Secretary of State for the Home Department v MB

This is an appeal by the Secretary of State, with the permission of the judge, against an order made by Sullivan J on 17 May 2006. By that order he declared:

“Pursuant to section 4(2) of the Human Rights Act 1998 that the procedures in section 3 of the Prevention of Terrorism Act 2005, relating to the supervision by the Court of the non-derogating Control Orders made by the Secretary of State are incompatible with the Respondent’s rights to a fair hearing under Article 6(1) of the European Convention on Human Rights”

The Secretary of State challenges this declaration of incompatibility.

The Prevention of Terrorism Act 2005 (‘PTA’) empowers the Secretary of State to make control orders that place obligations and restrictions on terrorist suspects. On 5 September 2005 he made a control order against the respondent MB. It is common ground that this control order interfered with MB’s civil rights and that, if the PTA is to comply with the European Convention on Human Rights (‘the Convention’), it must be possible for MB to challenge the validity of the control order by legal proceedings which satisfy the requirements of Article 6 of the Convention.

Section 3 of the PTA makes provision for supervision by the court of the type of control order made against the respondent. Section 3 requires the court, when performing this function, to consider whether any of the decisions of the Secretary of State in relation to the making of the control order and its content was flawed. In so doing the court is required to apply the principles applicable on an application for judicial review. The court is also required to follow a special procedure, involving closed material and the use of a Special Advocate, that is similar to the procedure applicable to proceedings before the Special Immigration Appeals Commission (‘SIAC’).

Before Sullivan J the debate focussed on the question of whether proceedings pursuant to section 3 of the PTA satisfied the requirements of Article 6. The debate did not extend to the significance of section 11 (2) of the PTA, which provides,

“The court is the appropriate tribunal for the purposes of section 7 of the Human Rights Act 1998 (c. 42) in relation to proceedings all or any part of which call a control order decision or derogation matter into question”

Astonishingly this provision was, it seems, overlooked both by counsel and the judge.

Before this court it seems unlikely that anything has been overlooked. We have had placed before us photocopies of some 150 authorities. Such an approach can make it more difficult to see the wood for the trees that have been sacrificed to provide the paper for the photocopying exercise.

The object of the PTA is apparent from the short title to the Act:

“An Act to provide for the making against individuals involved in terrorism-related activity of orders imposing obligations on them for purposes connected with preventing or restricting their further involvement in such activity; to make provision about appeals and other proceedings related to such orders; and for connected purposes.”

The PTA seeks to achieve this object by empowering the Secretary of State to impose control orders on those suspected of being terrorists. Section 1(1) defines a control order:

“In this Act ‘control order’ means an order against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism.”

The PTA makes provision for two different types of control order. The more restrictive is a ‘derogating control order’. This is a control order which imposes on the suspect one or more ‘derogating obligations’. A derogating obligation is an obligation on an individual which ‘is incompatible with his right to liberty under Article 5 of the Human Rights Convention’ but which falls within the ambit of an order designating a derogation from the Convention pursuant to section 14(1) of the Human Rights Act 1998. No such order has been made and it is not suggested that the restrictions imposed by the control order against MB are incompatible with his rights under Article 5.

The other type of control order is one which is not incompatible with the suspect’s rights under Article 5. This is described as a ‘non-derogating control order’. The control order with which this appeal is concerned falls within this type. There is a stark contrast between the statutory regime which applies to non-derogating control orders and that which applies to derogating control orders. Sullivan J set out in his judgment the relevant statutory provisions and rules of court and we shall borrow freely from his judgment in repeating that exercise.

Section 2 of the PTA deals with the making of non-derogating control orders. Subsection (1) provides that:

“The Secretary of State may make a control order against an individual if he:

(a)

has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and

(b)

considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual.”

“Terrorism-related activity” is defined in subsection 1(9) as any one or more of the following:

“(a)

the commission, preparation or instigation of acts of terrorism;

(b)

conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so;

(c)

conduct which gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so;

(d)

conduct which gives support or assistance to individuals who are known or believed to be involved in terrorism-related activity; and for the purposes of this subsection it is immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism generally.”

The obligations that may be imposed by a non-derogating control order are:

“… any obligations that the Secretary of State … considers necessary for purposes connected with preventing or restricting involvement by that individual in the terrorism activity.”

(see subsection 1(3)).

Subsection 1(4) sets out a lengthy list of obligations which may be included in a control order. We shall in due course set out the obligations in the control order made against MB. It is common ground that these fell within subsection 1(4) and that they were not incompatible with MB’s Article 5 rights. Thus the control order made against MB was a non-derogating control order.

Subsection 1(9) provides:

“It shall be immaterial, for the purposes of determining what obligations may be imposed by a control order made by the Secretary of State, whether the involvement in terrorism-related activity to be prevented or restricted by the obligations is connected with matters to which the Secretary of State’s grounds for suspicion relate.”

The court’s supervisory role in relation to a non-derogating control order is set out in section 3 of the PTA. The relevant provisions are as follows:

“(1)

The Secretary of State must not make a non-derogating control order against an individual except where--

(a)

having decided that there are grounds to make such an order against that individual, he has applied to the court for permission to make the order and has been granted that permission;

…

(2)

Where the Secretary of State makes an application for permission to make a non-derogating control order against an individual, the application must set out the order for which he seeks permission and –

(a)

the function of the court is to consider whether the Secretary of State’s decision that there are grounds to make that order is obviously flawed;

(b)

the court may give that permission unless it determines that the decision is obviously flawed; and

(c)

if it gives permission, the court must give directions for a hearing in relation to the order as soon as reasonably practicable after it is made.”

…

(5)

The court may consider an application for permission under subsection (1)(a) … --

(a)

in the absence of the individual in question;

(b)

without his having been notified of the application or reference; and

(c)

without his having been given an opportunity (if he was aware of the application or reference) of making an representations to the court;

but this section is not to be construed as limiting the matters about which rules of court may be made in relation to the consideration of such an application or reference.

…

(7)

The directions given under subsection 2(c) … must include arrangements for the individual in question to be given an opportunity within 7 days of the court’s giving permission or (as the case may be) making its determination on the reference to make representations about –

(a)

the directions already given; and

(b)

the making of further directions.

(8)

and (9) [urgent cases]

(10)

On a hearing in pursuance of directions under subsection (2)(c) … the function of the court is to determine whether any of the following decisions of the Secretary of State was flawed –

(a)

his decision that the requirements of section 2(1)(a) and (b) were satisfied for the making of the order; and

(b)

his decisions on the imposition of each of the obligations imposed by the order.

(11)

In determining –

(a)

what constitutes a flawed decision for the purposes of subsection (2) … or

(b)

the matters mentioned in subsection (10),

the court must apply the principles applicable on an application for judicial review.

(12)

If the court determines, on a hearing in pursuance of directions under subsection (2)(c) … that a decision of the Secretary of State was flawed, its only powers are –

(a)

power to quash the order;

(b)

power to quash one or more obligations imposed by the order; and

(c)

power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes.

(13)

In every other case the court must decide that the control order is to continue in force.”

The role of the court in respect of a derogating control order is set out in section 4. This order is made, not by the Secretary of State, but by the court on application by the Secretary of State. That application is made at a preliminary hearing, which may be heard in the absence of, and without notice to, the suspect. Subsection 4(3) provides:

“(3)

At the preliminary hearing, the court may make a control order against the individual in question if it appears to the court-

(a)

that there is material which (if not disproved) is capable of being relied on by the court as establishing that the individual is or has been involved in terrorism-related activity;

(b)

that there are reasonable grounds for believing that the imposition of obligations on that individual is necessary for purposes connected with protecting members of the public from a risk of terrorism;

(c)

that the risk arises out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention; and

(d)

that the obligations that there are reasonable grounds for believing should be imposed on the individual are or include derogating obligations of a description set out for the purposes of the designated derogation in the designation order.”

The preliminary hearing is followed by a full hearing at which the court may confirm, modify or revoke the order. Subsection 4(7) provides:

“(7)

At the full hearing, the court may confirm the control order (with or without modifications) only if-

(a)

it is satisfied, on the balance of probabilities, that the controlled person is an individual who is or has been involved in terrorism-related activity;

(b)

it considers that the imposition of obligations on the controlled person is necessary for purposes connected with protecting members of the public from a risk of terrorism;

(c)

it appears to the court that the risk is one arising out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention; and

(d)

the obligations to be imposed by the order or (as the case may be) by the order as modified are or include derogating obligations of a description set out for the purposes of the designated derogation in the designation order.”

Section 2(4) provides that a non-derogating control order has effect for 12 months and may be renewed on one or more occasion. Section 4(8) provides that a derogating control order ceases to have effect after 6 months, unless renewed.

Section 7 provides that a controlled person can apply to have a non-derogating control order revoked or modified if he considers that there has been a change of circumstances affecting the order. The Secretary of State is also given power to revoke or modify such an order. The section further makes provision permitting the Secretary of State or the controlled person to apply to the court for the revocation or modification of a derogating control order.

The schedule to the Act enables special rules of court to be made in respect of control order proceedings. Paragraph 4(3) states that such rules must secure—

“(a)

that in control order proceedings and relevant appeal proceedings the Secretary of State is required (subject to rules made under the following paragraphs) to disclose all relevant material;

(b)

that the Secretary of State has the opportunity to make an application to the relevant court for permission not to disclose relevant material otherwise than to that court and persons appointed under paragraph 7;

(c)

that such an application is always considered in the absence of every relevant party to the proceedings and of his legal representative (if he has one);

(d)

that the relevant court is required to give permission for material not to be disclosed where it considers that the disclosure of the material would be contrary to the public interest;

(e)

that, where permission is given by the relevant court not to disclose material, it must consider requiring the Secretary of State to provide the relevant party and his legal representative (if he has one) with a summary of the material;

(f)

that the relevant court is required to ensure that such a summary does not contain information or other material the disclosure of which would be contrary to the public interest.

(g)

that provision satisfying the requirements of sub-paragraph (4) applies where the Secretary of State does not have the relevant court’s permission to withhold relevant material from a relevant party to the proceedings or his legal representative (if he has one), or is required to provide a summary of such material to that party or his legal representative.

(4)

The provision that satisfies the requirements of this sub-paragraph is provision which, in a case where the Secretary of State elects not to disclose the relevant material or (as the case may be) not to provide the summary, authorises the relevant court –

(a)

if it considers that the relevant material or anything that is required to be summarised might be of assistance to a relevant party in relation to a matter under consideration by that court; and

(b)

in any other case, to ensure that the Secretary of State does not rely in the proceedings on the material or (as the case may be) on what is required to be summarised.

(5)

In this paragraph ‘relevant material’, in relation to any proceedings, means –

(a)

any information or other material that is available to the Secretary of State and relevant to the matters under consideration in those proceedings; or

(b)

the reasons for decisions to which the proceedings relate.”

The special rules are contained in Part 76 of the CPR. Rule 76.2 requires the court to give effect to the overriding objective in such a way as to “ensure that information is not disclosed contrary to the public interest.” For the purposes of Part 76, the public interest is defined by Rule 76.1(4):

“… disclosure is made contrary to the public interest if it is made contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest."

Rule 76.22 enables the court to conduct hearings in private and to exclude the controlee and his representatives from all or part of the hearing. Rule 76.24 describes the functions of the Special Advocate. Rule 76.26 modifies the general rules of evidence and enables the court to "receive evidence that would not but for this rule be admissible in a court of law": see rule 76.26(4).

Rules 76.28 and 76.29 set out the procedure for dealing with closed material. In summary, the Secretary of State must apply to the court for permission to withhold the closed material from the person controlled or his legal representatives and file a statement explaining his reasons for withholding that material. The enclosed material is then considered by the Special Advocate. If the Special Advocate challenges the need to withhold all or any of the closed material, the court must arrange the hearing to determine the issue, unless the Secretary of State and Special Advocate agree that the court may decide the issue without a hearing.

Rule 76.29(6) states that:

On 1 September 2005 the Secretary of State applied to the court without notice to MB under section 3(1)(a) of the PTA for permission to make a non-derogating control order against MB. On the following day Ouseley J granted that permission under section 3(2)(b) of the PTA, subject to some minor amendments that he required by way of clarification. The obligations imposed by the order were as follows:

“ (1) You will reside at [address given] ('the residence') and shall give the Home Office at least 7 days prior notice of any change of residence.

(2)

You shall report in person to your local police station (the location of which will be notified in writing to you at the imposition of this order) each day at a time to be notified in writing by your contact officer, details to be provided in writing upon service of the order.

(3)

You must surrender your passport, identity card or any other travel document to a police officer or persons authorised by the Secretary of State within 24 hours. You shall not apply for or have in your possession any passport, identity card, travel document(s) or travel ticket which would enable you to travel outside the UK.

(4)

You must not leave the UK.

(5)

You are prohibited from entering or being present at any of the following:-

(a)

any airport or sea port;

(b)

any part of a railway station that provides access to an international rail service.

(6)

You must permit entry to police officers and persons authorised by the Secretary of State, on production of identification, at any time to verify your presence at the residence and/or to ensure that you can comply with and are complying with the obligations imposed by the control order. Such monitoring may include but is not limited to:-

(a)

a search of the residence;

(b)

removal of any item to ensure compliance with the remainder of the obligations in these orders; and

(c) the taking of your photograph.”

The application for permission to make the order was supported by a statement made on behalf of the Secretary of State. This included the following explanation of the need to impose the obligations:

“4.

In considering what obligations to impose on MB, the Secretary of State has taken into account all the information before him, including the specific terrorism-related activity that he suspects MB was or is involved in. In addition, he has taken into account the known personal and family circumstances of MB. He is a single male and his immediate family are resident in the UK. The obligations will restrict his ability to travel outside the United Kingdom. However, given the seriousness of the activity that MB has been and is suspected of, the Secretary of State is satisfied that the proposed obligations are necessary to protect members of the public from a risk of terrorism, and that where the obligations interfere with MB's Convention rights, they are proportionate and the least intrusive measure needed to prevent and/or restrict involvement in that terrorism-related activity

5.

MB currently resides with his adult sister. Consideration has been given to any proposed obligation that would or might interfere with his or his sister's Convention rights and whether such interferences outweigh or reduce to any extent the proportionality of each obligation. Insofar as the proposed obligations do still interfere with his or his sister's Convention rights, the Secretary of State considers such interferences to be justified and proportionate, bearing in mind the legitimate aim sought of preventing and restricting terrorism-related activity.”

The material delivered to the court included an open statement and supporting documents dated August 2005, a closed statement and supporting documents and an application for permission to withhold that closed material together with an outline summary of the reasons why the Secretary of State contended that the closed material should be withheld.

The open statement explained the object of the obligations imposed on MB. They were to prevent him from travelling to Iraq to fight against the coalition forces. It described how on 1 March 2005 MB had been stopped from boarding a flight to Syria and on 2 March 2005 he had been stopped from boarding a flight to Yemen. The explanations that he had given for his proposed travel had not been convincing. His passport had been confiscated. This, of itself, fell far short of demonstrating an intention to join the terrorists fighting in Iraq. The open statement asserted that MB was an Islamic extremist and that the Security Service considered that he was involved in terrorism-related activities as defined in section 1(8) of the PTA. No details were given of this assertion.

In response to the control order, the respondent served a lengthy witness statement dated 6 January 2006, denying that he had any intentions to go to Iraq; explaining why he wished to go to Syria or, if he was prevented from going to Syria, to the Yemen; giving his account of the interviews at Manchester airport on 1 March 2005 and at Heathrow on the following day, and explaining the adverse effects of the obligations placed upon him by the order.

The Secretary of State responded on 17 February 2006 with a second open statement and supporting documents and a second closed statement and supporting documents. Shortly before the hearing the respondent served a second witness statement and his mother also served a witness statement

The second open statement and the supporting documents added little to the case against MB. It is plain that the justification for the obligations imposed on MB lay in the closed material. Mr Supperstone QC, who was appointed together with Miss Farbey as Special Advocate, did not challenge the Secretary of State's application to withhold the closed material so there was no need for a hearing under Rule 76.29. Mr Supperstone also agreed with Mr Eicke, who appeared with Mr Burnett QC on behalf of the Secretary of State, that it would not be possible to serve a summary of the closed material on MB or his legal advisers which would not contain information or other material the disclosure of which would be contrary to the public interest. No summary of the closed evidence was therefore served on the respondent.

Sullivan J read the closed material. He endorsed the conclusion of counsel that it would not be possible to serve a summary of this which complied with paragraph (b) in Rule 76.29(6), so that MB was not provided with even a summary of the closed evidence against him.

At the end of his judgment Sullivan J held that he had no option but to order that the control order remain in force. As we shall explain we consider that in reaching that conclusion he applied the wrong test in law. The consequences of this will have to be explored with counsel. We have not, as yet, found it necessary ourselves to consider the closed material or to seek assistance from Mr Supperstone. This judgment is concerned solely with whether Sullivan J was correct to make a declaration of incompatibility.

At the end of his lengthy judgment, Sullivan J said this:

“96.

Standing back and looking at the overall picture, there can be only one conclusion. To say that the Act does not give the respondent in this case, against whom a non-derogating control order has been made by the Secretary of State, a fair hearing in the determination of his rights under Article 8 of the Convention would be an understatement. The court would be failing in its duty under the 1998 Act, a duty imposed upon the court by Parliament, if it did not say, loud and clear, that the procedure under the Act whereby the court merely reviews the lawfulness of the Secretary of State's decision to make the order upon the basis of the material available to him at that earlier stage are conspicuously unfair. The thin veneer of legality which is sought to be applied by section 3 of the Act cannot disguise the reality. That controlees' rights under the Convention are being determined not by an independent court in compliance with Article 6.1, but by executive decision-making, untrammelled by any prospect of effective judicial supervision.”

There were four strands in the reasoning that led Sullivan J to express this robust conclusion:

It is important in this case to distinguish between substantive and procedural rights. Article 6.1 of the Convention provides:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

Article 13 of the Convention provides:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 6, but not Article 13, has been incorporated as a ‘Convention right’ by the Human Rights Act 1998 (‘the HRA’). Partial effect is, however, given to the obligations imposed by Article 13 by sections 6 to 9 of the HRA. The effect is only partial because, if legislation is incompatible with a Convention right, the only remedy available is a declaration of incompatibility.

It is arguable that, by giving a remedy in civil proceedings for infringement of Convention rights, the HRA has converted those rights into civil rights, so that Article 6 applies to them. Mr Burnett has not accepted this analysis and has rightly submitted that it is not necessary for us to decide whether it is correct as it is conceded that the control order adversely affects MB’s civil rights and thus that these proceedings involve the determination of his civil rights and obligations.

Article 6 is concerned with procedural fairness, not the fairness of substantive law. If an English statute restricts a civil right by reference to criteria which operate in a manner which is unfair, it will not follow that legal proceedings that give effect to that statute will be unfair so as to infringe Article 6.

If an English statute is incompatible with a Convention right this is likely to result, not merely in an infringement of the relevant right, but in an infringement of Article 13 of the Convention. It will not follow, however, that it involves any breach of Article 6.

At paragraph 25 of his judgment Sullivan J said this:

“The Act makes it clear that the court's role is purely supervisory: see sub-sections 3(10) and (11). Thus, the court is not itself deciding whether, on the totality of the evidence available as at the date of hearing, the criteria in paragraphs (a) and (b) in section 2(1) are met. It is judicially reviewing the Secretary of State's decisions made on or shortly before 1st September 2005 that the criteria in paragraphs (a) and (b) of section 2(1) were met and that the obligations imposed by the order were necessary under section 1(3). It follows that the court must consider whether those decisions of the Secretary of State were "flawed" upon the basis of the material that was put before the Secretary of State at that time.”

The judge understood that this observation accorded with the submissions advanced on behalf of the Secretary of State – see paragraph 77 of his judgment. Mr Burnett QC, who appeared for the Secretary of State both below and before us assured us that this was not so. At all events, before us, he submitted that the judge’s conclusion as to the limited scope of the court’s review of the Secretary of State’s decision was unsound. His submissions to us on this point fell into two parts. First he submitted that, given the appropriate purposive construction, section 3(10) required the court to review the Secretary of State’s decision having regard to the evidence before the court at the time of conducting the review. Secondly he submitted that section 11(2) of the PTA required the court to consider whether, as at the time of the review, there was any interference with the suspect’s human rights.

It is convenient to start with section 11(2). This section must be interpreted, so far as possible, in a manner which is compatible with the Convention rights – see section 3 of the HRA. It seems to us clear that section 11(2) requires the court, in so far as it is able, to give effect to MB’s Convention rights having regard to the state of affairs that exists at the time that the court reaches its decision. As Lord Nicholls of Birkenhead explained in Wilson v First County Trust [2004] 1 AC 816 at paragraph 24:

“The court, required by section 6(1) to act in a way compatible with Convention rights, must have regard to the facts as they are at the time when it makes its order.”

Section 3(10) cannot be read so as to restrict the court, when addressing a human rights issue, to a consideration of whether, when he made his initial decision, the Secretary of State had reasonable grounds for doing so.

In the present case it is common ground that the control order interferes with MB’s Article 8 rights. It follows that Sullivan J should have considered the validity of the control order having regard to the position as it was at the time when he made his decision.

It remains theoretically possible, where a control order does not interfere with any Convention right, that section 3(10) could be interpreted so as to restrict the court’s review to the question of whether, when he took the decision to make the control order, the Secretary of State had reasonable grounds for doing so. That, indeed, is the natural meaning of the wording which speaks of determining whether any of the decisions of the Secretary of State was flawed. There are, however, cogent reasons for not giving section 3(10) such an interpretation.

It would be manifestly unsatisfactory that the court should have to apply a different approach to reviewing a control order depending upon whether or not it interfered with a Convention right. Furthermore if section 3(10) only permits the court to consider whether the Secretary of State’s decision to make the control order was properly reached at the time that he made it, it will not, as Article 6 requires, enable the controlled person to have a fair review of his civil rights as they are at the time that the review is carried out.

It is implicit from the provisions of section 7 and would, we think be implicit even without those provisions, that it is the duty of the Secretary of State to keep the decision to impose a control order under review, so that the restrictions that it imposes, whether on civil rights or Convention rights, are no greater than necessary. A purposive approach to section 3(10) must enable the court to consider whether the continuing decision of the Secretary of State to keep the order in force is flawed.

Such an approach accords with the approach of this court under ordinary principles of judicial review, see R v Secretary of State for the Home Department ex p Turgut [2001] 1 All ER 719 where Schiemann LJ said:

“If an applicant for permission to move for judicial review claims that the Secretary of State’s decision is vitiated by some form of illegality he will file evidence to that effect. The Court will not shut out evidence which is relevant to the issues. Indeed, it may order disclosure of evidence necessary for disposing fairly of the application. The evidence is not strictly limited to evidence which was or should have been before the Secretary of State at the time of the decision.”

For these reasons we consider that section 3(10) can and should be ‘read down’ so as to require the court to consider whether the decisions of the Secretary of State in relation to the control order are flawed as at the time of the court’s determination.

Sullivan J considered that Article 6 required that the court should carry out a ‘full merits review’ of the justification for the control order and its terms. On his reading of section 3(10) this was not possible :

“74.

Unlike SIAC’s functions on appeal under the 2001 Act, the court’s role in this hearing under section 3(10) of the Act is to review the lawfulness of the Secretary of State’s decisions on or about 1 September 2005 and to decide whether they were flawed on judicial review principles. Although Mr Burnett emphasised (perhaps unusually in submissions made on behalf of the Secretary of State) the breadth of judicial review principles today and the fact that they now required the court to consider issues of proportionality where Convention rights are engaged, the fact remains that, applying judicial review principles, the court is not able to engage in a merits review under section 3(10): see paragraph 28 of the speech of Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, [2001] UK HL 26.”

We do not consider that the terms of section 3(10), when read in the light of section 11(2), restrict the court to a standard of review that falls short of that required to satisfy Article 6. So far as procedure is concerned, a court conducting a judicial review has all the powers it requires, including the power to hear oral evidence and to order cross-examination of witnesses, to enable it to substitute its own judgment for that of the decision maker, if that is what Article 6 requires. An example of the exercise of such powers is R (Wilkinson) v Broadmoor Special Hospital Authority & Ors [2001] EWCA Civ 1545; [2002] 1 WLR 419. Section 3 of the HRA requires that section 3(10) and section 11(2) of the PTA be interpreted, if possible, in a manner that enables the court to carry out a review of the Secretary of State’s decision that complies with the requirements of Article 6. So far as the standard of review is concerned, we can see no difficulty in so reading those sections as to produce this result, whatever those requirements may be.

In view of this conclusion it is not necessary, in order to determine this appeal, for this court to express a view as to the standard of review that is required when considering the decisions of the Secretary of State when making a non-derogating control order. This was, however, a matter which was debated before us at length and it would not be satisfactory to leave the question unresolved.

Sullivan J held that he was bound by the decision of this court in A v Secretary of State for the Home Department [2004] EWCA Civ 324; [2004] QB 335 to hold that proceedings under section 3 of the PTA did not amount to the determination of a criminal charge for the purposes of Article 6. He held, however, that they came as close to this as it was possible to be.

Mr Starmer QC, for MB, conceded that he was bound by authority to accept that these control order proceedings were civil proceedings. He argued, however, that the judge was right to hold that they came very close to being criminal proceedings and, indeed, reserved the right to argue that they were criminal proceedings should this case go to the House of Lords. In this approach he was supported by JUSTICE, who intervened by written submissions which ‘reserved’ the question of whether control order proceedings engage the criminal limb of Article 6 for potential argument before the House of Lords.

Counsel for the Secretary of State felt it appropriate to provide us with an 18 page ‘Supplementary Skeleton Argument’ dealing solely with the question of whether proceedings under section 3 of the PTA are, or are tantamount to, criminal proceedings.

We can see no point in considering at length a point which will only be open for argument before the House of Lords. We shall simply state our view that proceedings under section 3 of the PTA do not involve determination of a criminal charge. A control order is only appropriate where the evidence is not sufficient to support a criminal charge. Section 8(2) of the PTA provides:

“Before making, or applying for the making of, a control order against the individual, the Secretary of State must consult the chief officer of the police force about whether there is evidence available that could realistically be used for the purposes of a prosecution of the individual for an offence relating to terrorism.”

It is implicit in the scheme that if there is evidence that justifies the bringing of a criminal charge, a suspect will be prosecuted rather than made the subject of a control order.

The fact remains that it is a pre-condition to the making of a control order under section 3 that there must be reasonable suspicion that the controlled person has been engaged in terrorism-related activity and that the obligations that may be imposed under a non-derogating control order, while falling short of infringing Article 5 of the Convention, can nonetheless impact severely on both civil and Convention rights. Mr Starmer submitted that, in the light of these factors the Article 6 requirement of a trial before ‘an independent and impartial tribunal established by law’ could only be satisfied if the court made its own independent assessment of whether the requirements for imposing the control order were satisfied. This was the approach adopted by section 4 in relation to a derogating control order and a similar approach was required in respect of the court’s role under section 3.

Mr Burnett challenged this submission. He submitted that the Secretary of State’s decision was essentially an executive decision governed by public law and that Article 6 was only engaged because the decision incidentally had the effect of determining civil rights. The Secretary of State was the decision maker and the role of the court was to review the legality of his decision, according him a substantial measure of discretion having regard to the fact that the subject matter of the decision was national security. Mr Burnett relied upon Bryan v United Kingdom (1995) 21 EHRR 342, as reviewed by the House of Lords in R (Alconbury) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23; [2003] 2 AC 295 and Runa Begum v Tower Hamlets LBC [2003] UKHL 55; [2003] 2 AC 430 as supporting what he described as ‘the composite approach’ to the requirements of Article 6.

The subject matter of these decisions, namely planning control, was very different from that with which this appeal is concerned. Nonetheless, we agree with Mr Burnett that the reasoning in those cases is relevant in the present context. In the latter two cases the House of Lords, and Lord Hoffmann in particular, drew attention to the distinction between a finding of fact and a decision which turns on a question of policy or expediency. So far as the former is concerned, Article 6 may require the factual evaluation to be carried out by a judicial officer. So far as the latter is concerned, the role of the court may be no more than reviewing the fairness and legality of the administrator to whom Parliament has entrusted the policy decision. Lord Hoffmann identified a finding of a breach of the criminal law as a ‘paradigm example’ of a finding of fact requiring judicial determination in order to comply with Article 6 – see Runa Begum at paragraph 42. Mr Starmer seized on this comment as being directly applicable to the finding that the subject of a control order is or has been involved in terrorism-related activity.

There are two elements in the decision of the Secretary of State to make a non-derogating control order. First he must have reasonable grounds for suspecting that the controlled person is or has been involved in terrorist-related activity. Secondly he must consider that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make the order. The first element involves an assessment of fact. The second element requires a value judgment as to what is necessary by way of protection of the public.

Section 3(10)(a) of the PTA requires the court to consider whether the decision of the Secretary of State that there were reasonable grounds for suspecting that the subject of the order was involved in terrorism-related activity was flawed. Involvement in terrorist-related activity, as defined by section 1(9) of the PTA, is likely to constitute a serious criminal offence, although it will not necessarily do so. This, of itself, suggests that when reviewing a decision by the Secretary of State to make a control order, the court must make up its own mind as to whether there are reasonable grounds for the necessary suspicion. Indeed, as we put to Mr Starmer in argument, it is not easy to see what alternative approach the court could take.

The test of reasonable suspicion is one with which the Strasbourg court is familiar in the context of Article 5(1)(c) of the Convention.

“Having a ‘reasonable suspicion” presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence” – Fox, Campbell and Hartley v United Kingdom (1991) 13EHRR 157 at paragraph 38.

Whether there are reasonable grounds for suspicion is an objective question of fact. We cannot see how the court can review the decision of the Secretary of State without itself deciding whether the facts relied upon by the Secretary of State amount to reasonable grounds for suspecting that the subject of the control order is or has been involved in terrorism-related activity. Thus far we accept Mr Starmer’s submission as to the standard of the review that must be carried out by the court.

Somewhat different considerations apply in respect of the second element in the Secretary of State’s decision. Section 3(10) requires the court to review the decision of the Secretary of State that it was necessary, for purposes connected with protecting the public from a risk of terrorism, to make the control order. The court is further required to consider his decision on each one of the obligations.

Subsection 1(9) throws some further light on the object of the control order. As one might expect, it is to prevent or restrict the controlled person from involvement in terrorism-related activity.

Whether it is necessary to impose any particular obligation on an individual in order to protect the public from the risk of terrorism involves the customary test of proportionality. The object of the obligations is to control the activities of the individual so as to reduce the risk that he will take part in any terrorism-related activity. The obligations that it is necessary to impose may depend upon the nature of the involvement in terrorism-related activities of which he is suspected. They may also depend upon the resources available to the Secretary of State and the demands on those resources. They may depend on arrangements that are in place, or that can be put in place, for surveillance.

The Secretary of State is better placed than the court to decide the measures that are necessary to protect the public against the activities of a terrorist suspect and, for this reason, a degree of deference must be paid to the decisions taken by the Secretary of State. That it is appropriate to accord such deference in matters relating to state security has long been recognised, both by the courts of this country and by the Strasbourg court, see for instance: Secretary of State for the Home Department v Rehman [2001]UKHL 47; [2003] AC 153; The Republic of Ireland v the United Kingdom (1978) 2 EHRR 25.

Notwithstanding such deference there will be scope for the court to give intense scrutiny to the necessity for each of the obligations imposed on an individual under a control order, and it must do so. The exercise has something in common with the familiar one of fixing conditions of bail. Some obligations may be particularly onerous or intrusive and, in such cases, the court should explore alternative means of achieving the same result. The provision of section 7(2) for modification of a control order ‘with the consent of the controlled person’ envisages dialogue between those acting for the Secretary of State and the controlled person, and this is likely to be appropriate, with the assistance of the court, at the stage that the court is considering the necessity for the individual obligations.

The judge treated section 3 of the PTA as requiring the court, as a precondition to approving a control order, to be required to find that the controlled person was or had been involved in terrorism-related activities, but by applying a particularly low standard of proof, namely ‘reasonable suspicion’. He treated this ‘standard of proof’ as an aspect of the court’s procedure that fell to be examined when considering whether this satisfied Article 6. Thus at paragraph 47 he remarked:

“The standard of proof to be applied by the decision taker in making the decision subject to review is very low: reasonable grounds for suspicion, even though the allegation made against the respondent, that he is or has been involved in terrorism-related activity, is a very serious one and may in some cases amount to an allegation that he has committed very serious crimes which would be punishable upon conviction in a criminal court with life imprisonment.”

At paragraph 55 he added:

“Unsurprisingly, Mr Burnett submitted that if reasonable suspicion was sufficient to justify detention under the 2001 Act, it could not be said to be unfair as the basis for imposing obligations less than detention under section 3 of the Act. He also submitted that one should distinguish between substantive unfairness (a submission that the Act as a whole is unfair) and procedural unfairness (a submission that the particular procedure in section 3 is unfair). Criticism of the standard of proof fell into the former category. I do not accept that last submission. The standard of proof required of the original decision taker is capable of being a relevant factor when making an assessment of the extent to which the reviewing court will in reality be able to influence the decision-making process so as to have "sufficient jurisdiction" to deal with any particular case.”

Finally at paragraph 59, the judge stated:

“While criterion (b) in section 2(1) of the Act does raise a question which is a matter for evaluation and judgment, the question raised by criterion (a) is the same (apart from the fact that the behaviour in issue is much more serious) as the question raised in subsection 1(a) of the Crime and Disorder Act. Both raise serious questions of fact with serious implications for the individual if an order, whether an ASBO or control order, is made. If there are "good reasons in the interest of fairness" for applying the criminal standard of proof when deciding whether an individual has acted in an anti-social manner, it cannot be irrelevant in assessing the fairness of control order proceedings overall that a much lower standard of proof is applied when the underlying allegation is that an individual has been involved in terrorism-related activity. Of course, the risk posed to members of the public by terrorism is far more grave than the risk posed to persons in a particular local government area by anti-social behaviour. In the former case, the interests of national security are engaged and it is said that this, together with the nature of much intelligence information, will make it difficult, for evidential reasons, for the Secretary of State to establish more than a reasonable suspicion. Is that submission correct?”

We consider that in these passages the judge is confusing substance, relevant to the substantive Articles of the Convention, and procedure, relevant to Article 6. The PTA authorises the imposition of obligations where there are reasonable grounds for suspicion. The issue that has to be scrutinised by the court is whether there are reasonable grounds for suspicion. That exercise may involve considering a matrix of alleged facts, some of which are clear beyond reasonable doubt, some of which can be established on balance of probability and some of which are based on no more than circumstances giving rise to suspicion. The court has to consider whether this matrix amounts to reasonable grounds for suspicion and this exercise differs from that of deciding whether a fact has been established according to a specified standard of proof. It is the procedure for determining whether reasonable grounds for suspicion exist that has to be fair if Article 6 is to be satisfied.

The comparison made by the judge with section 1(a) of the Crime and Disorder Act 1998 is not apt. That sub-section together with sub-section 1(4) provide, as a precondition to making an anti-social behaviour order, that it must be proved that the subject of the order ‘has acted…in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself”. This precondition of fact is quite different from ‘reasonable grounds for suspicion’.

Before us Mr Starmer submitted that, on the facts of this case, the use of closed material was incompatible with the requirements of Article 6. The reliance on closed material in a case such as this was blatantly unfair. The case against MB is based on intelligence information but sometimes such information is incorrect. It is impossible to deal with such information fairly if the controlled person is not informed of the case against him. These submissions are strongly supported by those made by JUSTICE.

The impact, on the facts of the present case, on the provisions in the PTA for the use of closed material, is the aspect of this case that has caused us most concern. To deny to a party to legal proceedings the right to know the details of the case against him is, on the face of it, fundamentally at odds with the requirements of a fair trial. And yet, both Strasbourg and domestic authorities have accepted that there are circumstances where the use of closed material is permissible. Before proceeding further, we propose to consider these authorities.

In Chahal v UK (1996) 23 EHRR 413 at paragraph 131, in the context of Articles 5(4) and 13, the ECtHR observed:

“The Court recognises that the use of confidential material may be unavoidable where national security is at stake. This does not mean, however, that the national authorities can be free from effective control by the domestic courts whenever they choose to assert that national security and terrorism are involved. The Court attaches significance to the fact that, as the intervenors pointed out in connection with Article 13, in Canada a more effective form of judicial control has been developed in cases of this type. This example illustrates that there are techniques which can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice.”

Further light is thrown on the procedure that the ECtHR had in mind by paragraph 144 of the judgment:

“In this connection, Amnesty International, Liberty, the Aire Centre and the JCWI drew the Court’s attention to the procedure applied in such cases in Canada. Under the Canadian Immigration Act 1976, a Federal Court judge holds an in camera hearing of all the evidence, at which the applicant is provided with a statement summarising, as far as possible, the case against him or her and has the right to be represented and to call evidence. The confidentiality of security material is maintained by requiring such evidence to be examined in the absence of both the applicant and his or her representative. However, in those circumstances, their place is taken by a security-cleared counsel instructed by the court, who cross-examines the witnesses and generally assists the court to test the strength of the State’s case. A summary of the evidence obtained by this procedure, with necessary deletions, is given to the applicant.”

The procedure for closed material and the use of a special advocate was designed to accord with the model referred to in Chahal, which the ECtHR appeared to have approved. In Tinnely & McElduff v UK (1999) 27 EHRR 249, this time when considering whether there had been compliance with Article 6, the ECtHR referred to this procedure, as provided for in the Special Immigration Appeals Commission Bill (see paragraph 52), and remarked at paragraph 78:

“The Court notes that in other contexts it has been found possible to modify judicial procedures in such a way as to safeguard national security concerns about the nature and sources of intelligence information and yet accord the individual a substantial degree of procedural justice.”

It seems plain that, in appropriate cases, the ECtHR is prepared to accept that the use of a special advocate to deal with closed material is not incompatible with the requirements of Articles 5(4), 6 and 13.

In Rowe v United Kingdom (2000) 30 EHRR 1 at paragraph 61 the ECtHR made the following statement in the context of disclosure of documents in a criminal trial where public interest immunity had been claimed:

“However, as the applicants recognised, the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under article 6(1). Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities.”

This statement was made in the context of the requirements of Article 6.

In R v H [2004] UKHL 3; [2004] 2 AC 134 the House of Lords considered the cases that we have referred to above, and other Strasbourg jurisprudence, when considering the procedure to be adopted where public interest immunity was claimed in a criminal trial. The House approved, in exceptional circumstances, consideration of evidence by the court without notice to a defendant and, if necessary, the appointment of special counsel to protect the interests of the defendant. It held, however, that disclosure must be ordered if the effect of non-disclosure will be to render the trial process, viewed as a whole, unfair to the defendant. Lord Bingham, giving the opinion of the House, opened his review of the Strasbourg jurisprudence with the following statement:

“The problem of reconciling an individual defendant’s right to a fair trial with such secrecy as is necessary in a democratic society in the interests of national security or the prevention or investigation of crime is inevitably difficult to resolve in a liberal society governed by the rule of law. It is not surprising that complaints of violation have been made against member states including the United Kingdom, some of which have exposed flaws in or malfunctioning of our domestic procedures. The European Court has however long accepted that some operations must be conducted secretly if they are to be conducted effectively.”

The use of the special advocate procedure under provisions similar to those at issue in the present case has been considered by the domestic courts. In A v Secretary of State for the Home Department [2002] EWCA Civ 1202; [2004] QB 335 Lord Woolf held at paragraph 57:

“The proceedings before the Commission involved departures from some of the requirements of article 6. However, having regard to the issues to be inquired into, the proceedings are as fair as could reasonably be achieved. It is true that the detainees and their lawyers do not have the opportunity of examining the closed material. However, the use of separate counsel to act on their behalf in relation to the closed evidence provides a substantial degree of protection. In addition, in deciding upon whether there has been compliance with article 6 it is necessary to look at the proceedings as a whole (including the appeal before this court). When this is done and the exception in relation to national security, referred to in article 6, is given due weight, I am satisfied there is no contravention of that article.”

The decision of the Court of Appeal was reversed by the House of Lords, but not in circumstances that affected Lord Woolf’s decision on this point. Lord Woolf’s decision was approved in A v Secretary of State for the Home Department (No 2) [2004] EWCA Civ 1123; [2005] 1 WLR 414 by Pill LJ at paragraph 51 and Laws LJ at paragraph 235. Once again this decision was reversed by the House of Lords, but not in circumstances which affected the passages in question.

In R (Roberts) v Parole Board [2005] UKHL 45; [2005] 2 AC 738 the Parole Board proposed to make use of the special advocate procedure when considering whether a life prisoner should be released on licence. The Board proposed to consider evidence that would not be disclosed to the prisoner because disclosure would place the life of an informant in danger. The issue before the House was whether such a course would be compatible with the requirements of Article 5(4) of the Convention. These are similar to the requirements of a fair trial under Article 6. The majority held that non-disclosure of relevant evidence coupled with the use of a special advocate might be compatible with Article 5(4) but that this would depend upon the particular facts.

The critical issue of fact in this case is whether there are reasonable grounds for suspecting that MB has been engaged in terrorism-related activity. If an absolute standard of fairness is applied, MB must be informed of the facts that the Secretary of State contends give rise to this suspicion, so that he can address those facts. The issue is whether Article 6 requires an absolute standard of fairness to be applied, or whether, in a case such as the present, some derogation from that standard is permissible in the interests of national security.

The Strasbourg court has accepted that there can be circumstances where material evidence need not be disclosed in order to satisfy the requirements of Article 6 or Article 13. The Court of Appeal has so found and we are bound to follow that finding. We observe, furthermore, that if the requirements of Article 6 could in no circumstances be satisfied without full disclosure of material evidence, the implications would be far reaching. This can be illustrated by consideration of the Regulation of Investigatory Powers Act 2000 (‘RIPA’).

RIPA provides for the setting up of a Tribunal to hear complaints against the abuse of the investigatory powers conferred by RIPA. In respect of such complaints the Tribunal has exclusive jurisdiction to entertain claims under section 7 of the Human Rights Act. Section 67(2) requires the Tribunal to apply the same principles that would be applied on an application for judicial review.

As required by S 69(6) of RIPA, the Secretary of State has made rules for the conduct of proceedings before RIPA that have regard to:

“(b)

the need to secure that information is not disclosed to an extent, or in a manner, that is contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence services.”

In particular, these rules restrict disclosure of relevant evidence to a complainant. It is plain that, without such restriction, the fundamental purpose of the RIPA could be defeated.

In open Rulings of the Tribunal on Preliminary Issues of Law dated 23 January 2003 the Tribunal, chaired by Burton J, held that Article 6 applied to the proceedings before the Tribunal. The Tribunal held that the procedures available to the court when undertaking judicial review were adequate to enable compliance with Article 6. The Tribunal further held that the procedural restrictions on disclosure of evidence to a complainant were compatible with Article 6:

“… The disclosure of information is not an absolute right where there are competing interests, such as national security considerations, and it may be necessary to withhold information for that reason, provided that, as in the kind of cases coming before this Tribunal, it is strictly necessary to do so and the restriction is counterbalanced by judicial procedures which protect the interests of the Complainants: see Fitt v United Kingdom (2000) 30 EHRR 480 paras 45 and 46 and R v Smith (2001) 1 WLR 1031 at para 25.”

We consider that this decision accorded with the Strasbourg jurisprudence. The Strasbourg Court would recognise that, where complaints are made in relation to surveillance, procedures for a fair trial cannot extend to an automatic requirement on the part of the security services to disclose to a complainant the evidence which has led them to put in place the surveillance. This is, of course, subject to adequate safeguards being put in place to limit any prejudice that would otherwise flow from the non-disclosure.

We turn to the circumstances of the present appeal. Just as in the case of RIPA, the present case is concerned with powers conferred on the executive to interfere with individual rights in order to protect the public against the risk of terrorism. The PTA empowers the Secretary of State to impose obligations, which fall short of infringing Article 5, in order to prevent or restrict the risk that someone who is suspected of having been involved in terrorism will take part in terrorism in the future. Such obligations are likely to interfere with human rights other than those under Article 5 and questions will arise as to whether such interference can be justified. If one starts with the premise that the risk of terrorism may justify such measures, we consider that it must follow that Article 6 cannot automatically require disclosure of the evidence of the grounds for suspicion. Were this not so, the Secretary of State would be in the invidious position of choosing between disclosing information which would be damaging to security operations against terrorists, or refraining from imposing restrictions on a terrorist suspect which appear necessary in order to protect members of the public from the risk of terrorism.

If one accepts, as we do, that reliance on closed material is permissible, this can only be on terms that appropriate safeguards against the prejudice that this may cause to the controlled person are in place. We consider that the provisions of the PTA for the use of a special advocate, and of the rules of court made pursuant to paragraph 4 of the Schedule to the PTA, constitute appropriate safeguards, and no suggestion has been made to the contrary.

We have unravelled each of the four strands of the judge’s reasoning and found that they do not support his conclusion. The judge was in error in holding that the provisions for review by the court of the making of a non-derogating control order by the Secretary of State do not comply with the requirements of Article 6.

The appeal must be allowed and the validity of the order must be reconsidered, adopting an approach that accords with this judgment.