Secretary of State for the Home Department v AF

Article 6 requires disclosure of the substance of the case on which a control order is based, so that the respondent can advance an effective challenge. There is no exception merely because the court considers that no possible challenge could succeed. Procedural fairness is distinct from the substantive correctness of the outcome. A court may determine a legal issue after an interlocutory judgment where the earlier judgment contained an error, the issue remains relevant, there is no prejudice, and determination will assist an appellate court.

The judgment concerned an issue remitted from MB and AF [2007] UKHL 47. The court had previously held that insufficient closed allegations and evidence had been disclosed to AF to enable an effective challenge, but had reserved the question whether Lord Brown’s suggested exception applied where no possible challenge could conceivably succeed.

The Secretary of State argued that the issue could not be reopened after the earlier judgment. AF argued that the earlier acceptance of the exception was erroneous and should be reconsidered. The court therefore addressed whether it should determine the point and whether the proposed exception formed part of Article 6 law.

1. The court had jurisdiction and should determine the issue. The earlier judgment was interlocutory, the point was one of law divorced from the facts, the issue remained relevant to the continuing proceedings, and the Secretary of State identified no prejudice. It was also desirable that the Court of Appeal should have a fully reasoned first-instance decision on the point.

2. The suggested exception was not established by R v Botmeh [2001] EWCA Crim 2226 or Botmeh and Alami v UK. Those cases concerned material which was exculpatory or insignificant, while the present case concerned the substance of the case against the respondent. They did not establish that significant allegations and evidence could be withheld merely because the case appeared unanswerable.

3. The exception was not supported by the other majority opinions in MB and AF. It was neither adopted by the majority nor part of the ratio of that decision. Subsequent references in AE [2008] EWHC 132 (Admin) and AN [2008] EWHC 372 (Admin) did not provide authoritative support.

4. Article 6 is concerned with procedural fairness, not merely with whether the substantive result is correct. A person is entitled to a fair hearing even if the court considers that the person is guilty or has no realistic answer. Accordingly, where the Secretary of State relies on the substance of closed allegations and evidence, that substance must be disclosed to enable an effective challenge. The court rejected the proposed exception.

5. Subject to appeal, the Secretary of State was put to her election whether to disclose further allegations or evidence. A further hearing was required after the Court of Appeal’s decision to determine the future of the proceedings.

• House of Lords: In MB and AF [2007] UKHL 47, the issue of Article 6 compliance was remitted to the Administrative Court.
• High Court (Administrative Court): The present court determined that the proposed exception did not form part of the law and directed that the Secretary of State elect whether to make further disclosure.