Secretary of State for the Home Department v AS

In control-order proceedings, fairness under Article 6 requires disclosure of sufficient information about the material allegations to enable the controlled person to give effective instructions to his representatives and special advocates. Disclosure is not required for every allegation or every item of supporting evidence. The judge must identify the material essential to establishing reasonable suspicion and the necessity of the order and its obligations. If necessary information cannot lawfully be disclosed, the relevant allegation or material cannot be relied upon. The cogency of closed material does not cure a failure to disclose information needed to advance a possible defence.

The Secretary of State sought a ruling on whether further disclosure to A.S. was required for a fair hearing concerning a non-derogating control order under the Prevention of Terrorism Act 2005. The central issue was the effect of the House of Lords decision in Secretary of State for the Home Department v AF [2009] UKHL 28 on disclosure in control-order proceedings, including material relevant to the necessity of particular obligations.

The respondent also argued that the open allegations lacked sufficient detail to permit meaningful instructions, including in relation to an alleged visit to a training camp in Afghanistan. The court addressed the general approach to disclosure and a specific issue concerning the translation and disclosure of Italian criminal proceedings.

1. Applicable disclosure standard. The court applied the leading speech in Secretary of State for the Home Department v AF [2009] UKHL 28. A controlled person must receive sufficient information about the material allegations to give effective instructions. General assertions cannot suffice where the case depends solely or decisively on closed material.
2. Scope in control-order proceedings. The relevant material concerns both the reasonable suspicion required to justify the order and the necessity of the order and each obligation. The court rejected an absolutist requirement to disclose every allegation. The judge must identify all significant material which could be essential to either element. Depending on the allegation, this may include timing, locations, alleged associates, movements and the broad circumstances of alleged terrorist activity.
3. Evidence and cogency. The distinction between allegations and evidence is not always technically useful. What matters is whether the material relied upon requires further information to enable effective instructions. If such disclosure is necessary, the strength of the undisclosed material is irrelevant, even if the judge considers that no answer to it is likely to succeed.
4. Limits on disclosure. The judge cannot order disclosure which would compromise national security or breach another legal restriction. The proper course is to rule that the allegation or material cannot be relied upon unless the required disclosure or gist is provided, leaving the Secretary of State to decide whether to disclose or discard it.
5. Practical procedure. At the initial 76.29 hearing the judge should consider the controlled person’s response to the open allegations and determine the minimum further information required. If the controlled person chooses not to provide instructions addressing information already disclosed, he cannot insist on further disclosure on the ground that the hearing is unfair.
6. Specific issue. An allegation of attendance at a training camp could require disclosure of when the attendance allegedly occurred, since the controlled person might advance an alibi or other positive explanation. The Secretary of State was obtaining a full translation of the Italian appellate judgment and would disclose it to the respondent’s representatives.

This was a first-instance determination in the Administrative Court. The judgment addressed the application of the House of Lords decision in Secretary of State for the Home Department v AF [2009] UKHL 28 to control-order hearings.