Secretary of State for the Home Department (Respondent) v AF (Appellant) (FC) and another (Appellant) and one other action

Fair-hearing minimum. A court reviewing a non-derogating control order may receive closed material and use a special advocate. However, article 6 requires disclosure of sufficient information about the allegations to enable the controlled person to give effective instructions and challenge them. Full evidence, detail and sources need not be disclosed if the open allegations are sufficiently specific. Purely general assertions cannot sustain an order where the case rests solely or decisively on closed material, regardless of its apparent cogency.

The statutory scheme must be read subject to that irreducible requirement. If national-security interests prevent the necessary disclosure, the undisclosed material cannot support the order. A supposed absence of any conceivable answer is no exception.

AF, AN and AE were subject to non-derogating control orders made under the Prevention of Terrorism Act 2005. Each challenged reliance on closed material that had been disclosed to a special advocate but not to him. In each case the open allegations disclosed little or none of the essential case supporting the Secretary of State's suspicion of terrorism-related activity.

Following an earlier remittal, the Administrative Court held in AF's case that the procedure was generally ineffective without further disclosure, but rejected a possible exception for an apparently unanswerable case: [2008] EWHC 453 (Admin); [2008] EWHC 689 (Admin). Mitting J required disclosure of the gist of significant allegations against AN: [2008] EWHC 372 (Admin). Silber J upheld AE's order after assessing the proceedings as a whole: [2008] EWHC 132 (Admin); [2008] EWHC 585 (Admin).

The Court of Appeal, by a majority, held that article 6 imposed no invariant minimum disclosure requirement and that fairness depended on all the circumstances: [2008] EWCA Civ 1148; [2009] 2 WLR 423. The central issue was whether a fair hearing required disclosure sufficient to permit an effective challenge, even where a judge considered the closed case unanswerable.

Disposition. The House unanimously allowed all three appeals and remitted each case to the appropriate first-instance judge. None of the appellants had received the disclosure required for a fair hearing.

1. Per Lord Phillips of Worth Matravers, in the leading speech accepted by every member of the Committee, the Grand Chamber's judgment in A and others v United Kingdom [2009] ECHR 301 definitively resolved the disclosure issue. Although that judgment concerned article 5(4) and detention, the minimum disclosure requirement applied equally to control-order proceedings governed by article 6. The serious restrictions ordinarily imposed by such orders supplied no principled basis for a lower standard.

2. Per Lord Phillips, the controlled person must receive sufficient information about the allegations to give effective instructions to the special advocate. The evidence's detail and sources may remain closed where the disclosed allegations are sufficiently specific to permit an answer. Where the open case consists only of general assertions and the decision rests solely or decisively on closed material, article 6 is not satisfied, however cogent that material appears.

3. Per Lord Phillips, fairness concerns the opportunity to influence the decision as well as the accuracy of its result. There is therefore no exception for a case in which the judge believes that disclosure could make no difference. Lord Hope of Craighead described effective challenge as the core irreducible minimum. Baroness Hale of Richmond likewise emphasised that the ability to challenge the case is decisive.

4. Per Lord Phillips, the special advocate procedure remains an important safeguard but cannot replace instructions about undisclosed essential allegations. The judge must decide what allegations and any other material must be disclosed to make the hearing fair. Full disclosure remains unnecessary where a sufficiently particularised allegation permits an effective response.

5. The reading-down of the Prevention of Terrorism Act 2005 adopted in Secretary of State for the Home Department v MB and AF [2007] UKHL 46 was left in place. The statutory power to withhold material operates subject to the controlled person's right to a fair trial. If the Secretary of State will not make essential disclosure, the court must exclude the material from consideration or prevent reliance upon it. If the material is crucial, the order must be quashed.

6. Lord Hoffmann concurred because the United Kingdom was obliged to accept the Grand Chamber's interpretation, although he considered its rigid rule mistaken. Lord Scott of Foscote added that the common law independently required a real opportunity to rebut known allegations. Lord Hope and Lord Brown of Eaton-under-Heywood considered that final appellate review should ordinarily address open questions of principle without inspecting closed material.

1. House of Lords: In Secretary of State for the Home Department v AF and others [2009] UKHL 28 , the House unanimously allowed the three appeals and remitted each case for reconsideration under the correct disclosure standard.
2. Court of Appeal: By a majority, the court held that no invariant minimum disclosure was required, dismissed AE's appeal, and remitted AF's and AN's cases after allowing the Secretary of State's challenges: [2008] EWCA Civ 1148 ; [2009] 2 WLR 423 . Sedley LJ dissented on the essential disclosure issue.
3. Administrative Court following the earlier remittal: Stanley Burnton J held that AF generally required further disclosure and rejected a “makes no difference” exception: [2008] EWHC 453 (Admin) ; [2008] EWHC 689 (Admin) . Mitting J required disclosure of the gist of significant allegations against AN: [2008] EWHC 372 (Admin) . Silber J upheld AE's order: [2008] EWHC 132 (Admin) ; [2008] EWHC 585 (Admin) .
4. Earlier House of Lords proceedings: In Secretary of State for the Home Department v MB and AF [2007] UKHL 46 ; [2008] 1 AC 440, the House read down the statutory scheme to preserve fair-hearing requirements and remitted AF's case. The original section 3(10) decision was [2007] EWHC 651 (Admin) .