Human rights—Prevention of terrorism—Control orders

Queen’s Bench Division, Administrative Court
Stanley Burnton J
9 April 2008

Article 6 of the European Convention on Human Rights requires the substance of the secretary of state’s case on which she relies when making a control order under the Prevention of Terrorism Act 2005 to be disclosed to a respondent with no exception, if there is to be compliance with that article.
Tim Eicke and Kate Grange (instructed by the Treasury Solicitor) for the secretary of state.

Tim Otty QC, Zubair Ahmad and Tom Hickman (instructed by Middleweeks, Manchester) for the respondent.
Hugo Keith and Jeremy Johnson (instructed by the special advocates’ support office) as special advocates.

The respondent was made the subject of a non-derogating control order under s 3 of the Prevention of Terrorism Act 2005. The House of Lords (see [2007] UKHL 46, [2008] 1 All ER 657) remitted his case to the High Court to determine whether or not the proceedings complied with Art 6 of the European Convention on Human Rights. Insufficient of the closed allegations and evidence relied upon by the secretary of state were disclosed to enable the respondent to advance any effective challenge. The secretary of state relied on a passage in the judgment of Lord Brown in the decision in the House of Lords, namely that there was an exception to the general requirements of Art 6 if the court could feel quite sure that in any event no possible challenge could conceivably have succeeded.
The court decided that the respondent should have an opportunity to address that matter in open session, having concluded that subject to the availability of the exception, the right to a fair hearing would have been impaired (see [2008] EWHC 453 (Admin), [2008] All ER (D) 113 (Mar)). The question arose as to whether or not the statement of Lord Brown accurately
represented the law.

mr justice Stanley Burnton:

The issue was whether or not there was an
exception to the general requirements of Art 6 in cases in which the respondent had no conceivable challenge to the case of the secretary of state. The exception was formulated by Lord Brown as:

“Unless in these cases the judge can nevertheless feel quite sure that in any event no possible challenge could conceivably have succeeded (a difficult but not, I think, impossible conclusion to arrive at...), he would have to conclude that the making or, as the case may be, confirmation of an order would indeed involve significant injustice to the suspect. In short, the suspect in such a case would not have been accorded even ‘a substantial measure of procedural justice’.”

His lordship referred to the Court of Appeal’s decision in R v Botmeh [2001] All ER (D) 09 (Nov) and the consequent decision of the European Court of Human Rights in Botmeh and another v United Kingdom (App No 15187/03) [2007] All ER (D) 40 (Jun).
The facts of that case were a long way from this case. The undisclosed material was exculpatory, and included nothing of significance. The prosecution case had been disclosed to the defendants. The defendants’ counsel had been able to make submissions on the gist that was disclosed. In this case, everything of significance had been withheld from the claimant. Neither decision was authority for the exception.
His lordship further held that Lord Brown’s statement had not been approved by the other members of the majority of the Appellate Committee and therefore could not have formed part of the ratio of the case.
Neither AE [2008] EWHC 132 (Admin), [2008] All ER (D) 03 (Feb) nor AN [2008] EWHC 372 (Admin), [2008] All ER (D) 439 (Feb), both of which had referred to the exception, provided any further authority for it.

Substance

His lordship concluded that the exception confused procedure with substance. Article 6 was concerned with procedure, not substance. In asking for the purposes of compliance with Art 6 whether a party had suffered injustice, the injustice referred to his procedural rights, not to the question whether the result of the litigation was the right result. A guilty man was entitled to a fair trial. If the court was satisfied that the breach of Art 6 was without consequence, the question would arise whether or not the court’s decision should still stand: not every breach of Art 6
invalidated the decision of the court. But it did not follow from the fact that the result was the right one substantively that it was reached fairly.
If insignificant material was not disclosed to a respondent, no breach of Art 6 arose. In a case such as this, what was not disclosed was not
insignificant: it was the substance of the case.

A test such as that involved in Lord Brown’s exception was not found elsewhere in the law. If the exception was part of English law, there need be no open evidence or open hearing at all, since everything of significance would be considered in closed session. In ordinary civil litigation, a party might claim that there was no defence to his claim, or that the claim against him was unsustainable and not deserving of trial: but the other party was entitled to know the case and to be heard on that issue. An adversarial system required that both parties knew the substance of the case against them.

Last, the test was very difficult to apply. The court would have to use its imagination to conceive what defence or arguments the respondent might put forward if he knew the case and the evidence against him, in circumstances in which it did not know and would not discover what issues the respondent would raise if the allegations  had been disclosed to him.
Accordingly, Art 6 required the substance of the secretary of state’s case on which she relied to be disclosed to a respondent, with no exception.
The secretary of state would be put to her election as to whether or not she wished to disclose any further allegations or evidence.