The three appellants are Libyans who were subject to control orders on the ground that the Secretary of State had reasonable grounds for suspecting that the appellant was, or had been, involved in terrorism-related activity.Each person contended that this right to a fair trial was violated by relying on secret evidence which was not disclosed to the person. The court agreed, relying heavily on the European Court’s decision in A and others vs UK
Par. 50 The Government advanced in the Memorial a detailed defence of the use of closed material. At paragraph 4.77 it identified the critical issue in relation to this:“The Government submit that the result contended for by the applicants is wrong in principle. Their submission wrongly elevates the right of an individual to disclosure of relevant evidence under Article 5(4) (or Article 6) to an absolute right which necessarily overrides the rights of others, including the right to life under Article 2, and overrides the interests of the State in protecting secret sources of information so as to preserve the effectiveness of its intelligence, police and counter-terrorism services.Article 6), that the general interests of the community must be balanced against the rights of an individual (see eg Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, at para 69; Soering v United Kingdom (1989) 11 EHRR 439, at para 89).”
This is the critical issue that arises on the present appeals. For the reasons that follow I consider that the Grand Chamber has provided the definitive resolution of it.
Some noteworthy paragraphs of Lord Phillips of Worth Matravers:
59. Contrary to Mr Eadie’s submission, I am satisfied that the essence of the Grand Chamber’s decision lies in paragraph 220 and, in particular, in the last sentence of that paragraph. 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 open material consists purely of general assertions and 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 may be.
63 (…) Reasonable suspicion may be established on grounds that establish an overwhelming case of involvement in terrorism-related activity but, because the threshold is so low, reasonable suspicion may also be founded on misinterpretation of facts in respect of which the controlee is in a position to put forward an innocent explanation. A system that relies upon the judge to distinguish between the two is not satisfactory, however able and experienced the judge. Next there is the point made by Megarry J in respect of the feelings of resentment that will be aroused if a party to legal proceedings is placed in a position where it is impossible for him to influence the result. The point goes further. Resentment will understandably be felt, not merely by the controlee but by his family and friends, if sanctions are imposed on him on grounds that lead to his being suspected of involvement in terrorism without any proper explanation of what those grounds are. Indeed, if the wider public are to have confidence in the justice system, they need to be able to see that justice is done rather than being asked to take it on trust.
64. The best way of producing a fair trial is to ensure that a party to it has the fullest information of both the allegations that are made against him and the evidence relied upon in support of those allegations. Where the evidence consists of oral testimony, then he should be entitled to cross-examine the witnesses who give that testimony, whose identities should be disclosed. Both our criminal and our civil procedures set out to achieve these aims. In some circumstances, however, they run into conflict with other aspects of the public interest, and this is particularly the case where national security is involved. How that conflict is to be resolved is a matter for Parliament and for government, subject to the law laid down by Parliament. That law now includes the Convention, as applied by the HRA. That Act requires the courts to act compatibly with Convention rights, in so far as Parliament permits, and to take into account the Strasbourg jurisprudence. That is why the clear terms of the judgment in A v United Kingdom resolve the issue raised in these appeals.
65 (…) The Grand Chamber has now made clear that non-disclosure cannot go so far as to deny a party knowledge of the essence of the case against him, at least where he is at risk of consequences as severe as those normally imposed under a control order.
Lord Hope of Craighead:
On the nature of control orders:
(par.77) “when account is taken of their nature, duration, effects and manner of implementation (see Engel v The Netherlands (No 1) (1976) 1 EHRR 647, para 59), there is no doubt that control orders severely restrict the freedom of movement of those who are subjected to them.”
(par.82) “Mr Eadie QC for the Secretary of State very properly accepts that the effects of a control order on the controlled person are such that the same fair trial guarantees apply in his case too. He submits that account should be taken of the fact that they are less severe than those imposed by detention, but I do not think that there is room here for such a distinction.
On the use of special advocates and an independent judge in the control order regime (par.80):
(par.80) (…) “The procedural protections can never outweigh the controlled person’s right to be provided with sufficient information about the allegations against him to give effective instructions to the special advocate.”
(par.82) (…) The difficulties that less than full disclosure gives rise to must be counterbalanced in such a way that the controlled person still has the possibility effectively to challenge the allegations against him. If that cannot be done, the judge must exercise the power that he is given by section 3(12) of PTA 2005 and quash the control order.
(par.85) (…) The judge must insist in every case that the controlled person is given sufficient information to enable his special advocate effectively to challenge the case that is brought against him. That is the core principle.
On the question of ‘balance’:
(par.84) The consequences of a successful terrorist attack are likely to be so appalling that there is an understandable wish to support the system that keeps those who are considered to be most dangerous out of circulation for as long as possible. But the slow creep of complacency must be resisted. If the rule of law is to mean anything, it is in cases such as these that the court must stand by principle. It must insist that the person affected be told what is alleged against him.
(par.86) The judge is entitled to take the view that a person who really does have a case to answer will make every effort to provide his special advocate with the information he needs to make the challenge. He will also note that the Strasbourg court was careful not to insist on disclosure of the evidence. It is a sufficient statement of the allegations against him, not the underlying material or the sources from which it comes, that the controlled person is entitled to ask for. The judge will be in the best position to strike the balance between what is needed to achieve this and what can properly be kept closed.
On the role of the House of Lords
88. The House is in no position to say more, as it declined the Secretary of State’s invitation to look at the closed material. I believe that it was right to do so. The judge at first instance must have access to it where it is said that disclosure of relevant material will be contrary to the public interest, and the Court of Appeal may perhaps need to too if this is necessary for the exercise of its jurisdiction under section 11(3) of PTA 2005. But the process should stop there. The function of the House, as the final court of appeal, is to give guidance on matters of principle. Its judgments must be open to all, not least to the controlled person. The giving of reasons in a closed judgment, which would be inevitable if it were to be based to any extent on closed material, is inimical to that requirement. It is hard to imagine any circumstances in which scrutiny of such material by the House, or by the Supreme Court when it comes into existence, would be necessary or appropriate.
Lord Scott of Foscote took a slight different road (see par.95 and 97), but agreed with the majority.
97: The underlying problem, as I see it, with the 2005 Act and the government’s attitude to it, is that the government, having formed the view that the provisions of the Act were necessary for the safety of the public from terrorism and, accordingly, having promoted and obtained the enactment of the 2005 Act, has been unwilling publicly to accept that the implementation of these provisions may require the curtailment of fair hearing rights, and to face up to whatever may be the political consequences of that acceptance.
Lord Rodger of Earlsferry had just one thing to say:
98 Even though we are dealing with rights under a United Kingdom statute, in reality, we have no choice: Argentoratum locutum, iudicium finitum – Strasbourg has spoken, the case is closed.
Baroness Hale of Richmond agreed
103 “Strasbourg has now, in A and others v United Kingdom, Application No 3455/05, Judgment, 19 February 2009, made it entirely clear what the test of a fair hearing is. The test is whether the controlled person has had the possibility effectively to challenge the allegations against him. For this he does not have to be told all the allegations and evidence against him, but he has to have sufficient information about those allegations to be able to give.”
106 “If the Government adjudges that it is necessary to impose serious restrictions upon an individual’s liberty without giving that individual a fair opportunity to challenge the reasons for doing so, as to which it is not for us to express a view, then the Government will have to consider whether or not to derogate from article 6 of the Convention. Until that time, judges will have to grapple with precisely how much disclosure is necessary to enable the controlled person to mount an effective challenge and the Secretary of State will have to grapple with whether to agree to it.
And so did Lord Brown of Eaton-Under-Heywood:
119. Plainly there now is a rigid principle. Strasbourg has chosen in para 220 of A to stipulate the need in all cases to disclose to the suspect enough about the allegations forming the sole or decisive grounds of suspicion against him to enable him to give effective instructions to the special advocate. In reaching this decision Strasbourg clearly rejected the argument set forth in the Government’s Memorial, including, for example, that article 6 confers no “absolute right which necessarily overrides the rights of others, including the right to life under article 2, and overrides the interests of the state in protecting secret sources of information so as to preserve the effectiveness of its intelligence, police and counter-terrorism services. Such an absolute right to disclosure would, if it existed, create a serious lacuna in the protection the State may offer its citizens and disregards the principle, inherent in the Convention as a whole, including . . . article 6, that the general interests of the community must be balanced against the rights of an individual (see eg Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, para 69 [and] Soering v United Kingdom (1989) 11 EHRR 439, para 89).”
120. That said, however, Strasbourg’s solution to the problem itself plainly represents something of a compromise and gives some weight at least to the demands of national security. (…) Plainly A does not require the disclosure of the witness’s identity or even their evidence, whatever difficulties that may pose for the suspect. What is required is rather the substance of the essential allegation founding the Secretary of State’s reasonable suspicion.
The home secretary, Alan Johnson, was extremely disappointed:
“Protecting the public is my top priority, and this judgment makes that task harder,” he said. “Nevertheless, the government will continue to take all steps we can to manage the threat presented by terrorism.”
“All control orders will remain in force for the time being and we will continue to seek to uphold them in the courts. In the meantime, we will consider this judgment, and our options, carefully.”