 3(10) proceedings were fair under Article 6.

The House of Lords reversed the Article 5 conclusion and remitted the Article 6 issue in [2007] UKHL 47. The central question was whether a hearing could be fair where the significant allegations and evidence relied on by the Secretary of State had not been disclosed to AF, but had been examined and challenged by special advocates.

1. Article 6 standard. Proceedings under section 3(10) of the Prevention of Terrorism Act 2005 are civil proceedings, but the procedural protection required must reflect the gravity of the restrictions imposed. Fairness is assessed by examining the process as a whole.
2. Disclosure and special advocates. The court accepted that sensitive material may properly be withheld where disclosure would be contrary to the public interest. Special advocates can provide substantial procedural protection, but their use does not automatically satisfy Article 6. Relevant considerations include the nature of the case, the extent to which the allegations have been explained or summarised, the nature and content of the withheld material, the effectiveness of the special advocate’s challenge, and what difference disclosure might have made.
3. Application to AF. The case against AF depended entirely on closed material. The open material disclosed no clear or significant allegation of terrorism-related activity, and the additional disclosure merely stated that the Security Service assessed that AF had engaged, or might engage again, in terrorism-related activity. AF could do no more than issue a general denial. Although the special advocates had done everything reasonably practicable, their attempts to undermine the Secretary of State’s case had been ineffective. Subject to the remaining issue, the proceedings before Ouseley J therefore did not comply with Article 6.
4. Exceptional qualification. The court considered the possible exception that proceedings may nevertheless be fair where the court is quite sure that no possible challenge could conceivably have succeeded. The required assurance is very high. The relevant question concerns objectively reasonable grounds for suspicion, not proof that AF had committed or intended to commit a terrorist offence.
5. Statutory construction and procedure. CPR Part 76 had to be read down under section 3 of the Human Rights Act 1998. The court could not order disclosure contrary to the public interest, but could prevent the Secretary of State relying on material where reliance on it without disclosure would make the hearing unfair. The judge permitted further submissions on the proposed exception and gave directions for the future conduct of the proceedings.

• House of Lords remitted the Article 6 issue in [2007] UKHL 47, after reversing the Article 5 conclusion.
• High Court (Administrative Court) determined the remitted issue and provisionally held that the proceedings before Ouseley J did not comply with Article 6, subject to further submissions on whether the exceptional no-possible-challenge qualification applied.