Neutral Citation Number: [2007] EWHC 2938 (Admin)

Case No: PTA/7/2006
PTA/7/2007

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11 December 2007 

Before :

Mr Justice Collins

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	Re: Bullivant		

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Hearing date: 6 December 2007
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Judgment
Mr Justice COLLINS : 
1.	Although this case has been listed under the initials AG, the anonymity order has since been revoked because the respondent had absconded and so broken the conditions of the order.  He has been prosecuted for such breach and, as I understand, pleaded guilty yesterday (6 December 2007).
2.	The hearing before me was for the purpose of disclosure since the special advocates instructed to look after the interests of the respondent had applied under CPR 76.29 for additional disclosure of material which the Secretary of State had applied for permission to withhold.  CPR 76.29(8) prohibits the court from directing disclosure “where it considers that the disclosure of that material would be contrary to the public interest”.  Normally, such applications would for obvious reasons be considered in a closed hearing, but the parties were anxious that consideration should be given to the effect of the decision of the House of Lords in Secretary of State for the Home Department v MB [2007] UKHL 46 which was handed down on 31 October 2007 on Rule 29 hearings and, more generally, on the correct approach of the court in dealing with Control Orders to determination of the question whether there had, despite the use of a special advocate, been a fair hearing.  Arguments on these issues took place in open court since only general principles were being dealt with.  The respondent’s representatives were not present, partly due to a misunderstanding of what was to be considered at the hearing.  However, they were contacted and were content that the hearing should go ahead since they were satisfied that all the submissions which they would have wished to put forward were being deployed by the special advocate and they had submitted some observations in writing, which, of course, I have taken into account.
3.	Mr Cory-Wright, Q.C., Special Advocate, submitted that the House of Lords had made it clear that the requirement that the controlee (to use Lord Canswell’s description of a person subjected to a control order) should have a fair trial was paramount.  If the inability of the controlee to answer the essentials of the case against him meant that he was unable to mount any meaningful defence, notwithstanding the existence of the special advocate, the proceedings could not be regarded as fair and so Article 6 of the ECHR was breached.  The three judges who formed the majority on the question put it in slightly different ways.  Lady Hale would rewrite Paragraph 4(3)(d) of the Schedule to the Prevention of Terrorism Act so that it read:-
“Rules of Court … must secure  -
(d) that the relevant court is required to give permission for material not to be disclosed where it considers that the disclosure of the material would be contrary to the public interest except where to do so would be incompatible with a fair trial.”
(The words underlined being added to the wording of Paragraph 4(3)(d)).
There is an obvious problem with that since it is clear that the court could not properly give permission for disclosure if satisfied that to do so would be contrary to the public interest, where the public interest involved not disclosing to suspected terrorists material which might put the lives of individuals (for example, informants) in jeopardy or enable terrorists to use methods which avoided detection.  But she went on in Paragraph 72 to explain that this meant that in considering applications in accordance with CPR 76.29 the court would in effect put the Secretary of State to her election. Either she must disclose or, if she could not, must decide not to rely on the matter in question.  If that meant that the order could not be upheld because without disclosure the process could not be fair to the controlee, so be it.
4.	Lord Carswell identified the need to protect a State’s citizens from the risk of terrorist attacks as “one of the most important and pressing competing interests”.  He spoke of the need to balance the competing interests of the controlee and the public, but if the very essence of the controlee’s right of access to the court was impaired by the failure to disclose, notwithstanding the provision of the special advocates, the order could not properly be upheld.  He observed (Paragraph 85) that there was a “fairly heavy burden on the controlee to establish that there has been a breach of Article 6, for the legitimate public interest in withholding material on valid security grounds should be given due weight.”  It seems that, since the protection of citizens from terrorism is so important, the weight to be attached to this interest should be considerable.
5.	Lord Brown agreed with Lord Bingham that the court’s task was to decide whether ‘significant injustice’ had been occasioned to the controlee by the process as a whole.  He observed that the special advocate procedure was ‘highly likely’ in fact to safeguard the controlee against significant injustice, but could not invariably be guaranteed to do so.  He thought cases where this would occur could be likely to be exceptional.
6.	It is in my view unfortunate that the House of Lords did not see the closed material or read the closed judgments in the cases before them.  I say this because, albeit the paramountcy of procedural fairness was perhaps not in the forefront of the judges’ minds when considering CPR 76.29 applications (and the same principles were applicable in considering the equivalent procedure in SIAC hearings), nonetheless the approach was always that there must be disclosure unless the Secretary of State could establish that the public interest precluded it.  In Paragraph 66, Lady Hale observed that ‘judges and special advocates will have to probe the claim that the closed material should remain closed with great care and considerable scepticism’.  They have always applied the greatest care, knowing the grave disadvantage to the controlee caused by non-disclosure, although I am bound to say that I am not sure why she refers to the need for considerable scepticism.  The nature of the material will make clear why the objection is taken.  The suggestion that ‘there is ample evidence … of a tendency to over-claim the need for secrecy in terrorism cases’, is not valid in the experience of judges dealing with these cases, since the security services know that the judges who have dealt with these cases will not uphold objections unless persuaded that it really is necessary to keep the material undisclosed.
7.	How then is it to be decided whether a particular matter should be disclosed to avoid a breach of Article 6?  Regrettably, the House of Lords has provided no ready answer.  There is no irreducible minimum.  No doubt, it would be very difficult if not impossible to produce a test which could be applied and which could provide an answer in all cases.  Lady Hale refers in Paragraph 63 to the difference between background information which is not essential to the outcome of the case and evidence which is ‘crucial to its determination’.  In Paragraph 68 she talks of the few cases in which :-
“The material which is crucial to demonstrating the reasonable basis of the Secretary of State’s suspicions or fears cannot be disclosed in any way which will enable the controlled person to give such answers as he may have.”
In Paragraph 74 she said:-
“It is quite possible for the court to provide a controlled person with a sufficient measure of procedural protection even though the whole evidential basis for the basic allegation, which has been explained to him, cannot be disclosed.”
Thus her test seems to be that, absent disclosure of evidence which is crucial, there will be likely to be unfairness. But, as Mr Cory-Wright points out,  various individual pieces of evidence are likely to be crucial in establishing the reasonable suspicion.  Once they are put together, the suspicion is established.  Thus, submits Mr Cory-Wright, it is necessary to look at the accretion and so it may be necessary to disclose a number of different pieces of evidence since, if the controlee can show a defence to one or more, the overall case against him will be weakened or destroyed.
8.	All the members of the House of Lords clearly believed that the judge who considered each case was in the best position to decide whether overall there had been the necessary degree of fairness.  This would only be done once the open and closed hearings had taken place because only then could it be seen whether the lack of knowledge of some crucial piece of evidence had, despite the special advocate’s presence, meant that a possible defence could not be considered.  The fairness of the process as a whole is what must be looked at and that will include considering whether in reality there could have been a meaningful defence to the matters relied on to establish the reasonable suspicion.
9.	The result of the House of Lords decision is that the Secretary of State must in considering what can be served as open material only seek to withhold that which it is clearly in the public interest not to disclose.  She must be as open as possible. Before seeing the closed material, the special advocate can be involved with the controlee and his representatives and so understand such defence as he may put forward.  Subsequently, he can receive any further information from the controlee or his representative.  At the Rule 29 hearing, the special advocate will identify the matters which he regards as crucial and may in due course submit that a failure to disclose by way of gisting or otherwise will have rendered the process unfair and in breach of Article 6.  The court will look carefully to ensure that any objection is properly based but should not save perhaps in the most exceptional circumstances where, for example, there is reliance on one piece of evidence which, if known, might be explained away at that stage direct election on fairness grounds alone.  It is not until there has been testing of the evidence through the open and closed hearings that it will become clear whether indeed non-disclosure will have rendered the proceedings so unfair as to constitute a breach of Article 6.  Furthermore, the duty to consider whether further disclosure should take place is ongoing and, if it appears to the court that disclosure should take place at any stage of the proceedings, it should so order.  Again, this should not be on fairness grounds alone.  At the conclusion of the hearing, the court must decide, no doubt having heard submissions by the special advocate and on behalf of the Secretary of State, whether there has been a breach of Article 6 and give the Secretary of State the opportunity to remedy the breach by some further disclosure.  If such disclosure does then take place, the controlee will have to be given the opportunity to deal with it and a further hearing may be needed.
10.	Generally speaking, if the controlee wishes to give evidence, he should do so in the open hearing before the commencement of the closed hearing.  This will enable the special advocate to focus his cross-examination.  If there is further disclosure, the controlee can if he wishes be recalled.
11.	It will, I think, be clear that I do not accept that individual pieces of evidence which go to make up the whole case should be viewed in isolation in deciding whether they are crucial.  It is the final picture that needs to be looked at.  Then and only then can it be decided what further disclosure should occur and in what form if the Secretary of State is not to fail to maintain the Order.  And it is only then that the court will be able to decide whether, despite the non-disclosure, to uphold the order would be fair since no defence could have allayed the reasonable suspicion that the law requires to be established.