AT v Secretary of State for the Home Department

The issue in this appeal is the legality of a non-derogating control order made by the Secretary of State on 3^rd April 2008, and upheld by Mitting J on 20^th March 2009.

The facts are set out in detail in the judgment. In summary:

On 27^th August 2009 the control order was revoked by the Secretary of State. AT is no longer in the UK. The practical effect of the appeal, as I understand it, is limited to providing a possible basis for a claim for compensation, and perhaps to removing any remaining stigma arising from the making of the order.

The Prevention of Terrorism Act 2005 contains the legal framework for the making of control orders. Relevant to this case are sections relating to the making of a “non-derogating control order”, that is one not involving deprivation of liberty for the purposes of article 5 of the European Convention on Human Rights. By section 2(1), the Secretary of State may make such 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 by section 1(9):

“… involvement in terrorism related activity is 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 by the individual concerned to be involved in conduct falling within paragraphs (a) to (c);

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.”

A non-derogating control order is subject to review by the court, whose functions are defined by section 3(10) and (11):

“(10)

… 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)

...

(b)

the matters mentioned in subsection (10),

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

By section 11(3), no appeal lies from any determination of the court in control order proceedings, except on a question of law.

In February 2010 Mitting J conducted a review hearing under section 3(10) of the Prevention of Terrorism Act 2005, combined with appeals in respect of conditions of the control order. By consent the case was heard with that of another Libyan national, AW. Mr Owen QC appeared for both AT and AW. Mitting J recorded that both admitted to having been members of LIFG, on and after their arrival in the UK, but claimed to have ceased to be members thereafter. On 20^th March 2010 Mitting J gave judgment upholding the order in respect of AT, but not AW.

Mitting J began with a summary of the Secretary of State’s case against AT and AW (paras 6-8):

“6.

At the start of open closing submissions and at my invitation, Mr Tam QC encapsulated the Secretary of State’s case against AT and AW in three propositions:

i)

within and associated with the LIFG are people who may wish to continue the armed struggle or jihad in Libya and elsewhere;

ii)

as their activities in and before January 2004 demonstrate, AT and AW have the skills, knowledge and contacts which, if put at the service of such people, would be of assistance to them;

iii)

neither AT nor AW have demonstrated that they are not willing to do so.…

AT

7.

The Secretary of State relies on five open grounds:

i)

AT was and is a significant and influential member of the LIFG;

ii)

AT has supported terrorist networks by providing a variety of false documentation including passports and identity documents;

iii)

AT has supported LIFG activities by the transfer of funds;

iv)

AT espouses violent Islamist views, as is demonstrated by the material seized at his home in October 2005;

v)

the three propositions summarised above.

AW

8.

The Secretary of State relies on four open grounds:

i)

AW was and is a prominent member of the LIFG;

ii)

AW was and is a facilitator for the LIFG, specializing in the production and provision of false documents to overseas LIFG members;

iii)

AW was and is a facilitator for the LIFG specializing in the provision of funds to overseas LIFG members;

iv)

the three propositions summarised above.”

The control order in respect of AW was quashed. Mitting J accepted Mr Owen’s submission that the Secretary of State had been misled by the submissions to her. On the information available to the Security Service, AW’s activities as the forger of documents and provider of funds ceased on his arrest on 8th January 2004, but the impression given by the submissions to the Secretary of State was that they had resumed after his release from prison on 21st July 2005. The judge said:

“The error went to a factor of critical importance in the decision… When, as here, that person has been successfully prosecuted – as it happens twice – one of the factors which the Secretary of State will always wish to take into account when making her decision is whether or not he has been deterred. For the Security Service submission to give the impression that, not only has he not been deterred, but he has re-engaged in identified terrorism-related activity, misleads as to a critical factor in her decision. On any view, the error is sufficiently important to lead to the conclusion, which I reach, that the decision was flawed.” (para 18)

He did not find the same error in the case of AT. In his view, there was nothing in the statements to convey the false impression that AT had resumed the supply of false documentation after January 2004.

Mitting J then considered in turn the procedural and substantive aspects of AT’s case. On the former, he was satisfied that the requirements of fairness were met in AT’s case notwithstanding limitations on the disclosure of the case against him. I shall return to that part of his judgment when I come to that issue.

On the substantive issues, he also upheld the Secretary of State’s case:

“28.

I set out my conclusions on the grounds relied on by the Secretary of State by reference to the numbered sub-paragraphs of paragraph 7 above.

i)

I remain of the opinion that the LIFG remains in being, although its cohesion and effectiveness have been much reduced, for the reasons set out in the open and closed generic judgments. I am satisfied, on balance of probabilities, that AT was and remains a significant member of the LIFG, with the potential to exercise influence over its members and associates if not subject to obligations imposed by a control order. I reject his claim to have had nothing to do with the organisation since 8th January 2004.

ii)

I am satisfied on balance of probabilities that AT’s admitted participation in the provision of false documentation was for a terrorism-related purpose: the support of the activities of the LIFG in the United Kingdom and overseas.

iii)

I am satisfied on balance of probabilities that AT has supported LIFG activities by the transfer of funds. I reject as untrue his claim that he was only the book-keeper – a claim which is inconsistent with the mitigation advanced on his behalf in the first criminal proceedings.

iv)

I am satisfied to the criminal standard that AT has lied to me about the footage of atrocities seized at his house. Some, at least, of the footage was not in existence at the time when he says it was left with him. Some of it depicts the murder of the hostage Paul Johnson. His beheaded corpse was found near Riyadh on, or shortly before, 18th June 2004, following the release of a video showing him alive on or shortly before 16th June 2004. The police searched AT’s home (at different addresses) on only two occasions: 8th January 2004 and 3rd October 2005. This footage must have been seized on the latter date. I am also satisfied, to the criminal standard, that the individual named by AT did not leave the footage with him. That individual had long since ceased to belong to the LIFG and, as published interviews with him since have made clear, did not espouse pan-Islamist views or barbarous conduct of the kind depicted in the footage. I do not claim to know why AT lied about these issues; but the lies are deeply troubling and are capable of supporting the cautious conclusion of the Security Service expressed in paragraph 7 of the third open statement that (AT) does not necessarily object to the global Islamist agenda espoused by AQ and the wider Islamist extremist community. The finding of the material and the lies told about it go a long way to supporting the third of the propositions advanced by Mr Tam, summarised in paragraph 6 above.

v)

I am satisfied that Mr Tam’s three propositions are factually sound.

I have reached these conclusions on both the open and closed material. In relation to some of the issues, my conclusions are more fully set out the closed judgment.”

In a long concluding paragraph (para 29) he explained his reasons for holding that the control order was “necessary” in terms of section 2(1). Two short extracts are sufficient to indicate his approach:

“… When dealing as they are in the case of AT, with a significant and influential member of the LIFG whose activities in the past have furthered its ends, who has the capacity to re-engage and whose views are suspect and clouded by lies told by him, the Security Service and so the Secretary of State are entitled to be cautious....

… The management of the risk posed by AT is a delicate and difficult task. The imposition of a control order was and remains a necessary and proportionate response to that risk, because it diminishes the risk that AT will re-engage in the affairs of the LIFG in a way which would assist those who wish to continue the armed struggle. That is a sufficient justification of the making and continuance of the order.” (para 29)

The issues in the open appeal are summarised by Mr Owen as follows:

Mitting J gave permission to appeal on ground (i), and refused on the other grounds, which are before us on a renewed application for permission. The appeal on ground (iii) is supported by further closed submissions by the Special Advocates.

I say at once that the only ground which raises significant issues in my view is ground (iii), on which I would grant permission to appeal, and which I shall discuss in detail later in this judgment. Although the appeal on ground (i)(a) and (b) has permission of Mitting J, neither point to my mind raises any true issue of law. I would refuse permission for the other grounds for reasons I can explain briefly.

New evidence following conviction

Ground (i)(a) refers to the relevance of the conviction to the making of the control order.

The genesis of this ground appears to lie in the comments of Mitting J in a related case, AU v SSHD [2009] EWHC 49 (Admin). He was considering a submission that a control order could not properly be made on the basis only of matters known to the authorities at the time of a prior, successful prosecution. He referred to statements of Lord Bingham and Lady Hale in the House of Lords (SSHD v E [2008] 1AC 499, paras 14, 26), indicating that a control order should be seen as “second best” to prosecution, and should only be made where an individual “cannot realistically be prosecuted for a terrorism-related offence”.

He said:

“5.

….the House of Lords [in E] neither considered, nor expressed any opinion about the situation which has arisen in this case: the imposition of a Control Order after a successful prosecution.

6.

I accept, as does Mr O’Connor (in practice, if not in principle) that where the only information known about an individual is a set of facts which justifies, and results in, a successful prosecution for a terrorism-related offence and there is no reason to believe that the individual has undertaken any other terrorism related activity or will do so after he has served the sentence imposed for the crime, it would not thereafter be necessary to impose a Control Order upon him. In such circumstances, Baroness Hale’s ‘best’ option would have succeeded: there would be no need for the ‘second best’. The two would truly be alternatives….” (emphasis added)

He contrasted that situation with two possible examples: first, where the authorities had publicly available evidence sufficient to support a conviction, but also had other secret information of (say) preparations for a terrorist attack, which would justify a control order; or secondly, where they obtain information that, notwithstanding his conviction and sentence, he has not in fact been deterred from terrorist activity. In such circumstances, there would be nothing in the Act to prevent the Secretary of State from making a control order if she properly concluded that it was necessary for public protection.

Mr Owen submits that neither of the two scenarios envisaged by Mitting J applies in this case, and that the case falls into his first category where there is no evidentiary basis for the order. As he puts it in his skeleton:

“It is submitted that positive evidence must be advanced since the prosecution which would establish a firmness of intent sufficient to satisfy the test of necessity under the PTA 2005. There was no such evidence advanced in the instant appeal by the Secretary of State.” (his emphasis)

Mitting J considered and rejected this submission:

“On the basis of the first sentence of paragraph 6 of my Judgment in AU [2009] EWHC 49 (Admin) Mr Owen submits that it must be proved that AT has a present intention to re-engage or, at least, that there is reasonable ground to suspect that he intends to do so; and that such an intention can only be inferred from post-release acts. Otherwise, he asks rhetorically: how can AT ever establish that he does not pose a risk to the public? His submission mis-states what I accepted in AU which was: where the only information known about an individual is a set of facts which justifies, and results in, a successful prosecution for a terrorism-related offence and there is no reason to believe that the individual has undertaken any other terrorism-related activity or will do so after he has served the sentenced imposed for the crime, it would not thereafter be necessary to impose a control order upon him. The second circumstance does obtain here: for the reasons explained, there was and is, currently, reason to believe that AT will undertake terrorism-related activity unless inhibited by a control order. It is pointless now, to speculate on when and by what means AT may demonstrate that he will not do so. If, as he contends, he has the settled intention not to re-engage, there will come a time when he can safely be taken at his word. That time has not yet arrived...” (para 29)

With respect to the judge, I do not think the House of Lords judgments in SSHD v E throw any light on the present problem. As he acknowledged in AU, it was concerned with a different stage of the process. The debate centred on the effect of section 8 of the 2005 Act, which obliges the Secretary of State, before making a control order, to consult the police on the prospects of a successful prosecution. At that stage, if there is sufficient evidence to support a prosecution, that is the appropriate course, as Lady Hale explained:

“The public is far better protected, even while criminal proceedings are pending, let alone if they result in a conviction. From the point of view of the controlled person, serious restrictions are imposed upon his freedom of action on the basis of mere suspicion rather than actual guilt. From both points of view, prosecution should be the preferred course. That is why section 8 was inserted in the 2005 Act.” (para 26)

Those considerations are of no relevance once the criminal process has run its course. At that stage there is no prospect of a second prosecution, so there is no choice to be made between first and second best. The only issue is whether the conditions for a control order are satisfied. That depends on the words of the statute. The existence of a criminal conviction is clearly relevant to the first part of the question: is the subject involved, or has he been involved, in terrorism? It is also a legitimate starting-point for the second part: is it necessary, for the protection of the public, to make a control order? That is a question of judgement, which can properly include consideration of the nature and circumstances of the original conviction, and what has happened – positively or negatively – since then. There is no rule of law requiring “positive” evidence of continued terrorist activity. What is necessary in a particular case, and what weight to give to any evidence, or to its absence, are (short of irrationality) questions of factual judgement, not law.

Similarly, the second part of ground (i) finds its answer in the statute. The decision of the Court of Appeal in Lord Alton v. SSHD [2008] 1 WLR 2341; [2008] EWCA Civ 443 does not assist, because the statutory wording and context were different. The appeal was against a decision of the Proscribed Organisation Appeals Commission (POAC). The issue was whether an organisation could be said to be “concerned with terrorism” (the statutory test for proscription under the Terrorism Act 2000), even if it was currently inactive. It was held that it could, if it retained its military capacity for the purpose of carrying out terrorist activity, but not if it had no such capacity, and no more than “a contingent intention” to resort to terrorist acts in the future (para 36-8).

Mitting J found no assistance in the decision:

“I do not accept the validity of the analogy. There is a significant difference between making a decision about the future risk posed by an individual who has been involved in terrorism-related activity and about an organisation which ‘is’ concerned in terrorism. The former concerns future risk and the latter the assessment of a current state of affairs…” (para 29)

I agree. Here too, Mr Owen makes assertions about the correct inferences from the evidence in this case, but they are points of fact not law, and again his view is inevitably partial, without access to the closed material.

Comparison with AW’s case

Mr Owen relies on the judge’s finding that the Secretary of State had been misled in respect of AW because information presented (in the form of the first open statement) wrongly gave the impression that he was continuing to engage in terrorist activity, following his first conviction and sentence. That was reinforced by the failure to make clear that the second prosecution in 2005 was exclusively based on activities before January 2004. Although the Secretary of State appealed against that decision, the appeal was withdrawn in October 2010.

Mr Owen submits that the statement in AT’s case followed the same structure as in AW’s case, and gave the same misleading impression that there were two separate offences, the second by implication being based upon a re-engagement of activities after the first prosecution. As already noted, the judge rejected a similar submission. He accepted that there were similarities between the two statements, but there were significant differences:

“The summary of the national security case, in paragraph 10 is in the past tense:

‘(AT) has provided support to terrorist networks overseas. His activities on behalf of these groups have involved the provision of false documentation. It is assessed that (AT) continues to pose a risk to national security.’

The detailed case refers only to past events and does not assert that it provides evidence that AT ‘is’ a manufacturer and supplier of false documentation. The language of the assessment in paragraph 18 is accurate: ‘(AT) is a member of the LIFG, who has been involved in the provision of forged passports and false passports…’, as is that of paragraph 24 justifying the curfew and related obligations, ‘he has created and supplied false documents’. Nothing in the first open statement could lead the reader to conclude that AT had resumed the supply of false documentation or funds with AU or otherwise after 8th January 2004. The information provided about AT’s activities in the submission to the Secretary of State was accurate and, for the reasons explained, not misleading. I am satisfied that the Secretary of State’s decision to make the order in the terms which she did was not, in the case of AT and for that reason, flawed.” (para 22)

In my view, this was a matter for the judge to determine on the basis of his knowledge of all the material available to the Secretary of State, open and closed. Mr Owen makes a number of detailed comparisons between the two cases, and the language used in the statements, to support an inference that the Secretary of State is likely to have made the same error in both. At the most these amount to material which might have led the judge to a different view of the facts. They do not arguably show that his decision was wrong in law.

Like the judge, I would refuse permission on this ground.

Errors of fact

Mr Own asks us to review the judge’s conclusions on two matters of fact which he says were not justified by the evidence:

Short of irrationality, which is not alleged, the evaluation of evidence of this kind, and the inferences to be drawn from it, were matters for the judge. They do not arguably raise any issue of law. Again, like the judge, I would refuse permission to appeal.

I turn to the remaining issue, relating to adequacy of disclosure. As already noted, I regard this as realistically arguable and would grant permission to appeal.

The judge’s task was complicated by developments in the case-law during the course of the proceedings. At the time of the hearing before Mitting J (10^th-19^th February 2010), the governing domestic authority on the issue of disclosure was the judgment, given on 17^th October 2009, of the Court of Appeal in SSHD v AF, AM and AN [2008] EWCA Civ 1148, [2009] 2 WLR 423. It held by a majority that there was no “irreducible minimum” of information which must be disclosed to ensure fairness to the subject of the order. On the last day of the hearing, on 19^th February, the ECHR gave judgment in A v United Kingdom 3455/05, which laid down a more stringent requirement for disclosure. Having received submissions from the Special Advocates on the significance of that decision, Mitting J gave judgment on 20^th March.

On 3^rd March the House of Lords had begun the hearing of the appeal in AF (No 3), which provided an opportunity to review the Court of Appeal guidance in the light of the ECHR decision. Judgment in that case was given by the House on the 10^th June 2010, in effect adopting the approach of the ECHR. Lord Phillips’ leading judgment in AF(No3) [2009] UKHL 28 para 59 identified the “essence” of the ECHR ruling as follows:

“This establishes that the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations. Where, however, the case against the controlee is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials would be.”

It is necessary next to consider the sequence of disclosures by the Secretary of State, and AT’s responses to them. As is normal in such cases, the Secretary of State’s case was presented in the form of a series of “national security statements” (“NSS”) in both open and closed form. The open statements followed the format of the closed statements, but with parts redacted. The court has in this appeal had access to both closed and open versions. Although this ground of appeal is supported by the Special Advocates by reference to their knowledge of both, I propose to consider the issue at this stage by reference only to the open material.

The relevant sequence was as follows:

In his judgment, given on 20^th March, Mitting J acknowledged the problem created by the ECHR judgment. He noted that, in terms of domestic jurisprudence, he remained strictly bound by the approach laid down by the Court of Appeal. However, he accepted that this would shortly be reconsidered by the House of Lords in the light of the ECHR judgment. Accordingly he decided to consider the issue of disclosure by reference to both approaches, as he explained:

“When the House of Lords considers the appeal against that judgment later this month, it will have to take account of the judgment of the European Court of Human Rights in A v The United Kingdom 3455/05, given on 19th February 2009 and, in particular, its observations on the requirements of procedural fairness contained in Article 5(4)…

I have, therefore, considered the issue of procedural fairness not only on the basis laid down by the Court of Appeal but also having regard to the principle identified by the Strasbourg Court. The Court acknowledged that the Special Advocate procedure provided two important safeguards for (in that case) the appellants: questioning the need for secrecy and testing the evidence and putting forward arguments on behalf of the detainee during the closed hearings: paras. 219 and 220.

However the special advocate could not perform this function in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate.

This question must be decided on a case by case basis, but the Court gave helpful observations about categories of case in which the requirements of procedural fairness were likely to be satisfied, or not. The former included cases in which the open material played the predominant role in the determination and those in which the allegations in the open material were sufficiently specific to permit instructions to be given by the appellant even though the underlying evidence remained undisclosed. The latter included cases in which the open material consisted purely of general assertions and (my emphasis) SIAC’s decision to uphold the certification and maintain the detention was based solely or to a decisive degree on closed material. What is required by Article 6 in this case is the application of a minimum standard of procedural fairness to the issue of necessity.” (para 24)

Following that approach, he considered the extent of disclosure by reference to the Secretary of State’s open case on the issue of necessity, as summarised in paragraphs 6 and 7 of the judgment (para 9 above):

“The Secretary of State’s open case on this issue is summarised in paragraphs 6 and 7 above. The closed material provides detail and context for those contentions and I have taken it into account in reaching the decisions set out later in this judgment; but AT has had the opportunity to challenge them and has done so. By reference to the numbered sub-paragraphs in paragraph 7 above,

i)

he admits that he was a member of the LIFG, but denies that he has played any part in its activities since 8th January 2004, because, from that time onwards, he has been in detention or under constraints imposed by the home detention curfew regime, SIAC bail and this control order and because the LIFG was finished as an organisation when its top leadership (Sadeq and Mundhir) were arrested and deported to Libya in March 2004.

ii)

he admits participating in the distribution of false documentation, but denies that he thereby supported terrorist networks.

iii)

his case on funding is inconsistent. It was submitted on his behalf at the hearing at which he was sentenced for forgery and counterfeiting offences that he was particularly concerned with raising funds, in particular for the families of those who are imprisoned in Libya or who have died there and was sentenced on that basis by Mackay J for the terrorism-related offence on 11th June 2007. In evidence, he said that he was only the book-keeper and had never transferred anything, even after AU’s arrest on 21st November 2002.

iv)

he denies that he has ever held or espoused violent Islamist views. He said in evidence that the footage of the killing of Russian soldiers and of hostages seized at his house was not his and asserts that they were left there by a named person (whose identity is stated in the closed judgment) in November or December 2003.

v)

for reasons which are apparent from his case on the specific issues referred to above, he refutes the three propositions upon which the Secretary of State’s case is based.

I am satisfied that AT has had the opportunity to permit him to give effective instructions to the special advocate about his case on these issues. I am also satisfied that what appears in the closed material is not determinative of the issue of necessity. The determinative issue is whether or not the propositions set out in paragraph 6 above are made out and justify the making and continuance of the order. Even if the requirements of Article 5(4) identified by the Strasbourg Court in A apply to this hearing, I am satisfied that they have been fulfilled. It necessarily follows that I am satisfied that the less stringent requirements laid down by the Court of Appeal have also been fulfilled.” (para 25-27)

Mr Owen challenges this approach. He first points out that, because of the timing of the ECHR decision, the judge had only limited (written) assistance from the Special Advocates on its application to the facts of the case, and submits that for that reason “a vital safeguard in a vital process” was missing.

He accepts, as I understand it, that the judge rightly concentrated on whether AT was given sufficient information to enable him to give effective instructions. However, he submits that the judge failed properly to apply this test. Central to his conclusions was the proposition that AT remained “a significant and influential member of the LIFG”, and remained willing and able to assist them. Yet no reasons were given for this conclusion in the open judgment. Nor had any details been given in the open materials to explain what led the Secretary of State to believe AT continued to be an influential figure within the LIFG, contrary to his own denials. Mr Owen submits that this a clear example of a general allegation for which the support (if any) must lie in the closed materials, and of which his client should have been given notice.

Mr Tam, for the Secretary of State, submits that this is too stringent a view of the ECHR approach. The precise detail of AT’s continuing role with the LIFG was not critical, given that his chosen stance was that he had abandoned all links with them. That was the case which the Special Advocates had been instructed to put. The judge was not required to speculate as to how AT might have changed his instructions, had he been made aware of any evidence which contradicted his primary case, and fairness did not require him to be given that opportunity.

The allegation that AT “was and is” a significant and influential member of the LIFG was an important part of the Secretary of State’s case against him. The judge clearly accepted this and disbelieved his evidence to the contrary. As he said (para 28(i)):

“I am satisfied, on balance of probabilities, that AT was and remains a significant member of the LIFG, with the potential to exercise influence over its members and associates if not subject to obligations imposed by a control order. I reject his claim to have had nothing to do with the organisation since 8th January 2004.”

The same point was picked up again in his concluding paragraph 29, on the issue of necessity, which was directed to the appropriate approach in dealing with “a significant and influential member of the LIFG…”

Although this was stated as a primary finding at the beginning of his factual conclusions in paragraph 28, he gave no further indication of the evidence on which it was based. Since AT had been in prison from January 2004 until July 2005 and had been re-arrested in October of the same year, there had been limited opportunity for any active involvement. Nothing in the judgment or in the open materials indicated whether it was suggested that there had been activity in this period to support the allegation. Although the judge placed some weight on the discovery of the videos in October 2005 (para 28(iv)), this was referred to as a separate matter, rather than as the basis of the main finding. Paragraph 28 concluded simply by stating that the factual conclusions were based on “both the open and closed material” and that in relation to “some of the issues” his conclusions were more fully set out in the closed judgment. In the absence of other explanation in the open judgment, the natural implication to someone reading this on its own would be that the primary allegation was one of the issues addressed in the closed material.

Under the jurisprudence applying at the time when the proceedings began, and when AT gave evidence, such an approach may well have been acceptable. However, by the time he came to give judgment, the position needed to be reconsidered. The Special Advocates were understandably submitting that more detailed disclosure on this primary conclusion was needed to satisfy the ECHR test. The judge sought to meet this submission by focussing on the two-parts of the words of the ECHR (later adopted by Lord Phillips):

“cases in which ‘the open material consisted purely of general assertions and (my emphasis) SIAC’s decision to uphold the certification and maintain the detention was based solely or to a decisive degree on closed material.’”

His specific emphasis on the word “and” indicates to my mind that he regarded this as a cumulative, two-part test. In other words, open material consisting of general assertions could be acceptable, provided the ultimate decision was not based “solely or to a decisive degree” on closed materials. He was able to conclude that this two-part test was satisfied. The material allegations were those set out in paragraphs 6 and 7 of the judgment. He had satisfied himself by reference to the sub-paragraphs of paragraph 7 that the Special Advocates had been able to take instructions on those issues. The closed material, he said, provided “detail and context for those contentions”, but in his view was not “determinative”:

“The determinative issue is whether or not the propositions set out in paragraph 6 above are made out and justify the making and continuance of the order.”

Mitting J was placed in an unenviable position by the timing of the ECHR judgment. It was understandable that he was anxious to avoid reopening the evidence at that late stage. However, I find this part of his reasoning difficult to follow. It seems that he may have been seeking to draw a distinction between the propositions in paragraph 6, which were treated as “determinative”, and those in paragraph 7 which were treated as no more than incidental. If so, it was in my view an unreal distinction. Paragraph 6 contained the (negative) allegation that AT, having the skills to assist the LIFG had not demonstrated that he was “unwilling to do so”. Paragraph 7 added the (positive) allegation that he “was and is a significant and influential member” of the LIFG. Both negative and positive allegations contributed materially to the conclusion that a control order was necessary. The Special Advocates needed to be able to take adequate instructions of both.

There are parallels with two of the cases considered in A v UK. The court commented:

“The open allegations in respect of the third and fifth applicants were of a general nature, principally that they were members of named extremist Islamist groups linked to al'Qaeda. SIAC observed in its judgments dismissing each of these applicants' appeals that the open evidence was insubstantial and that the evidence on which it relied against them was largely to be found in the closed material. Again, the Court does not consider that these applicants were in a position effectively to challenge the allegations against them. There has therefore been a violation of Article 5 § 4 in respect of the third and fifth applicants.” (para 224)

So here, the allegation that AT remained a “significant and influential member” of the LIFG was a general allegation. In that case SIAC had acknowledged that the determinative evidence was in the closed material. This case differs because there was no such acknowledgement in the open judgment. However, in the face of AT’s consistent denial of his continuing role, there needed to be some material by which that issue could be determined against him. If there was nothing in the open material, it could only be in the closed material. Otherwise the allegation could not be sustained. In other words, either there was such closed material, in which case some detail needed to be given to AT to enable him to deal with it; or there was not, in which case there was no evidence to support the allegation. In this respect, the judge’s assertion that the closed material was not determinative leaves a fatal gap in his reasoning.

This analysis is in my view sufficient to lead to the view that the decision cannot be upheld. Although we have had access to the closed material, I do not find it necessary or appropriate to supplement this open judgment with a review of that material. The open judgment must stand on its own merits. Where reliance is placed on closed material to determine an issue of significance, that needs to be made clear in the judgment, and the judge needs to satisfy himself that the subject has had adequate notice of the points against him.

For these reasons, I would allow the appeal on this ground.

I would grant permission on ground (iii) and allow the appeal on this ground. I would dismiss all other grounds (and refuse permission on those for which it has not yet been granted). We will need to receive submissions on the consequences in the present much changed circumstances.

I agree.

I also agree.