Secretary of State for the Home Department v AF & Anor

The House considered whether section 3(10) hearings under the Prevention of Terrorism Act 2005, in which closed material is relied on and special advocates are used, complied with the right to a fair hearing under article 6 ECHR as applied by the Human Rights Act 1998. The court held that, in light of the Grand Chamber's decision in A v United Kingdom, a controlled person must be given sufficient information about the allegations against him to enable him to give effective instructions to his special advocate. Where the open material consists only of general assertions and the decision rests solely or to a decisive degree on closed material, article 6 will not be satisfied.

Accordingly the House read down the statutory scheme, consistent with its earlier approach in MB, so that closed material may not be relied on where withholding it would be incompatible with the right to a fair hearing. The appeals were allowed and the cases were remitted to the trial judges for reconsideration in accordance with these principles (noting that in each of these three cases the required disclosure had not been made).

The appellants (AF, AN and AE) were subject to non-derogating control orders made under section 2 of the Prevention of Terrorism Act 2005. Each order imposed substantial restrictions and was confirmed following adjudication under the section 3(10) procedure. The appellants challenged the procedure on the ground that the Secretary of State and the confirming judges had relied decisively on closed material that had not been disclosed, even in gist form, to the controlled persons; special advocates had been appointed but could not take instructions after seeing closed material.

The appeals raised whether article 6, read with the Human Rights Act 1998, required disclosure of the gist of the case to the controlled person so as to permit effective instruction of the special advocate and an effective challenge. The House reviewed the domestic authorities (including its own decision in Secretary of State for the Home Department v MB), the procedure under the PTA and Civil Procedure Rule Part 76, and the Grand Chamber's judgment in A v United Kingdom (Application No 3455/05).

The court framed the issues as (i) what minimum disclosure is required for a fair hearing where closed material is relied on, and (ii) whether the PTA and rules could be read down to conform with Convention requirements. Applying the Grand Chamber's judgment, the House held that the controlled person must be given sufficient information about the allegations to enable him to give effective instructions to his special advocate. If the open material is only general assertions and the decision depends solely or to a decisive degree on closed material, the article 6 requirement is not satisfied. The House therefore read down the PTA and remitted the three cases for further consideration because the necessary disclosure had not been provided.

Procedurally, the House declined to inspect closed material itself and based its decision on open arguments and the Strasbourg authority. The court emphasised that judges must consider whether any additional disclosure is essential to fairness and, if the Secretary of State will not disclose, must refuse to rely on the closed material (so quashing the order if it is decisive).

Appeal allowed. Applying the Grand Chamber's decision in A v United Kingdom, the House held that article 6 requires that where closed material is relied on the controlled person must be given sufficient information about the allegations to enable him to give effective instructions to his special advocate; where the open case contains only general assertions and the decision rests solely or to a decisive degree on closed material, the hearing is unfair. The PTA was read down accordingly and the cases were remitted for reconsideration because the required disclosure had not been made.

Appeal from the Court of Appeal [2008] EWCA Civ 1148; earlier proceedings included judgments at first instance (e.g. Stanley Burnton J [2008] EWHC 453 (Admin); Mitting J [2008] EWHC 372 (Admin); Silber J [2008] EWHC 132 (Admin), [2008] EWHC 585 (Admin)); the House had previously considered related principles in Secretary of State for the Home Department v MB [2007] UKHL 46. The Grand Chamber of the European Court of Human Rights delivered A v United Kingdom (Application No 3455/05) (19 February 2009), which was pivotal to the House's decision.