QX v Secretary of State for the Home Department

In a review of obligations imposed under section 9 of the Counter-Terrorism and Security Act 2015, article 6 is satisfied if the claimant receives sufficient information about the allegations to give effective instructions. Purely general assertions cannot support a fair trial where the case depends solely or decisively on closed material. If one allegation is too broad, the court should remove it from consideration and assess whether the remaining open case can support the obligations. A section 9 review may address matters relevant to the continuing necessity and proportionality of the obligations, but cannot be used indirectly to challenge the original conditions for imposing the temporary exclusion order. Compatibility with article 6 must remain under active review as the evidence develops.

The claimant was subject to a temporary exclusion order after returning to the United Kingdom. Under section 9 of the Counter-Terrorism and Security Act 2015, he was required to report daily to a police station and attend weekly mentoring and theological appointments.

The Secretary of State relied partly on closed national security material. The claimant argued that an allegation concerning activities in the United Kingdom was too vague to permit effective instructions, and that the proceedings therefore breached article 6 of the Convention. The court had previously held that article 6 applied and that the disclosure principles in Secretary of State for the Home Department v AF (No 3) applied. The issue was whether the proceedings could presently proceed fairly on the material disclosed.

1. Present compatibility with article 6. The proceedings did not presently breach article 6. The allegation concerning the claimant’s activities in the United Kingdom was too broad, taken alone, to satisfy the disclosure standard in Secretary of State for the Home Department v AF (No 3). The court therefore removed that allegation from consideration.
2. Remaining open case. Following the approach in BM v Secretary of State for the Home Department, the court considered whether the remaining open material could support the Secretary of State’s case. It could. The claimant was alleged to have held a significant leadership role in an AQ-aligned group in Syria, to have made an ideological commitment to violent beliefs, and to have failed to engage with mentoring and theological measures. Those allegations were sufficiently intelligible to enable effective instructions and rebuttal.
3. Scope of the review. A review of section 9 obligations could not be used to challenge, indirectly, the Secretary of State’s assessment that the claimant had been involved in terrorism-related activity abroad or that a temporary exclusion order was necessary. It could, however, address aspects of the national security case relevant to whether the obligations remained necessary and proportionate.
4. The claimant could argue at the substantive review that compulsory attendance without compulsory engagement was not rationally connected to rehabilitation and was therefore unnecessary or disproportionate. Those merits issues were not determined at this preliminary stage.
5. The court would keep disclosure under review and would ensure that the Secretary of State did not rely solely or decisively on closed allegations. The substantive review was adjourned by consent pending consequential case-management matters.

The judgment describes an earlier preliminary judgment in the same proceedings, [2020] EWHC 1221 (Admin), which held that article 6 applied and that the claimant was entitled to disclosure in accordance with Secretary of State for the Home Department v AF (No 3). The present judgment determined the further preliminary issue of current compatibility with article 6.