Human rights and judicial review in the past year – Part 3/4: Article 6, the right to a fair trial

25 October 2010 by Angus McCullough KC

This post is adapted from a presentation given at the Justice Human Rights Law Conference, and will be split into four parts.

This post is adapted from a presentation given at the Justice Human Rights Law Conference, and will be split into four parts. Part 1 can be found here and part 2 here.

Today I concentrate on Article 6: the right to a fair trial (click here for previous posts on Article 6).

ARTICLE 6: Right to a fair trial

Secret evidence

Most of the significant cases have been in the fallout from the HL decision in AF (No.3) [2009] UKHL 28 in which it had been held (with varying degrees of enthusiasm) that in control order proceedings, Article 6 required the controlled person to be told enough of the case against him to enable him to give effective instructions to his special advocate.

R (SSHD) v. BC [2009] EWHC 2927 (Admin), Collins J

Article 6 was held to apply to so-called “light touch” control orders, imposing less restrictive obligations than the usual control orders that were under consideration in AF (No. 3). There remained an irreducible minimum of disclosure, and that minimum applied even where it was suggested that the restrictions imposed were light or not severe.

Home Office v. Tariq [2010] EWCA Civ 462

Bank Mellat v. HM Treasury [2010] EWCA Civ 483

Al Rawi and others v. Security Service & Ors [2010] EWCA Civ 482 (04 May 2010) – read our post on the three judgments here and here. Also, see this comment on open justice.

None of this trio of cases, decided by the CA within 24 hours of each other, was in fact a JR case. Nevertheless, they are worth noting here as indicating the important role of Article 6 in pushing back against the otherwise expanding creep of closed proceedings in a wide range of contexts.

(i) Tariq was a discrimination claim brought in the Employment Tribunal against the Home Office. The Home Office sought to rely on secret material pursuant to the closed material procedure for national security cases prescribed in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. It was held that AF No. 3 and Article 6 applied so as to modify the procedure, but that this procedure was not otherwise inherently unlawful by reference to EU law or Article 6.

(ii) In Bank Mellat, a similar conclusion was reached in relation to the freezing of a foreign bank‟s assets. The closed procedures in CPR Part 79 (i.e. the same procedures as are applicable to the control order regime) were applied through a Financial Restrictions Order made pursuant to schedule 7 to the Counter-Terrorism Act 2008. However, in the light of AF (No.3) these procedures were required to be read as modified so as to give the “core irreducible minimum” of disclosure required to achieve compliance with Article 6. Al Rawi is the long-running civil claim, by which British residents who had been detained in Guantanamo Bay are seeking damages against the UK Government for its alleged complicity in their illegal detention, rendition, and mistreatment. The CA overturned Silber J‟s ruling that a „closed evidence procedure‟ (equivalent to that set out in Part 79 of the CPR, such as is applied in control order proceedings) could be adopted in the absence of any statutory authority in relation to secret evidence: there was no scope to adopt a procedure in civil proceedings other than conventional public interest immunity.

The primary reason for our conclusion is that, by acceding to the defendants’ argument, the court, while purportedly developing the common law, would in fact be undermining one of its most fundamental principles. [§12]

A (A Child) v. Chief Constable of Dorset Police [2010] EWHC 1748 (Admin), Blake J – Read our post

This was a judicial review case, in which the principles identified by the CA in the private law context of Al Rawi were applied in the public law sphere (albeit including a damages claim against the police). The context is slightly convoluted. The Claimant was a 16 year old who had brought a claim for judicial review against the police, based on an alleged breach of Article 5, in which he sought declaratory relief and damages. The application being considered by Blake J was brought by an interested party, who sought to prevent disclosure of material by the police to the Claimant as it was said that this included information that was confidential to the interested party and would be in breach of the interested party‟s Article 8 rights. Essentially, applying Al Rawi, it was found that there was no basis on which to deprive the Claimant of disclosure of information relevant to the issues in the case.

W (Algeria) and 7 Others v Secretary of State for the Home Department [2010] EWCA Civ 898 – Read our post

It was confirmed that Article 6, and the HL decision in AF (No. 3), did not extend to proceedings before the Special Immigration Appeals Commission. Accordingly, the statutory procedure before SIAC applies, unmitigated by Article 6.

Right to asylum in EU Law does not import Article 6 rights

MK (Iran) v. SSHD [2010] EWCA Civ 115 – read our post

Directive 2004/83, which recognised for the first time the right to asylum as part of EU law rather than simply as an obligation under the Convention relating to the Status of Refugees 1951 (United Nations), did not alter the jurisprudence of the ECtHR that asylum decisions did not fall within Article 6(1) and a foreign national had no right under Convention law to claim for damages for the delay in processing his asylum application.

Part 1 can be found here and part 2 here. Tomorrow: Article 12, the right to marry.

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