Another control order ruled unlawful for breach of right to fair trial
11 February 2012
AT v Secretary of State for the Home Department  EWCA Civ 42 – Read Judgment
The Court of Appeal has upheld a challenge to a control order on the basis that the person subject to the order (‘the controllee’) had not been given sufficient information about the case against him.
How do you solve a problem like a suspected terrorist? For successive governments, the answer has proved to be far from straightforward, as the recent controversy surrounding radical cleric Abu Qatada has demonstrated.
The focus of this blog post is on yet another challenge to the imposition of a control order. Introduced by the Labour government in the Prevention of Terrorism Act 2005, a control order is a controversial tool used to restrict and monitor suspected terrorists. They have now been superseded by Terrorism Prevention and Investigation Measures (or “TPIMs”, described by some critics as “control orders lite”), which will in due course have their time in the legal spotlight. For now, there remain a small number of cases brought under the old control orders regime which are being determined. As this decision demonstrates, even their consignment to history has not shielded them from careful judicial scrutiny.
“AT” is a Lybian national who was granted asylum in the UK in 2003. At that time, he was a member of the Libyan Islamic Fighting Group (LIFG), an organisation involved in armed opposition to the now-ousted Ghaddaffi regime, that was later proscribed under the Terrorism Act 2000. Following a chequered history of arrests and detentions, a non-derogating control order was served on AT on 3rd April 2008 with the permission of Collins J. That order was upheld by Mitting J on 20th March 2009, and again upheld following a review, in March 2010. It was this later decision that the Court of Appeal was examining in this case.
Various grounds of appeal were advanced by AT against the decision of Mitting J, although the majority were swiftly dealt with by the Court of Appeal as involving little more than challenges to factual assessments made by the judge which were properly within his discretion. The key question in this appeal, as identified by Carnwath LJ in giving the leading judgment, was whether or not there had been adequate disclosure to AT of the case against him which was said to justify the control order, so that he had a chance to respond. As explained in previous posts, knowing the case against you is a fundamental part of procedural fairness, as required by Articles 6 and 5(4) of the European Convention of Human Rights (ECHR) and the rule of law. Thus the essential question was: had there been a fair trial?
The basic problem with these sorts of cases is that the evidence used to justify the imposition of such restrictive measures is often highly sensitive, and disclosing such evidence could have damaging implications for the safety of individuals or indeed for national security. To get around this issue, a complex system has been developed whereby the case against the controlee is presented in a series of open and closed “National Security Statements”. The controlee is able to see the content of the open statements, but cannot see the content of the closed statements. Such closed material may be seen by a special advocate, whose role is to question the need for secrecy and put arguments on behalf of the controlee, but the special advocate’s ability to operate effectively is inevitably limited by their inability to take instructions from the controlee on the whole of the case again him or her, in particular that part which remains “closed”.
In this case, AT was provided with three open National Security Statements which contained the allegations that AT remained “a significant and influential member” of the LIFG, and that given the opportunity, he would “attempt to involve himself in terrorism-related activity in the future, utilising and/or influencing the LIFG associates in the UK and overseas to help progress the pan-Islamist agenda of the LIFG”. AT denied that he remained a member of the LIFG and asserted that he retained no meaningful links with that organisation. Nevertheless, as he was not provided details as to the reasons that the Security Services asserted that he remained a member, he was not able to do much more than issue such a denial.
Whether or not this was sufficient for the purposes of the requirements of fairness under Articles 5(4) and 6 of the ECHR had to be determined by reference to a judgement of the European Court of Human Rights in the case of A v United Kingdom 3455/05 (2009) 49 EHRR 29, which was handed down just before Mitting J handed down his own judgment in AT’s case. The essence of that ruling was later described by Lord Phillips in AF (No. 3)  UKHL 28 as follows at paragraph 59 of the judgment:
…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 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 would be.
At the time Mitting J gave his judgment, this House of Lords judgment had not been handed down, and although he was aware of the decision of the Strasbourg decision, he was strictly bound by the earlier decision of the Court of Appeal decision in SSHD v AF. AM and AN  EWCA Civ 1148 (which was to become known as AF (No. 3) when it was overturned by the House of Lords): the Court of Appeal had held that there was no “irreducible minimum” of information which must be disclosed to ensure fairness to the subject of the control order. Nevertheless, Mitting J attempted to reach his decision taking into account the more stringent requirement articulated by the European Court.
Mitting J concluded that the essential allegations upon which the control order was based were that, amongst other things, AT remained an influential member of the LIFG, that he had supported terrorist networks through the distribution of false documents, and that he had supported the LIFG through the transfer of funds. He concluded that AT had been able to provide adequate instructions to his special advocates on those issues. The procedure had therefore been fair, and the conclusion that the control order was necessary to protect the public from terrorism, as required by statute, was a proper one.
Essentially, Carnwath LJ endorsed the application of the test set by the European Court in A v United Kingdom and elucidated in AF (No. 3). However, he came to a different conclusion in applying that test. He concluded that the allegation that AT remained an important member of LIFG was an important part of the justification for the control order, but that there was no evidence contained in the open material to support that assertion. It was a general allegation based upon evidence, and not evidence itself. It therefore had to be the case that such information was contained in the closed material. As such material had not been disclosed to AT and he had not been able to respond to it, there had not been adequate disclosure in this case, and the appeal against the decision of Mitting J was allowed.
As commented upon in a previous post, the use of closed material procedures such as the employment of special advocates has found some success in securing technical compliance with Article 6, but that does not mean that their use should be described as “fair” by traditional common law standards. They will always represent a departure, to some extent, from the cardinal principle that one has the right to know the details of the case one has to meet. Decisions such as this demonstrate the desire of the court to ensure that such departures remain tethered to the post.
As governments continue to grapple with this difficult issue, the tools and labels will change, from control orders to TPIMs, and perhaps to other acronyms in the future, but it is to be hoped that such encroachments on the principles of fairness will remain strictly limited.
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