AE (Proceedings under the Prevention of Terrorism Act 2005) [2008] EWHC 585 (Admin), [2008] All ER (D) 309 (Mar)
Queen’s Bench Division, Administrative Court
Silber J
20 March 2008
There is no irreducible or minimum amount of material that has to be disclosed in the open for the Art 6 rights of a controlled person to be preserved. The task of the courts is to decide, looking at the process as a whole, whether or not a procedure has involved significant injustice to the controlled person.
Lisa Giovannetti and Andrew O’Connor (instructed by the Treasury Solicitor) for the secretary of state.
Owen Davies QC and Ali Naseem Bajwa (instructed by Chambers, Bradford) for AE.
Michael Supperstone QC and Tom de la Mare (instructed by the Special Advocates’ Support Unit) as special adovcates for AE.
In May 2006, the secretary of state successfully applied to the High Court for permission to make a control order against the claimant, AE, under ss 2 and 3 of the Prevention of Terrorism Act 2005 (PTA 2005). AE was of Iraqi origin and had the right to remain in the UK. The secretary of state replaced earlier control orders with a fresh order in which a 14-hour curfew was imposed and visitors to his home were prohibited during curfew hours. The curfew was later extended to 16 hours and the prohibition on visitors extended to non-curfew hours. The matter came before the court on a review of both orders and on AE’s appeal against those modifications. A closed judgment was also delivered.
Mr Justice Silber:
AE’s counsel described the hearings on the applications with much of the evidence being closed and so outside the knowledge of AE and his legal advisers as being “Kafkaesque” and grossly unfair to AE without it coming anywhere near satisfying the requirements of Art 6. The basis of that contention was that AE had not been given the basic information necessary to mount an effective defence to the secretary of state’s case.
It was common ground that the starting point for considering whether the Art 6 rights of a controlled person had been complied with was that the use of the special advocate procedure placed the controlled person at a grave disadvantage.
His lordship considered Secretary of State for the Home Department v MB [2007] UKHL 46, [2008] 1 All ER 657. The basis if not the ratio of that decision was there was no irreducible or minimum amount of material which had be disclosed in the open material for the Art 6 rights of a controlled person to be preserved.
Lord Bingham had explained that “the task of the courts in any given case is to decide, looking at the process as a whole, whether a procedure has been used which involved significant injustice to the controlled person”. The task was to ascertain if there had been not merely injustice but “significant injustice” as a result of the proceedings after “looking at the process as a whole”. The references to “the process as a whole” clearly covered not only the open proceedings but also the closed proceedings using the special advocate procedure.
There would be sufficient procedural protection if the limitation on those rights had been sufficiently safeguarded by the procedures followed by the judicial authorities: Jasper v United Kingdom (Application no 27052/95) [2000] ECHR 27052/95.
It would be exceptional for there to be a finding of infringement with Art 6 rights of a controlled person when the special advocate procedure was adopted
Closed material
Having considered the closed material and the reasons why it was closed, his lordship was satisfied in the instant case that the difficulties caused to AE by the adoption of the special advocate procedure were, in the words of Strasbourg decisions “strictly necessary” because of the serious security problems which would have been caused if the closed evidence and the sources of information were disclosed. The very nature of the work of security and intelligence services required secrecy if it was to be effective and there was an obvious and well-recognised need to preserve that effectiveness. Disclosure to AE of the closed material would cause serious harm because it would reveal details of the working of those services.
The difficulties caused to AE by not disclosing the closed material were in the words of the Strasbourg court “sufficiently counterbalanced by the procedures followed by the judicial authorities” and that was the way in which the special advocate procedure had worked in the instant case.
There was reasonable suspicion that AE had been involved in terrorist activities, on the facts.
His lordship turned to the issue of whether or not AE’s Art 5 right to liberty had been breached. Although a 16-hour curfew would not infringe the Art 5 rights of some controlled persons, that conclusion did not mean that such a curfew was permissible in every control order. In each case it had to be considered in each case what length of curfew was appropriate to meet the conflicting needs of the rights of the controlled person and of national security; it was possible to envisage cases in which a shorter curfew was appropriate and necessary. Further, financial factors relating to the costs of monitoring AE’s activities were relevant, and might well militate in favour of an extended curfew.
The starting point for considering an appeal against a modification was to consider very carefully: first, whether or not the existing measures had adequately protected (and would continue to adequately protect) the public against the activities of the controlled person; and second, whether or not the controlled person had complied with the obligations that had been placed upon him. If the answer to each question was in the affirmative, then there had to be a strong presumption that any alterations in the control order strengthening the restrictions were unnecessary. In determining whether or not any particular restriction was necessary, anxious scrutiny should be given to the question whether the interests of the public could be protected by a less onerous obligation.
On the closed evidence in the instant case, no obligation other than increasing the curfew by two hours would be effective to protect the public. However, the extension of the ban on visitors would not so protect the public. Accordingly, that modification would be deleted.
