Disclosure required for fair terror suspect trial

(i) allowed the Home Secretary’s appeals in AF’s case from Mr Justice Stanley Burnton (The Times April 25, 2008; [2008] 4 All ER 340) and in AN’s case from Mr Justice Mitting ([2008] EWHC 372 (Admin)) that further disclosure to the controlled person was necessary on a hearing, under section 3(10) of the Prevention of Terrorism Act 2005, to satisfy the fair trial requirements of article 6.1 of the European Convention on Human Rights, as scheduled to the Human Rights Act 1998; and

(ii) dismissed AE’s appeal from Mr Justice Silber ([2008] EWHC 585 (Admin)) that non-disclosure had not rendered the hearing unfair for the purposes of article 6.

In A v United Kingdom (Application No 3455/05) (unreported, February 19, 2009) the Grand Chamber of the European Court of Human Rights at Strasbourg addressed the extent to which the admission of closed material was compatible with the fair hearing requirements of article 5.4, challenging lawfulness of detention, which imported the same rights as article 6.1 in its criminal aspect.

Lord Pannick, QC, Mr Timothy Otty, QC, Mr Zubair Ahmad and Mr Tom Hickman for AF; Mr Hugo Keith, QC and Mr Jeremy Johnson special advocates for AF.

Mr Tim Owen, QC and Mr Raza Husain for AN; Mr Angus McCullough and Mr Paul Bowen special advocates for AN.

Mr Tim Owen, QC and Mr Ali Naseem Bajwa for AE; Mr Michael Supperstone, QC and Mr Tom de la Mare special advocates for AE.

Mr Michael Fordham, QC, Ms Jemima Stratford, Ms Shaheed Fatima and Mr Tom Richards for JUSTICE, intervening.

Mr James Eadie, QC, Mr Tim Eicke, Miss Cecilia Ivimy, Mr Andrew O’Connor and Ms Kate Grange for the Home Secretary.

LORD PHILLIPS, having referred to the statutory rules and the Court of Appeal’s majority below, which applied Secretary of State for the Home Department v MB (The Times November 6, 2007; [2008] AC 440) in which the majority of the House concluded that, although it would usually be possible, with the special advocate’s assistance, for the controlled person to have a fair trial despite the use of closed material, in rare cases failure to disclose would be incompatible with article 6 and in those circumstances compatibility was to be achieved by reading down the statutory rules governing section 3(10) hearings providing for non-disclosure in such hearings.

The Grand Chamber in A provided the definitive resolution of the present issue. The essence of the decision (at paragraph 220) established that the controlled person had to be given sufficient information about the allegations against him to enable him to give effective instructions in relation to them.

Provided that requirement was satisfied, there could be a fair trial notwithstanding that he was not provided with the detail or sources of the evidence forming the basis of the allegations.

Where, however, the open material consisted purely of general assertions and the case was based solely or to a decisive degree on closed materials, the requirements of a fair trial would not be satisfied, however cogent the case based on the closed materials might be.

His Lordship rejected the appellants’ submission that the present case was about the requirements of fair process, not whether the outcomes of the individual cases were just. It was not possible to draw that distinction. The object of the procedure was to ensure, as far as possible, that the outcome accorded with the law.

There were strong policy considerations supporting a rule that a trial procedure could never be considered fair if a party was kept in ignorance of the case against him.

The first was that there would be many cases where it was impossible for the court to be confident that disclosure would make no difference.

Feelings of resentment would be aroused if a party was placed in a position where it was impossible for him to influence the result. Resentment would understandably also be felt by his family and friends if sanctions were imposed on him on grounds that led to his being suspected of involvement in terrorism without any proper explanation of what those grounds were.

If the wider public were to have confidence in the justice system they needed to be able to see that justice was done rather than being asked to take it on trust.

The best way of producing a fair trial was to ensure that a party had the fullest information of the allegations against him and the supporting evidence. Where that was documentary, he should have access to the documents; where oral, he should be entitled to cross-examine the witnesses and their identities should be disclosed.

Our criminal and civil procedures set out to achieve those aims. In some circumstances they ran into conflict with other aspects of the public interest particularly where national security was involved. How that conflict was to be resolved was a matter for Parliament and government, subject to the law laid down by Parliament.

That law now included the Convention, as applied by the 1998 Act which required the courts to act compatibly with Convention rights, in so far as Parliament permitted, and to take into account the Strasbourg jurisprudence. That was why the clear terms of A v United Kingdom resolved the present issue.

Before A, Strasbourg had made it plain that the exigencies of national security could justify non-disclosure of relevant material, provided counterbalancing procedures ensured the party a substantial measure of procedural justice.

The Grand Chamber now made clear that non-disclosure could not go so far as to deny him knowledge of the essence of the case against him, at least where he was at risk of consequences as severe as those normally imposed under a control order.

It recognised in A that, where the interests of national security were concerned in the context of combating terrorism, it might be acceptable not to disclose the source of evidence that founded the grounds of suspicion of a person’s involvement in terrorism-related activities.

No party suggested that the reading down of the 2005 Act, as determined in MB, should be replaced with a declaration of incompatibility and there was good reason to let the reading down stand. His Lordship proposed that course.

Therefore, in a section 3(10) hearing, the judge would have to consider not merely the allegations to be disclosed so as to place in the open sufficient to satisfy the requirements laid down by the Grand Chamber, but whether there was any other matter whose disclosure was essential to the fairness of the trial. Each case would be remitted to the judge for further consideration.

Lord Hoffmann, Lord Hope, Lord Scott, Lady Hale, Lord Carswell and Lord Brown delivered opinions concurring in the result; Lord Rodger and Lord Walker agreed with Lord Phillips.

Solicitors: Middleweeks, Manchester and Treasury Solicitor’s Special Advocates Support Office.

Birnberg Peirce & Partners and Special Advocates Support Office.

Chambers, Bradford and Special Advocates Support Office.

Clifford Chance LLP

Treasury Solicitor