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:

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,

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:

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:

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:

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:

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:

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

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—

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):

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:

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:

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:

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

The only function that the court was permitted to perform under section 3(10) was to consider whether, at the time that his decision was made and on the material that was then before him, the Secretary of State’s decision was flawed.

The function of the court was to review the decision of the Secretary of State, not to form its own view of the merits of the case.

In performing this function, the court was required to apply a particularly low standard of proof;

The court reached its decision on the basis of evidence of which MB was unaware and which he was therefore not in a position to controvert.

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

Article 13 of the Convention provides:

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 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:

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:

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 :

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:

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.

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:

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:

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

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:

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:

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 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 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:

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:

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.