West Law Report

Ensuring compatibility with fair trial rights

Posted in Times Law Report by mrkooenglish on November 16, 2008

From The Times
October 29, 2008
Ensuring compatibility with fair trial rights

Court of Appeal
Published October 29, 2008
Secretary of State for the Home Department v AF
Same v AM
Same v AN
Same v AE
Before Sir Anthony Clarke, Master of the Rolls, Lord Justice Waller and Lord Justice Sedley
Judgment October 17, 2008

While as much information as possible, without imperilling national security, should be disclosed to a person subject to a control order, it was arguable that there was no irreducible minimum the nondisclosure of which would automatically make a trial unfair.

The Court of Appeal so held, Lord Justice Sedley dissenting, in giving guidance on the approach to hearings under section 3(10) of the Prevention of Terrorism Act 2005 to determine whether the Secretary of State for the Home Department had reasonable grounds for suspecting a controlled person was or had been involved in terrorism-related activities and the compatibility of those hearings with the right to a fair trial enshrined in article 6 of the European Convention of Human Rights. The decision of the House of Lords in Secretary of State for the Home Department v MB (No 1)(The TimesNovember 6, 2007; [2008] 1 AC 440) had given rise to different interpretations by first-instance judges.

The Court of Appeal: (i) allowed the appeals of the Home Secretary from Mr Justice Stanley Burnton in AF ([2008] EWHC 689 (Admin)) and Mr Justice Mitting in AN ([2008] EWHC 372 (Admin)) and remitted those cases for reconsideration by the High Court; (ii) dismissed AE’s appeal from Mr Justice Silber ([2008] EWHC 132 (Admin)) and ([2008] EWHC 585 (Admin)), and (iii) dismissed the Home Secretary’s appeal from Mr Justice Sullivan’s closed judgment in AM, in relation to, inter alia, whether the section 3(10) hearings infringed his article 6 right. The court granted permission to appeal to the House of Lords on article 6 issues in AE, AF and AN.

Mr Philip Sales, QC, Mr Nicholas Moss, Miss Cecilia Ivimy, Mr Andrew O’Connor and Ms Kate Grange for the Home Secretary. Lord Pannick, QC, Mr Timothy Otty, QC, Mr Zubair Ahmad and Mr Tom Hickman for AF; Mr Timothy Otty, QC and Ms Kate Markus for AM; Mr Tim Owen, QC and Ms Frances Webber for AN; Mr Owen Davies, QC and Mr Ali Nanseen Bajwa for AE. Mr Hugo Keith and Mr Jeremy Johnson, special advocates in AF; Mr Mohammed Khamisa, QC and Miss Shaheen Rahman, special advocates in AM; Mr Andrew Nicol, QC and Mr Paul Bowen, special advocates in AN; Mr Michael Supperstone, QC and Mr Tom de la Mare, special advocates in AE. Mr Michael Fordham, QC, Ms Shaheed Fatima and Mr Tom Richards for JUSTICE, intervening by written submissions.

THE MASTER OF THE ROLLS and LORD JUSTICE WALLER said that the principal issue was what principles governed the question whether, in the light of the House’s decision in MB, the controlled person had had a fair hearing which complied with article 6.

Their Lordships concluded:

1The question whether the section 3(10) hearing infringed the controlled person’s rights under article 6 was whether, taken as a whole, the hearing was fundamentally unfair to the controlled person, in that there was significant injustice, or that he was not accorded a substantial measure of procedural justice, or the very essence of his right to a fair hearing was impaired. More broadly, whether the effect of the process was that the controlled person was exposed to significant injustice.

2 All proper steps ought to be made to provide the controlled person with as much information as possible, both of allegation and evidence, if necessary by appropriate gisting.

3 Where for reasons of national security, the full allegations and evidence were not provided at the outset, a special advocate had to be provided to the controlled person. In such a case the following principles applied:

4There was no principle that a hearing would be unfair for lack of open disclosure of an irreducible minimum of allegation or evidence to the controlled person. Alternatively, if there was, the irreducible minimum could, depending on the circumstances, be met by disclosure of as little information as was provided in AF, which was very little indeed.

5 Whether a hearing would be unfair depended on all the circumstances, including the nature of the case, what steps had been taken to explain to the controlled person the detail of the allegations so that he could anticipate what the material in support might be, what steps had been taken to provide a summary of the supporting closed material without revealing names, dates or places, the nature and content of the material withheld, how effectively the special advocate was able to challenge it on the controlled person’s behalf and what difference its disclosure would or might make.

6 In considering whether open disclosure to the controlled person would have made a difference to whether there were reasonable grounds for suspicion that he was or had been involved in terrorist-related activity, the court had to have fully in mind the problems for the controlled person and the special advocates and take account of all the circumstances of the case, including what, if any, information was openly disclosed and how effective the special advocates were able to be; the correct approach to, and the weight to be given to any individual factor would depend upon the particular circumstances.

7There were no rigid principles; what was fair was essentially a matter for the judge, with whose decision the Court of Appeal would very rarely interfere.

LORD JUSTICE SEDLEY, dissenting, said that the question was whether, in a case such as AF, where the judge took the view that he could be sure that the evidence, albeit wholly undisclosed, was unanswerable, the law regarded the requirements of a fair hearing as satisfied. For reasons both principled and pragmatic, Mr Justice Stanley Burnton and Mr Justice Mitting were right to hold that the law did not do so.

Solicitors: Treasury Solicitor. Middleweeks, Manchester; Arani & Co; Birnberg Peirce; Chambers. All special advocates instructed by Special Advocates Support Office, Treasury Solicitor. Mr Roger Smith.

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